Oregon is the first state in the nation to declare its independence from in-state coal power
July 19, 2011
Monumental Victory for Pacific Environmental Advocacy Center (PEAC) Clients
Northwest residents can look forward to cleaner air in the next ten years as conservation groups, represented by PEAC, and Portland General Electric (PGE) today announced an agreement that establishes a $2.5 million fund for environmental restoration and job-creating clean energy projects in Oregon, reduces acid rain-causing pollution from PGE’s Boardman coal-fired power plant, and requires the plant to cease burning coal by no later than 2020 through a court-enforceable decree.
In 2008, Columbia Riverkeeper, Friends of the Columbia Gorge, Hells Canyon Preservation Council (HCPC), Northwest Environmental Defense Center (NEDC) and the Sierra Club, with legal representation from PEAC, launched a campaign to clean up the Boardman plant. Today’s agreement successfully concludes that campaign and resolves a pending federal lawsuit alleging illegal pollution from the plant.
Additional Case Details and Background:
Our clients, Sierra Club, Friends of the Columbia Gorge, Columbia Riverkeeper, Northwest Environmental Defense Center, and Hells Canyon Preservation Council lodged a consent decree on July 19, 2011, with the court that provides for a cessation of coal burning at Portland General Electric’s Boardman plant by the end of 2020, decreases sulfur dioxide pollution from 2015 to 2020 by 3,000 tons beyond that called for by current rules, and creates a $2.5 million charitable fund at the Oregon Community Foundation. This fund, called the Penstemon Fund, provides money for land acquisition and habitat restoration in the Columbia River Gorge, Hells Canyon, and Eagle Cap, investment in community based renewable energy generation projects, and funds for clean air advocacy in Oregon and Washington. The fund is named in honor of the beautiful native wildflower. Endemic species of penstemon can be found throughout Oregon and Washington, with several species native to Hells Canyon, Eagle Cap and the Columbia River Gorge. In Greek, “penstemon” means five stamens, reflecting the cooperation of the five plaintiff organizations in this case.
In 2006, Melissa Powers, now Associate Professor of Law, and PEAC Staff Attorney Allison LaPlante began work with NEDC Executive Director, Mark Riskedahl, and NEDC students to uncover the potential Clean Air Act violations at PGE Boardman. Over the following two years, other conservation groups got involved in the issue, PEAC developed the claims, and the groups began informal talks about cleaning up Boardman with PGE. After those talks stalled, PEAC filed the federal lawsuit in September 2008. The case alleged violations spanning over three decades, from initial construction of the plant in the late 1970s up through violations that occur every day the plant operates. The law with regard to these claims is far from clear, and the case involved hotly contested jurisdictional issues, statutory interpretation in a complex federalism scheme, and provisions of law never before considered by a court in the Ninth Circuit. A case of this magnitude demands significant resources, of course, and PEAC committed fully to the case under the leadership of Lewis & Clark Law Professor Dan Rohlf, who supported PEAC’s involvement in spite of the odds.
To reach today’s favorable result, three PEAC attorneys (Aubrey Baldwin, Allison LaPlante and Tom Buchele), twenty-four PEAC students, and our co-counsel George Hays, invested over four years, over 5,000 hours of legal work, and over $100,000 for experts, depositions, and other litigation costs. PEAC attorneys and students reviewed millions of pages of documentary evidence, took eight depositions and propounded over one hundred discovery requests. Portland General Electric hired national firm Baker Botts to defend the suit, and eleven big firm attorneys filed appearances for the defense. Baker Botts produced expert reports from five separate experts. The parties filed four substantive pretrial motions, with Plaintiffs prevailing over PGE in all motions decided by the court, including a substantial motion to dismiss, a contentious motion to amend the complaint, and a complicated motion to strike Plaintiffs’ discovery responses. According to the pretrial schedule, dispositive motions were due July 22, 2011, and a two and a half week bench trial was scheduled for early December 2011.
The federal citizen suit was only one part of a multi-prong strategy to make Oregon coal-free. PEAC was primary counsel in each prong including: intervention at the Public Utility Commission in Portland General Electric’s integrated resource planning docket, participation in the Oregon Department of Environmental Quality’s (DEQ) rulemaking to reduce regional haze impacts on federally protected parks and wilderness areas, and a comprehensive public campaign in Oregon and Washington.
Taken together, these matters presented unprecedented opportunities for student learning. PEAC students were intimately involved with every aspect of the matter. In the federal citizen suit, student work included drafting the 60-day notice and complaint, briefing motions on jurisdictional, procedural, and Clean Air Act matters, developing factual and legal claims, undertaking discovery by drafting discovery requests, responding to discovery requests, reviewing and managing documents, preparing for and observing fact depositions, working with experts to prepare reports, and preparing for and attending oral argument and mediation. Before the Public Utility Commission, a PEAC student was admitted to appear under the student practice rule and during his one year at PEAC was able to engage in every phase of the matter from initial intervention through discovery through favorable decision. In the Oregon DEQ process, PEAC students worked with consulting experts, undertook comparative analyses of other state programs, and wrote convincing comments. All the while, students worked alongside PEAC attorneys counseling our clients on strategic decisions that lead them through the four years of work leading to this success.
Of the twenty-four PEAC students who worked on the case, half have gone on to use the skills and experience gained in the Boardman case in their litigation careers including:
- Zabyn Towner ’07 - Government Affairs Manager and Staff Attorney, PNGC Power, Portland, OR
- Ellen Trescot ’07 - Associate, Downy Brand, Sacramento, CA
- Bethany Cotton ’08 - Staff Attorney, Center for Biological Diversity
- Lauren Goldberg ’08 - Staff Attorney, Columbia Riverkeeper, Hood River, OR
- Austin Saylor ‘08 - US DOJ, Environment and Natural Resources Division, Washington, DC
- Lisa Widawsky ’08 – Staff Attorney, Environmental Integrity Project, Washington, DC
- Neal Clark ’09 – Field Attorney, Southern Utah Wilderness Alliance, Moab, UT
- Johannes Epke ’09 – formerly Center for Race Poverty and the Environment, San Francisco, CA
- Gilbert Mears ’09 - at EPA headquarters working on TRI and EPCRA, Washington, DC
- Kristen Monsell ’09 – Humane Society of the US, Washington, DC
- Genevieve Byrne ’10 - America’s Farmland Trust and freelance, Northampton, MA
- Ben Luckett ’10 - Staff Attorney, Appalachian Center for the Economy and the Environment, Lewisburg, VA
- John Sturm ’10 - Staff Attorney, Oregon Citizen’s Utility Board, Portland, OR
- John Krallman ’11 - EPA Region 1, Boston, MA
- The other students who worked on the case include: Allison Eshel ’09, Sarah Ghafouri ’10, Mitch Tsai ’10, Jeffery Crider ’10, Bobbie Traverso/Estes ’11, Cathy Lee LLM ’11, Elizabeth Lieberknecht, ’11, Johanna Lathrop LLM ’11, Henry LeSueur ’11, Ashley MacKenzie ’11, Amy van Saun ’11, and Aurelia Erickson ’12.
The Earthrise Law Center at Lewis & Clark Law School is located in Wood Hall.
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Karen Smith Geon
Earthrise Law Center at Lewis & Clark Law School, 10015 SW Terwilliger Blvd, Portland, OR 97219