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Business Groups Sue Oregon Gov. Kate Brown Over Carbon-reduction Policy

Hundreds of people protest in favor of cap-and-trade legislation at the Oregon Capitol in Salem, Oregon, Wednesday, Feb. 6, 2019. The bill aims to limit carbon emissions.
Hundreds of people protest in favor of cap-and-trade legislation at the Oregon Capitol in Salem, Oregon, Wednesday, Feb. 6, 2019. The bill aims to limit carbon emissions.

A coalition of business and trade groups says Gov. Kate Brown illegally overstepped her authority in March when she issued an executive order mandating steep greenhouse gas reductions in the state.

In a long-anticipated legal challenge filed Friday, the groups have asked a judge to rule the governor’s order invalid, arguing she violated the state constitution by performing a law-making function reserved for the state Legislature.

“Under the Oregon Constitution, the governor is not vested with the power to make law, regardless of the policy objective,” said the complaint, filed in Marion County Circuit Court.

Plaintiffs in the case include Oregon Business & Industry, Oregon Manufacturers and Commerce, the Oregon Farm Bureau, Oregon Forest & Industries Council, and the Oregon Trucking Association. Three individual businesses have also signed on.

Issued March 10, the executive orderrequires a wide array of state agencies to enact rules and take actions that will result in an 80% reduction in Oregon’s greenhouse gas output by 2050. As part of those efforts, polluters in the industrial, transportation and natural-gas sectors would have their emissions capped, and gradually reduced, by the state’s Environmental Quality Commission.

Brown has also instructed agencies to ratchet down the carbon intensity of fuels in the state, reducing emissions “per unit of fuel energy” to 20% below 2015 levels by 2030, and 25% by 2035.

The order was Brown’s response to Republican maneuvering that twice killed legislation that would have accomplished many of the same goals. Republican lawmakers walked away from the Capitol in both the 2019 and 2020 legislative sessions, denying majority Democrats the quorum they needed to pass their carbon proposal.

The new lawsuit argues Brown has stepped on the Legislature’s constitutional toes by unilaterally changing carbon standards that lawmakers have set in the past.

“The Legislature has already spoken and fixed goals and standards,” said Joel Mullin, an attorney with the firm Stoel Rives who is representing the plaintiffs. “The question is whether or not, when there is legislation that has been enacted and efforts legislatively to [change] those enactments, the governor can by executive fiat overturn what’s in law.”

The governor’s office did not immediately respond to a request for comment. Brown and her attorneys have said in the past they worked extensively with the Oregon Department of Justice to bulletproof the order from expected legal challenges.

Notably, the governor’s office believes its case in court will be stronger because Republicans twice resorted to walking out to block carbon-reduction bills.

Those walkouts could convince courts that “the Legislature is simply incapable of acting on these issues, and that the executive branch is the only branch capable of acting on climate,” Brown’s general counsel, Dustin Buehler, wrote earlier this year. “That dynamic, in turn, could make Oregon courts more comfortable upholding the validity of executive action on climate.”

The lawsuit filed Friday is the second challenge to Brown’s executive authority in recent months. In May, a collection of churches and businesses sued the governor over her emergency order closing businesses and prohibiting large gatherings in response to the COVID-19 pandemic. The suit was ultimately shot down by the Oregon Supreme Court, which found the orders fell under the governor’s emergency powers.

Dirk VanderHart is JPR's Salem correspondent reporting from the Oregon State Capitol. His reporting is funded through a collaboration among public radio stations in Oregon and Washington that includes JPR.