The fate of the 2021-2022 high school policy debate resolution likely hinges on the definition of the word “protection.” If it is defined narrowly, the topic has the potential to be much better than skeptics (and fans of the runner-up Russia topic) had initially assumed. If it is defined broadly, this season will be a frustrating slog. Unless “protection” establishes a meaningful limit on topical plan mechanisms, students will struggle to research and prepare for all of the many, disparate policy proposals that could, by effect, “protect” water resources.
One of the most promising topicality interpretations of “protection” is based on a protracted legal battle in Oregon over the construction of an LNG terminal. It defines “protection” of water resources as policies that “save or shield [them] from loss, destruction, or injury or for future intended use.” There’s a lot more to it, but this is a limiting interpretation that could, if it prevails, keep the water resources topic relatively manageable.
To understand this evidence, it is important to understand the context of the legal fight over the Bradwood terminal. This requires more background information than one might initially realize. In this article, I will share what I have learned about the Bradwood terminal, the Oregon Statewide Planning Goals, and the decisions of Oregon’s Land Use Board of Appeals and Court of Appeals. This is wonky stuff, but I think it is important for students to understand it. And at the end, I’ll share some A+ topicality cards.
The first thing that students need to understand is that Oregon has a relatively novel land use bureaucracy. The Oregon Historical Society’s Oregon Encyclopedia provides a basic summary:
In 1973, Oregon took a pioneering step in land use planning. Signed into law on May 29, 1973, Oregon Senate Bill 100 created an institutional structure for statewide planning. It required that every Oregon city and county prepare a comprehensive plan in accordance with a set of general state goals. While preserving the principle of local responsibility for land use decisions, it simultaneously established and defined a broader public interest at the state level. Supervised by a Land Conservation and Development Commission, the Oregon system has been an effort to combine the best of these two approaches to land use planning. The very existence of Oregon’s planning system has helped to inspire and justify similar programs elsewhere. Its details have been studied, copied, modified, and sometimes rejected as Florida, New Jersey, Georgia, Washington, Maryland, and other states have considered “second generation” systems of state planning.
Oregon’s program includes 19 “Statewide Land Use Planning Goals.” The Oregon Department of Land Conservation and Development describes them as follows:
The foundation of statewide program for land use planning in Oregon is a set of 19 Statewide Land Use Planning Goals. The goals express the state’s policies on land use and related topics, like citizen involvement, housing, and natural resources.
Most goals are accompanied by guidelines, which are suggestions about how a goal may be applied. As noted in Goal 2, guidelines are not mandatory.
Oregon’s statewide goals are achieved through local comprehensive planning. State law requires each city and county to adopt a comprehensive plan and the zoning and land-division ordinances needed to put the plan into effect.
Local comprehensive plans must be consistent with the Statewide Planning Goals. Plans are reviewed for such consistency by the state’s Land Conservation and Development Commission (LCDC). When LCDC officially approves a local government’s plan, the plan is said to be acknowledged. It then becomes the controlling document for land use in the area covered by that plan.
Oregon’s planning laws apply not only to local governments but also to special districts and state agencies. The laws strongly emphasize coordination — keeping plans and programs consistent with each other, with the goals, as statutes are updated, and with acknowledged local plans.
This is the full list of all 19 goals:
Goal 1 Citizen Involvement
Goal 2 Land Use Planning
Goal 3 Agricultural Lands
Goal 4 Forest Lands
Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces
Goal 6 Air, Water and Land Resources Quality
Goal 7 Areas Subject to Natural Hazards
Goal 8 Recreational Needs
Goal 9 Economic Development
Goal 10 Housing
Goal 11 Public Facilities and Services
Goal 12 Transportation
Goal 13 Energy Conservation
Goal 14 Urbanization
Goal 15 Willamette River Greenway
Goal 16 Estuarine Resources
Goal 17 Coastal Shorelands
Goal 18 Beaches and Dunes
Goal 19 Ocean Resources
Several of these goals are directly or indirectly related to water resources (and other environmental resources) protection, including — in particular — the following:
- Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces — “Goal 5 covers more thana dozen natural and cultural resources such as wildlife habitats and wetlands. It establishes a process for each resource to be inventoried and evaluated. If a resource or site is found to be significant, a local government has three policy choices: preserve the resource, allow proposed uses that conflict with it, or strike some sort of a balance between the resource and the uses that would conflict with it.”
