In November 2022, a coalition of cities and one county filed a lawsuit relating to the Climate Friendly and Equitable Community (CFEC) rules adopted by the Land Conservation and Development Commission. The CFEC rules were adopted in response to former Gov. Kate Brown’s Executive Order which directed state agencies to take actions to reduce greenhouse gas emissions. I agree with former Gov. Brown’s directive, but questions raised by legal challenges to the CFEC rules need answered so that the Legislature and the cities we represent have clarity on our authorities in balancing the need for more affordable housing and reducing greenhouse gas emissions.
I am a former mayor of the City of Springfield, and I know how the laws we pass and the rules agencies adopt impact the management of our local governments. I also know that the City of Springfield and the other cities in the coalition have been — and remain — supportive of goals to reduce greenhouse gas emissions at the local level and to build more equitable communities that give access to affordable housing and transportation options for all residents.
In April and September 2023, I stood alongside them to articulate these concerns before the House Committee Agriculture, Land Use, Natural Resources and Water and the House Committee on Climate, Energy, and Environment. I implored the legislature and the Commission to adopt rules that work with communities to advance CFEC goals instead of directing how communities advance CFEC goals.
I’ve been working with the City of Springfield as a legislator on implementing Governor Brown’s EO. It became clear to me that this EO was well-intended but did not create a scenario where cities had the best chances of success. It’s an example of a law that works for some but does not fit for all Oregon cities – each community has different resources and abilities to implement a respective timeline.
Our actions in the legislature have tremendous impacts on cities and we often ask communities to implement while not providing extra resources. Communities often do not have time to complete the work asked of them. We need to fundamentally grow our understanding and respect for the impacts that our state bodies have on the local governments we represent.
Resolving these questions with this EO is pivotal to future rulemaking by all state agencies, and of Oregon’s land use system as it pertains to the CFEC rules.
In March 2024, the Oregon Court of Appeals ruled in favor of two of the individual rule challenges brought forth by the coalition of cities, but otherwise rejected the cities arguments concerning whether the Commission failed to follow proper rulemaking procedures or exceeded the Commission’s statutory authority in adopting the CFEC rules.
In so doing, the court relied on legal reasoning that appears to conflict with prior case law and is highly deferential to agencies, injecting uncertainty into how courts ensure that agencies act only within the powers they are granted by statute.
This month, the coalition of cities is appealing the decision in order to ensure good governance in Oregon’s rulemaking process. As a legislator, I put my name on a bipartisan amicus brief—also known as a “friend of the court petition.” The purpose of this brief is to encourage the Oregon Supreme Court to hear this case. The court’s decision will significantly affect how future courts engage in judicial review of rulemaking and, by implication, how legislators must adjust their work when granting rulemaking power to agencies.
While I have supported the city and county coalition in their specific concerns with the CFEC rules, this amicus brief is not about the merits of those specific rules or concerns. It is about urging the Courts to provide the clarity that I, and my colleagues, need in order to do our job. I believe this is an important step to refining our system, which will positively impact our state, counties, cities and constituents.
John Lively is the state representative for House District 7 – Springfield. You can reach him at [email protected] and 503-986-1407.
