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AFPM: Oregon’s proposed low carbon fuel standard is unconstitutional

Hydrocarbon Engineering,

The American Fuel & Petrochemical Manufacturers (AFPM) has submitted comments in response to the Oregon Department of Environmental Quality’s (DEQ) Clean Fuels Program Phase 2 Rulemaking and the proposed rule changes to the Oregon Clean Fuels Program.

“Oregon’s version of a Low Carbon Fuel Standard is unconstitutional because it discriminates against out of state gasoline and diesel fuel providers in order to promote the development of an in state biofuels program and imposes more stringent requirements on out of state ethanol producers. The Oregon LCFS will harm consumers while providing little to no environmental benefit”, said AFPM General Counsel Richard Moskowitz.

In its comment, AFPM specifically argues that Phase 2 of the Oregon Clean Fuels Program, if adopted:

  • Established a fuel standard that is expressly pre-empted by the Clean Air Act (CAA).
  • Discriminates against out of state and foreign commerce in violation of the Commerce Clause of the US Constitution.
  • Raises serious policy questions that DEQ has not addressed and that undermine the state legislature’s objective to reduce GHG emissions.

“In addition to the legal concerns, the Oregon LCFS will hit consumers directly in the wallet. Numerous LCFS studies show that such programs will drive up fuel costs substantially. It’s simply what happens when you have a government mandate that tries to force the use of fuels that either don’t exist, or that consumers don’t want, or – in this case – both”, Moskowitz added.

“To add insult to injury, the Oregon LCFS will not accomplish its alleged intended purpose of addressing climate change, as GHG emissions have the same impact whether they are emitted in Portland, Philadelphia or Poland.

“So basically, what you’ve got is a program that’s highly problematic from a legal perspective, that will cost consumers a lot of money, and that will very likely fail to meet it’s goal even if it’s fully implemented. That ought to cause quite a bit of concern to Oregonians and consumers across the country who live in states that are considering going down this road”.

Adapted from a press release by Emma McAleavey.

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