- Goal 6: Air, Water and Land Resources Quality — “This goal requires local comprehensive plans and implementing measures to be consistent with state and federal regulations on matters such as groundwater pollution.”
- Goal 15: Willamette River Greenway — “Goal 15 sets forth procedures for administering the 300 miles of greenway that protects the Willamette River.”
- Goal 16: Estuarine Resources — “This goal requires local governments to classify Oregon’s 22 major estuaries in four categories: natural, conservation, shallow-draft development, and deep-draft development. It then describes types of land uses and activities that are permissible in those “management units.”
- Goal 17: Coastal Shorelands — “ The goal defines a planning area bounded by the ocean beaches on the west and the coast highway (State Route 101 ) on the east. It specifies how certain types of land and resources there are to be managed: major marshes, for example, are to be protected. Sites best suited for unique coastal land uses (port facilities, for example) are reserved for “water-dependent” or “water related” uses.
- Goal 18: Beaches and Dunes — “Goal 18 sets planning standards for development on various types of dunes. It prohibits residential development on beaches and active foredunes, but allows some other types of development if they meet key criteria. The goal also deals with dune grading, groundwater drawdown in dunal aquifers, and the breaching of foredunes.”
- Goal 19: Ocean Resources — “Goal 19 aims ‘to conserve the long-term values, benefits, and natural resources of the nearshore ocean and the continental shelf.’ It deals with matters such as dumping of dredge spoils and discharging of waste products into the open sea. Goal 19’s main requirements are for state agencies rather than cities and counties.”
Because cities and counties are responsible for implementing programs that comply with these Statewide Planning Goals, Oregon’s system is relatively complicated. As defined by the Statewide Planning law itself, three agencies play an important role.
First, the Land Conservation and Development Commission (or LCDC):
LCDC establishes the goals and policies for Oregon’s statewide planning program. The commission’s seven members are unsalaried volunteers, appointed by the governor and confirmed by the state senate. The term of appointment is four years. The commission must have members from various geographic regions around the state, and it must include a sitting elected county official and a current or former elected city official.
The commission sets land use policy for the state through adoption and amendment of the statewide planning goals and administrative rules to implement the goals. LCDC decides whether a local government’s comprehensive plan complies with the statewide planning goals through “acknowledgment” of the plan. The commission does not generally review subsequent plan amendments, but certain local land use decisions are review by LCDC to determine whether they comply with the goals.
Second, the Department of Land Conservation and Development (or DLCD):
DLCD serves as LCDC’s administrative arm. DLCD is a small state agency with its main office in Salem. The department has regional offices in Portland, Eugene, Newport, Tillamook, Medford, Bend, and La Grande. DLCD provides technical assistance on planning matters to local governments, other state agencies, special districts, and the public. The director of DLCD is empowered to decide whether certain local government plan amendments comply with the goals. The department administers grant programs to assist in maintenance of plans and ordinances.
Third and finally — and most importantly for our purposes — the Land Use Board of Appeals (or LUBA):
The Land Use Board of Appeals (LUBA), created by the legislature in 1979, is an independent special “court” that rules on matters involving land use and planning. It rules on appeals of land use decisions made by local governments, including most comprehensive plan amendments. Appeals of LUBA decisions go to the Court of Appeals. LUBA consists of three members appointed by the Governor and confirmed by the Senate; members serve four-year terms and are eligible for reappointment.
For debate purposes, the LUBA process is very important to understand. If there is a land use-related dispute between a local government and the state of Oregon (or, importantly, its citizens), LUBA hears the case and issues a judgment. This is an unusual system. As the LUBA website notes, “[p]rior to LUBA’s creation, land use appeals were heard by the Land Conservation and Development Commission (LCDC) and the circuit courts. LUBA was created to simplify the appeal process, speed resolution of land use disputes, and provide consistent interpretation of state and local land use laws. The tribunal is the first of its kind in the United States.” Now, only LUBA hears land use cases in Oregon.
