Legal Update on Zenith’s Oil-by-Rail Terminal


Oregon Land Use Board of Appeals Rules Portland Has Authority to Deny Zenith Oil Storage Facility Permits; Must Make Additional Findings

February 3, 2022 (Portland, Ore)--Today, the Oregon Land Use Board of Appeals (“LUBA”) ruled that the City of Portland has the authority to deny Zenith’s application for a Land Use Compatibility Statement (“LUCS”), but found that the City must make additional findings in support of its decision. Zenith — which owns and operates an oil-by-rail storage and transfer facility in NW Portland — was required to seek a LUCS from the City in connection with its application to the Oregon Department of Environmental Quality (“DEQ”) for a renewal of its Title V air permit. The City’s denial of the LUCS led DEQ to deny Zenith’s renewal application and without an air quality permit, Zenith must shut down its current operations. Portland residents and environmental and community advocacy organizations will now turn toward making sure the City of Portland makes adequate additional findings in support of its decision and that Oregon DEQ’s rejection of Zenith’s air permit renewal request stands. 

Erin Saylor, Staff Attorney at Columbia Riverkeeper said:

“This decision sends a clear message that cities and counties are not powerless in the face of expanding fossil fuel projects. We applaud the City of Portland for taking a stand against Zenith’s dangerous and dirty operation, and celebrate LUBA’s affirmation of the City’s legal right to take that stand.” 

Oregon State Representative Khanh Pham (HD 46) said:

“The City of Portland did the right thing when it denied Zenith Energy’s application to continue bringing dangerous fossil fuels through our neighborhoods. The City should continue to uphold its commitments to climate justice and continue the fight until dangerous fossil fuels are no longer being transported through our community. I will continue to lend support to the hard work of advocates and community members who will not give up on Portland’s commitment to climate justice.”

With this decision, LUBA concluded that the City of Portland correctly exercised its authority in denying Zenith’s LUCS, but must make additional findings to support its conclusion.

Nick Caleb, Climate and Energy Attorney with Breach Collective said: 

“This decision is a significant victory for Portlanders and makes it clear that large fossil fuel corporations cannot expose Portland’s residents and environment to unreasonable risks and expect their projects to be rubber stamped by local governments.  Zenith’s operations are clearly incompatible with Portland’s comprehensive plan and land use laws.” 

Travis Williams, Executive Director and Riverkeeper at Willamette Riverkeeper, said:

“The City’s denial of the LUCS and reliance on its Comprehensive Plan was a clear rejection of the path the fossil fuel industry keeps pushing for. We are pleased that LUBA recognized the City’s obligations to follow the Comprehensive Plan, which includes protections against climate change. We look forward to the City’s additional findings, which we believe can only further support the health and welfare of the Willamette River.”

Samantha Hernandez, Climate Justice Organizer, Oregon Physicians for Social Responsibility (OPSR)

“Zenith Energy’s operations are simply not consistent with land use laws. Zenith Energy is a huge emitter of fossil fuel emissions, especially in recent years. The oil by rail facility has increased their throughput by nearly 17 fold, in turn increasing emissions coming from the Zenith facility. The city needs to prioritize the health and safety of frontline communities who are most vulnerable to the health impacts of traffic-related air pollution, noise pollution, and potential explosive train derailments.”

Dineen O’Rourke, Campaign Manager, 350PDX

“Zenith Energy’s crude oil facility in NW Portland continues to put communities, our river, and our climate at risk. We applaud the Oregon Land Use Board of Appeals for upholding the City of Portland’s decision, but we continue to push for more. The reasons why Zenith’s operations are incompatible with our City’s land use laws are clear. Waiting for more studies just delays action. We won’t give up until Zenith Energy no longer operates in our community.”

Columbia Riverkeeper and Willamette Riverkeeper intervened in the LUBA case, represented by Crag Law Center. 

Link to the decision here


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BREAKING: Legal Update on Zenith’s Oil-by-Rail Terminal

Today, Oregon’s Land Use Board of Appeals (LUBA) affirmed the City of Portland’s right to deny Zenith's Land Use Compatibility Statement (LUCS) but is requiring the City to provide more support for its decision. This is a huge win that sends a clear message to fossil fuel companies that an industrial zone address does not give them a free pass to expand.

What happened?

To operate its existing crude oil-by-rail terminal, Zenith, located in NW Portland, needed to provide DEQ with a LUCS from the City of Portland. Without a LUCS, Oregon’s Department of Environmental Quality (DEQ) cannot issue Zenith a renewal air permit. Without an air permit, Zenith cannot continue to operate its dirty, dangerous oil-by-rail operations. 

In August, the City denied Zenith’s application for a LUCS on the grounds that Zenith’s oil-by-rail facility runs afoul of numerous goals and policies in the City’s 2035 Comprehensive Plan. Zenith immediately appealed the City’s decision to LUBA, arguing that the City does not have the authority to apply the goals and policies of its Comprehensive Plan directly to the facility. Instead, Zenith argued that its facility is in compliance with the zoning code and that is all that the City can consider. 

With legal representation by Crag Law Center, Columbia Riverkeeper teamed up with Willamette Riverkeeper to intervene in the LUBA proceeding to support the City’s defense of its decision

Why is this a big deal?

In recent years, Zenith engaged in a significant intensification of its existing terminal operations, including the storage and transfer of crude oil—even though the company assured regulators that wasn’t the plan. By denying the LUCS, the City exercised its authority over Zenith to protect residents and the climate. 

What happens next?

The City will have to get to work providing the support for its decision. Zenith will also likely appeal LUBA’s decision. And we will continue to work hard to ensure the City’s decision stands and is well supported. 

We want 2022 to be the year Zenith’s operations are shut down once and for all!