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FRANÇOIS VIGNEAULT

Portland's about to try to salvage the nation's strongest limitations on new fossil fuels facilities from the junk pile.

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This morning, City Council voted unanimously to appeal a July 19 opinion from the state's Land Use Board of Appeals (LUBA) finding that strong restrictions on new oil and natural gas terminals in city limits passed late last year are unconstitutional.

In brief, the rules prohibited new fossil fuel terminals that could carry two million gallons or more (roughly the amount of crude that can be transported in an oil train) within city limits. They also made expansion difficult for the 11 existing terminals that line the Willamette River in Northwest Portland.

The restrictions were a key accomplishment for outgoing Mayor Charlie Hales (and also a sort of stunning reversal from Hales' earlier efforts to build a new natural gas terminal) and drove local environmental advocates wild with delight. But of course the Portland Business Alliance objected. The PBA along with the Columbia Pacific Building Trades Council and the Western States Petroleum Association sought to have the city's regulations checked by LUBA.

They succeeded when one member of the three-member body found the city's policy violated the Commerce Clause of the US Constitution, and "impermissibly discriminates against or unduly burdens interstate trade in fossil fuels." The other two LUBA members recused themselves, prompting Mayor Ted Wheeler, increasingly critical of media coverage, to say in today's meeting: "I would like to add the hilarious footnote that that was reported in the press as a 'unanimous decision.'"

Anyway, the city will now put the matter before the Oregon Court of Appeals. Commissioners this morning voiced support for an appeal not simply in order to save the fossil fuels policy, but because they feared the LUBA ruling could have wider implications for city land use decisions going forward.

"We’re talking about a fundamental constitutional question decided by one member of LUBA," said Commissioner Nick Fish. "Under this ruling, greater weight is given to people who live outside of Portland than people who live inside."

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So what becomes of the fossil fuels ban while the appeal moves forward? Its unclear.

"We're reviewing that at this time," Deputy City Attorney Linly Rees told the council.