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The city of Portland’s denial of a routine approval for a controversial oil terminal last week exposed simmering tensions between two civic bodies charged with crafting, setting and enforcing city policy.
THE CONTEXT
On Aug. 27, the Bureau of Development Services denied Zenith Energy’s application for a land use compatibility statement for its 42-acre oil terminal in Northwest Portland. That application was integral to Zenith’s renewal of an air quality permit from the Oregon Department of Environmental Quality—a permit necessary to continue operations.
Environmentalists have sought for years to block the creation or expansion of terminals, pipelines and other fossil fuel infrastructure in Portland. The city has struggled to overcome limited authority over rail and pipeline projects, which are federally regulated, but placed restrictions on new or expanded storage tank facilities in 2019. (Currently, those restrictions aren’t enforceable because they were challenged and remanded to the city).
For Zenith’s application, environmentalists focused on something over which the city has jurisdiction: whether a project meets city code. Opposition from the Multnomah County Board of Commissioners and 20 state lawmakers added heft to enviros’ bid to pressure BDS into saying no. The bureau’s reasons for denying the application included that the permit would “cover aspects of operations of the entire Zenith Energy site that are not compatible with the city’s comprehensive land use plan.”
However, correspondence between BDS and the city’s Planning and Sustainability Commission - the commission that helps advise the Bureau of Planning and Sustainability and City Council on policy matters - in late July prior to BDS’s decision to deny the application, showed considerable friction between the bureau and the commission tasked with crafting zoning codes over how to weigh Zenith’s application.
THE REQUEST
In late July, commission chair Eli Spevak sent a letter to BDS director Rebecca Esau urging the bureau to consider the city’s 2035 comprehensive land use plan when evaluating Zenith’s request.
“Since it is too late to prevent climate change, it is more important than ever that we take decisive action to limit future devastation,” said the letter, which included all the commissioners in its letterhead. “The PSC, through a multiyear process and extensive community engagement, helped craft the Comprehensive Plan to serve as a guide for making difficult decisions like the one before you now. We hope you will turn to it for that purpose.”
It continued: “We call on the City to holistically evaluate all site operations at Zenith’s facility in reviewing this LUCS, consistent with the sitewide intensification of activity that has prompted DEQ to require a new Title V permit, and to make a determination that is aligned with Comprehensive Plan goals, including those on climate, equity, and seismic impacts.”
THE REPLY
Esau shot back a pointed response on July 29. The gist of it: Stay in your lane. Esau reminded Spevak that her bureau’s duty was to make a decision based on existing policies and regulations, not bureau discretion.
“It’s rather unprecedented that the PSC would weigh in on a BDS response to a DEQ Land Use Compatibility Statement, but I understand that PSC members have strong feelings about fossil fuel facilities and climate action,” she wrote. “While I share their sense of urgency about climate change, my personal thoughts and feelings on the matter are irrelevant, as BDS is responsible to administer and enforce the regulations, policies and processes that currently exist.”
But Esau acknowledged a sticking point that complicated her bureau’s task—a lack of precise zoning codes from Spevak’s commission.
“The only reason we are having a discretionary land use process with this LUCS is because we don’t have the clear and objective tools in the Zoning Code yet. So let’s focus on getting that in place,” Esau wrote. “If we had clear Zoning Code regulations about what’s allowed and what’s not allowed, we would not need to be going through these steps of writing legally defensible findings of fact regarding a LUCS and City policies.”
Esau added that if the PSC and Portland City Council were to establish clear regulations, it would “in itself return the LUCS to what it was intended to be…a check-the-box step in response to DEQ of either yes, it complies with the local jurisdiction’s code or no, it doesn’t.”
Despite Esau’s heartburn, her bureau said no to Zenith. A Zenith spokesperson says the company intends to appeal the city’s decision.