LUBA’s frequently asked questions page provides more details about how exactly the process works. Like a regular county circuit court, LUBA’s decisions can be appealed to the Oregon Court of Appeals and (in turn) the Oregon Supreme Court.
LUBA hears a lot of cases. In 2020, for example, they issued (by my count) 109 decisions. Many of LUBA’s cases involve disputes over the meaning of particular Statewide Planning Goals, and a few have been directly related to the planning goals that require protection of water resources. These LUBA decisions — and the legal filings made in these cases, some of which have been successfully appealed to the Oregon Court of Appeals — are excellent sources of topicality evidence.
Before exploring one such specific case, it is important to note that the Statewide Planning Goals include a (lengthy) list of definitions related to the goals. These are the most important definitions for our purposes:
Develop — To bring about growth or availability; to construct or alter a structure, to conduct a mining operation, to make a physical change in the use or appearance of land, to divide land into parcels, or to create or terminate rights to access.
Development — The act, process or result of developing.
Maintain — Support, keep, and continue in an existing state or condition without decline.
Management Unit — A discrete geographic area, defined by biophysical characteristics and features, within which particular uses and activities are promoted, encouraged, protected, or enhanced, and others are discouraged, restricted, or prohibited.
Mitigation — The creation, restoration, or enhancement of an estuarine area to maintain the functional characteristics and processes of the estuary, such as its natural biological productivity, habitats, and species diversity, unique features and water quality (ORS 541.626).
Preserve — To save from change or loss and reserve for a special purpose.
Protect — Save or shield from loss, destruction, or injury or for future intended use.
Restore — Revitalizing, returning, or replacing original attributes and amenities, such as natural biological productivity, aesthetic and cultural resources, which have been diminished or lost by past alterations, activities, or catastrophic events. For the purposes of Goal 16 estuarine restoration means to revitalize or reestablish functional characteristics and processes of the estuary diminished or lost by past alterations, activities, or catastrophic events. A restored area must be a shallow subtidal or an intertidal or tidal marsh area after alteration work is performed, and may not have been a functioning part of the estuarine system when alteration work began. (1) Active Restoration involves the use of specific positive remedial actions, such as removing fills, installing water treatment facilities, or rebuilding deteriorated urban waterfront areas. (2) Passive Restoration is the use of natural processes, sequences, and timing which occurs after the removal or reduction of adverse stresses without other specific positive remedial action.
These definitions distinguish between different land use policies: policies to “protect” are distinct from policies to “develop,” “maintain,” “preserve,” and “restore.” They are also distinct from “mitigation” policies. Because the differences between these terms can determine whether particular city and county land use policies are consistent with the Statewide Planning Goals, their meaning is often litigated in LUBA cases.
The LUBA case with the closest connection to the water resources topic is Columbia Riverkeeper v. Clatsop County (this is really two cases, but I’ll explain that below). It is somewhat complicated to understand, but the context of the case is important for understanding the topicality evidence derived from it.
In 2005, Bradwood Landing LLC and NorthernStar Energy LLC began the process of attempting to construct a liquefied natural gas (LNG) terminal on the Columbia River just east of Astoria in Clatsop County, Oregon. The proposed terminal was referred to as the Bradwood Landing.
By 2008, Bradwood and NorthernStar had received approval from the Federal Energy Regulatory Commission and the Clatsop County Board of Commissioners, and it seemed like construction of the terminal was imminent.
However, a coalition of organizations led by Columbia Riverkeeper (it also included the Columbia River Business Alliance, the Oregon Chapter of the Sierra Club, and the Columbia River Clean Energy Coalition) filed 21 legal challenges with the Land Use Board of Appeals objecting to the county’s decision to authorize construction. They also “began collecting signatures to force a public vote on the matter. In the resulting referendum, 67% voted to overturn the decision and deny NorthernStar approval for the pipeline route.” But this was later.
In the first LUBA case — number 2008-052; later referred to as Bradwood 1 — the Columbia Riverkeepers coalition filed a joint challenge with the Columbia River Inter-Tribal Fish Commission (CRITFC) against Clatsop County, Northstar Energy LLC, and Bradwood Landing LLC. CRITFC alleged eight “assignments of error,” the Columbia Riverkeeper-led petitioners alleged eight more, and a final error was alleged by another petitioner.
