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Oregon Court of Appeals Largely Rejects Challenge to the Climate-Friendly and Equitable Communities Rules
In March 2020, Governor Kate Brown issued Executive Order 20-04, directing state agencies to take action to reduce greenhouse gas emissions. That fall, the Oregon Department of Land Conservation and Development (DLCD) and the Land Conservation and Development Commission (LCDC) initiated rulemaking to implement the governor’s directive. On July 21, 2022, the LCDC adopted the Climate-Friendly and Equitable Communities (CFEC) rules—89 rules in total—which, in general, require local governments to adopt zoning regulations and amend their transportation system plans in specific ways meant to reduce the use of automobiles.
In November 2022, 13 Oregon cities and Marion County, as well as a variety of interested industry parties, petitioned the court of appeals for judicial review of the CFEC rules, requesting their invalidation on multiple procedural and substantive grounds.
The LOC filed a friend-of-the-court brief in support of the cities and county. While the LOC supports the underlying objectives, it opposes many of the CFEC rules that are essentially statewide zoning regulations that infringe on local land use planning authority and interfere with the adoption of implementation measures tailored to the unique circumstances of individual communities. In its brief, the LOC argued that the rules are invalid because they:
- Violate legislative policy for local government control over land use planning;
- Are outside the LCDC’s statutory authority;
- Contravene statewide planning goals; and
- Implement an executive order rather than a statewide planning goal.
The Oregon Court of Appeals heard oral arguments on July 12, 2023, and released their opinion on March 6, 2024. The court upheld 87 of the 89 CFEC rules, invalidating only OAR 660-012-0830(1)(c) (because the LCDC did not provide sufficient notice of the subject matter) and OAR 660-012-0920(7)(c) (because the LCDC does not have statutory authority to revoke acknowledgment of a transportation system plan).
The court rejected all other procedural arguments asserted by petitioners. Of note, the court held that the mandate that rulemaking notices identify the statutory authority for proposed rules does not require that citations to the authority be correct or even provided for each rule.
The court’s analysis of the substantive challenges is limited. It did not affirmatively hold that the LCDC had statutory authority to adopt the CFEC rules or evaluate whether the rules contravened Oregon’s comprehensive land use planning system. Rather, the court held that petitioners have the burden to demonstrate an agency’s lack of statutory/discretion, and such a challenge must be directed to individual rules. Because petitioners and the LOC requested invalidation of the rules as a whole, the court stated that it did not discern a route for invalidating particular rules, even if set out as an example of a rule that exceeded statutory authority or contravened state policy.
Petitioners have 35 days from the date of the decision to seek review by the Oregon Supreme Court. Parties seeking to participate as amicus curiae then have 14 days to file a motion to appear along with their amicus brief.
The LOC would like to thank Steven Liday and Will Rasmussen of Miller Nash LLP for their excellent work on this matter.
Contact: Jayme Pierce, General Counsel - jpierce@orcities.org
Last Updated 3/8/24
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