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American Fuel & Petrochemical Manufacturers v. O'Keeffe

ELR Citation: 48 ELR 20158
Nos. 15-35834, (9th Cir., 09/07/2018)

The Ninth Circuit affirmed the dismissal of oil and trucking industry groups' challenge to Oregon's Clean Fuels Program, which regulates production and sale of transportation fuels based on greenhouse gas emissions. The groups argued that the program violated the dormant Commerce Clause by facially discriminating against out-of-state fuels in assigning petroleum and Midwest ethanol higher carbon intensities than Oregon biofuels. But the court disagreed, concluding that the program discriminated against fuels based on lifecycle greenhouse gas emissions, not state of origin. The groups further argued that the program was preempted by §211(c) of the CAA. But the court held that EPA's decision not to regulate methane under §211(k) of the CAA was not a finding that regulating methane's contributions to greenhouse gas emissions was unnecessary, and thus the decision not to regulate was not preemptive under §211(c).