Many of these alleged errors were procedural and unrelated to the word “protect,” but the first alleged error by the petitioners challenged how Clatsop County had interpreted the word “protect” as used in Statewide Planning Goals 16 (Estuarine Resources) and 17 (Coastal Shorelands). On this issue (and several others), LUBA (in a January 2009 decision) sided with the petitioners and sent Northstar and Bradwood back to the county to try again.
The part of LUBA’s decision that defines “protect” concludes that the definition in the Statewide Planning Goals — “to save or shield from loss, destruction, or injury or to save for future intended use” — should be understood to imply a legal mandate, not simply an intention. They disagreed with Clatsop County’s argument that “protect” should be defined (based on a legal dictionary) as “any measure which attempts to preserve that which already exists.” They explained:
Under the county’s interpretation, as long as intervenors “attempt” to preserve a resource it has “protected” that resource. It is not entirely clear what the county means by “attempt,” but the county apparently understands it to mean using measures that are intended to “minimize” impacts, even if those measures fail to shield the resource from loss and [end page 33] significant adverse impacts on the resource still occur. That view may be consistent with the law dictionary definition the county relies upon, but it is not at all clear to us that it is consistent with the statewide planning goal definition.
After losing the case in front of LUBA, Northstar and Bradwood tried again. They made adjustments to their construction plan, went back to the Clatsop County Board of Commissioners, and won approval for a second time.
Again, the Columbia Riverkeepers challenged Clatsop County’s decision.
And again, LUBA ruled in favor of the petitioners. This time, they were even more thorough when explaining that the county had misinterpreted the word “protect.” In their second decision (issued in April 2010), LUBA made several additional arguments:
- They clarified that “the definition of ‘protect’ contains stringent language” and that “the definition is not equivocal in requiring that identified resources are ‘saved’ or ‘shielded’ from more than de minimis damaging impacts.”
- While they agreed that the “definition of ‘protect’ does not require that estuarine resources identified for protection be completely or absolutely protected from any ‘loss, destruction, or injury’ whatsoever, the county has made a planning decision…to ‘protect’ as opposed to a decision to ‘maintain,’ ‘develop,’ or ‘restore’ traditional fishing areas and endangered or threatened species habitat. Having made that ‘protect’ planning decision, the local program to protect those estuarine resources must not allow ‘loss, destruction, or injury’ beyond a de minimis level.”
- They disagreed with the county’s attempt to distinguish “save” and “shield,” noting that “the definition of ‘shield’ is synonymous with ‘protect’ and therefore does not support the county in reading the word ‘shield’ to allow measures that do less than protect the resource.”
- They distinguished regulations that “protect” from regulations that “allow attempts to protect, an intent to protect, mitigation of harm, or other measures that merely reduce harm to the resource,” concluding that “those [latter] measures do not ‘protect’ the resources.”
- They concluded that “compliance with policies that require minimization of harm to the resource does not necessarily demonstrate that the proposal ‘protects’ … unless those policies require that harm is minimized to a level where no more than de minimis harm can be expected occur.” In other words, “attempts to protect the resource are not sufficient to ‘protect’ the resource.”
In a separate concurrence, another member of LUBA went even further:
The county’s decision spends a good bit of time trying to reformulate its legal obligation under CCCP Policies 20.2(1) and 20.8 to “protect” those resources as necessarily being satisfied by (1) simply applying existing acknowledged regulations that the county has adopted to protect estuarine resources, (2) showing that the estuary will be protected if the estuary is viewed as a whole, (3) mitigating any damage to those protected resources, (4) attempting to avoid damage to those protected resources, or (5) intending to avoid damage to those protected resources. I agree with the majority that those reformulations represent a misunderstanding of the county’s legal obligation to protect the identified resources under Policies 20.2(1) and 20.8. … I agree with the majority that as defined by the Statewide Planning Goals the rezoning need not include protection that will perfectly or absolutely shield those estuarine resources from any damage whatsoever. However, while the duty to protect does not demand perfection neither can it be diluted into a mere obligation to avoid significant injury. That is what the county attempts to do in this case. I agree with the majority that the county must ensure that any damage to those resources will be no more than de minimis.11 In other words, any such damage must be “trivial.”12 As defined by the Statewide Planning Goals, the legal obligation to “protect” an estuarine resource that the county has determined must be protected is not satisfied by merely taking steps to avoid significant damage.
