Oregon Judge Approves Calif. Emission Standards

Published June 1, 2006

An Oregon county judge on March 23 ruled Gov. Ted Kulongoski (D) could lawfully exercise line-item veto power on part of a spending bill prohibiting his Environmental Quality Commission from spending any money to enact California’s vehicle emission standards.

The ruling, while subject to an appeal to the Oregon Supreme Court or a possible rewrite of the spending provision, temporarily enacts an executive decision to ignore legislative sentiment on controversial global warming directives.

Vehicle Prices Will Rise

California emission standards are designed to address global warming concerns that remain the subject of great debate in the scientific community. Environment officials concede the new standards will add $1,000 to the price of cars and light trucks in the state, while opponents of the California standards cite studies predicting a $3,000 per-vehicle price increase.

Oregon state officials say the California standards would reduce carbon dioxide emissions from cars and light trucks by 18 percent by 2020. Other significant sources of carbon dioxide emissions, such as power plants, would be unaffected by the standards.

Circumvented Legislature

Frustrated by his inability to convince either the Republican-controlled House or the Democrat-controlled Senate that the carbon dioxide reductions are worth the price of the emission standards, Kulongoski in April 2005 formed a task force to figure out a way to implement the standards outside the legislative process. Following the task force’s advice, Kulongoski asked the Oregon Environmental Quality Commission in August to implement administrative rules enacting California’s standards.

The Environmental Quality Commission, a five-member panel appointed by the governor, serves as the policy and rulemaking board for Oregon’s Department of Environmental Quality. Kulongoski’s appointees on the commission approved his request.

After the commission defied the legislature and enacted the new regulations, the legislature in a bipartisan agreement inserted language in the Oregon Department of Environmental Quality’s budget prohibiting the agency from spending any money enforcing the new vehicle emission standards.

Kulongoski responded by striking down the spending directive using his line-item veto power. Senate Leader Ted Ferrioli (R-John Day) then filed suit contending Kulongoski had overstepped his line-item veto authority in striking down a budget prohibition rather than a spending item.

Veto Power Limited

According to Article V, Section 15a of the Oregon Constitution, “The Governor shall have power to veto single items in appropriation bills … without thereby affecting any other provision of such bill.”

In his lawsuit Ferrioli contended the line-item veto language applies solely to budgetary spending (as opposed to budgetary constraints), by which the governor is empowered to limit logrolling and excessive spending by deleting budgetary allocations in spending bills. The line-item veto, Ferrioli explained, is an important executive weapon against “take-it-all-or-leave-it-all” spending directives.

Moreover, argued Ferrioli, Kulongoski’s line-item veto ran counter to the language that prohibits line-item vetoes that have the effect of “affecting any other provision of such bill.” Striking the spending limitation affected the overall budget plan approved for the Department of Environmental Quality, Ferrioli said.

Gov’s Appointee Rejects Challenge

Marion County Judge Mary James rejected Ferrioli’s arguments, ruling the line-item veto can be applied to spending prohibitions.

James held, “The governor’s use of the line-item veto in this situation was in keeping with the other legitimate purpose … to [foil] a take-it-all or leave-it-all ploy. If the plaintiff’s reasoning is sustained, the legislature will be able to hamstring its own members by placing in appropriation bills that must be passed … substantive law that might not otherwise be approved.”

No Stranger to Controversy

The veto decision is not the first time James has made a controversial ruling in support of Kulongoski, who appointed her in 2003. In October 2005, James sided with the governor in invalidating Oregon’s Measure 37, a citizens’ property rights initiative passed by a landslide vote in 2004. The Measure 37 ruling threatened to turn the clock back to an era of runaway property abuses by state and local officials until the Oregon Supreme Court unanimously overturned James’ decision.

Citizens had launched a well-organized bid to recall James from office prior to the Oregon Supreme Court’s decision to overturn her property rights ruling. After the state supreme court ruling, recall organizers put their bid on hold.

Ferrioli has vowed to continue fighting Kulongoski’s action on vehicle emissions. “The governor bypassed the legislative process and has acted unilaterally to do what by all rights should be the product of debate and compromise,” Ferrioli told the March 24 Salem Statesman Journal. “He presents the image of one who supports public debate and an open process but shows his true colors as one who believes that his ends justify any means.”

Appeal, New Law Possible

Ferrioli indicated he may appeal James’ decision and may also consider revised legislation that would not be subject to any plausible line-item veto.

“It is notable that even in Oregon, which is a hotbed for environmental activists, the state legislature has spoken in bipartisan fashion that the California vehicle emissions are costly and ineffective,” said Marlo Lewis, a senior fellow with the Competitive Enterprise Institute.

“Maverick decisions, rubberstamped by one’s own political appointees, hardly exhibit good-faith lawmaking or reflect the will of the people,” added Lewis. “Kulongoski is treading on very thin ice both legally and politically. This will likely not be the last we’ll hear on this issue in Oregon.”

James Hoare ([email protected]) is an attorney practicing in Syracuse, New York.

For more information …

Marion County Judge Mary James’ decision in Ferrioli v. Oregon Dept. of Environmental Quality, issued March 23, 2006, is available online at http://www.calcleancars.org/legal/Opinion_Letter_MSJ.pdf.

The Recall Judge James Web site is http://www.recalljudgejames.com/.

“Recall Targets Judge in Measure 37 Case,” Salem Statesman Journal, October 27, 2005, http://statesmanjournal.com/apps/pbcs.dll/article?aid=/20051027/state/510270368.

“Judge Clears Tougher Rules for Emissions,” Salem Statesman Journal, March 24, 2006, http://www.statesmanjournal.com/apps/pbcs.dll/article?aid=/20060324/news/603240325.