A small exchange in court in Salem on Wednesday spoke volumes about the public’s right to know how its money is spent under Oregon’s Clean Fuels Program.
Lawyers representing The Bulletin and the state of Oregon were in the courtroom of Marion County Circuit Judge Mary Mertens James to argue that records about the program should be released. Chevron and REG, an Iowa biofuels company, said no.
Chevron’s attorney took some time to belittle University of Oregon economist Bill Harbaugh. His analysis had helped the state determine the records should be released.
The attorney pointed out that Harbaugh makes a lot of public records requests. That pretty much tells you everything you need to know about Chevron: It doesn’t like it when members of the public ask a lot of questions.
The Clean Fuels Program is designed to reduce greenhouse gas emissions. It works like a fuel tax. Consumers pay extra at the pump, and that money gets routed to subsidize alternative fuels businesses.
Unfortunately, it’s much more complicated. For instance, it’s generally nice to know when you are paying a tax. But consumers don’t find out when they buy gas how much extra they are paying for the program. The per-gallon amount is calculated and is available, just not then.
What goes on behind the scenes is importers of fossil fuels — companies like Chevron — are required to gradually reduce the “carbon intensity” of their products. They end up having to buy more and more credits from businesses — such as REG — that produce and sell low-carbon fuels or from entities like public transit operations. So importers of fossil fuels charge consumers extra for their fuels to pay for those credits they must buy.
Oregon’s Department of Environmental Equality releases some information about how the program is working. However, it does not make it clear who benefits. Who buys what in what amount and what do they pay for it? Where do the millions in subsidies end up?
The Bulletin’s editorial board requested that DEQ release that information. The DEQ initially denied the request. The Bulletin appealed to the Oregon Department of Justice. It ordered the records be released. The DOJ order relied in part on a consultation with Harbaugh. His argument was “transparency should make it easier for the market participants and others to detect any collusive — and potentially illegal — market behaviors that could contribute to market inefficiency.”
Chevron and REG sued the state and Bulletin editor Erik Lukens to block the release of the records. Chevron and REG argued that the information requested is a “trade secret” and lawmakers also never intended that such information would be released.
What companies claim is sensitive information can be subject to public disclosure under Oregon’s public records law — if releasing it is in the public interest. There’s a balancing test. How does the public interest in disclosure weigh against any negative impact?
Surely, the public is entitled to know where its money goes. It should be especially true when it comes to legislative programs designed to be good for environment. Why? The state has made awful mistakes.
The state’s Business Energy Tax Credit program is a case study in how good intentions go awry. It featured sloppy oversight. Finagled rules. There was even illegal activity. Millions were wasted. Lawmakers had to shut things down to stop millions more in abuses. If that’s not a good reason to get precise information about how the Legislature’s latest green program is working, what is?
The Legislature failed when it wrote the law for the Clean Fuels Program to make it clear beyond any doubt that the public should be able to know where its money goes. Lawmakers should fix that language this legislative session.