Despite the setback, Northstar and Bradwood didn’t give up. As authorized by the Statewide Planning Goals statute, they appealed LUBA’s final decision to the Oregon Court of Appeals. In June 2010, they argued their case. In November 2010, the Appeals Court reaffirmed LUBA’s decision, holding that “‘protect,’ in this context, means more than minimizing the adverse impacts of conflicting development through mitigation. It means inhibiting development that causes significant adverse impacts on the protected resource.”
This was the final nail in the coffin for the proposed Bradwood terminal, but the Columbia Riverkeeper campaign had already mostly killed the project by the time the Appeals Court issued its decision. As reported in the The Oregonian, Northstar had already decided to give up:
Ending a six-year effort that consumed as much as $100 million, countless hours of regulatory work, and engendered a firestorm of public opposition, NorthernStar Natural Gas said this afternoon that it was suspending efforts to develop a liquefied natural gas import terminal at Bradwood Landing on the Columbia River, 25 miles east of Astoria.
The Houston based energy development company sent out a one-page news release this afternoon quoting NorthernStar president Paul Soanes saying “the extended delays in the processing of state and federal permits for Bradwood Landing and the difficult investment environment have forced us to suspend development.”
The company characterized its move as a “suspension” of the project, not a termination.
Mike Carrier, Gov. Ted Kulongoski’s natural resources policy director, said the company told him today that another developer could conceivably resurrect the effort. But Carrier said that NorthernStar told him that its investment backer, a private equity fund that has put $100 million into the company’s LNG development efforts in Oregon and California, is pulling the plug.
Project opponents celebrated Bradwood’s announcement.
This was a major defeat for the U.S. LNG industry; Columbia Riverkeeper celebrated it as a “victory [that] reverberated across our nation.”
So what does this mean for topicality and the word “protection?” In a series of decisions, Oregon’s Land Use Board of Appeals and Court of Appeals evaluated a very thorough and complicated set of arguments about the meaning of the word “protect” as it is used in the context of water resources protection policy. They repeatedly concluded that “protection” has a specific, stringent definition; it requires a mandate that saves or shields water resources from harm, not just the intent to protect.
To use the popular debate jargon, this definition is “legally precise.” It is based on Oregon’s “national model” land use policy, it has the intent to define and exclude, and it answers potential affirmative counter-interpretations. While one can quibble (and many affirmatives will) about whether Oregon’s Statewide Planning Goals are a predictable way to define “the USFG’s” water resources protection, I think negative debaters have a strong debatability argument to marshal in favor of this definition.
In short, if applied to the high school debate topic, it would establish a meaningful limit on the mechanisms available to topical affirmatives. Plans that only intend to protect water resources, or which might protect water resources by effect, are excluded. In this way, otherwise-frustrating skirmishes over “effects topicality” (and an ever-expanding negative research burden) might be (mostly) avoided.
Instead, only plans that substantially increase regulations to save or shield water resources from harm are topical. Many proposals meet this interpretation, but they share a “direction” and are discussed in the same “section” of the water policy literature. While different topical plans will be able to claim unique advantages, all topical plans will link to a general set of negative arguments critical of increased regulations.
Instead of superficially debating the full range of water-related policies — infrastructure investment, development, management, conservation, maintenance, research and planning, mitigation, restoration, allocation, and on and on — the definition of “protection” from the Bradwood terminal case will allow students to focus only on water protection policies. In my experience, this will give debaters and coaches the best chance for an enjoyable, educational season. I hope this article will help achieve that result.
As promised, the attached document includes the relevant “cards” from the first LUBA decision, the second LUBA decision, and the Court of Appeals decision. I say “cards” because the evidence is not tagged, highlighted, or (especially for the second LUBA decision) broken into individual cards.
In order to use these cards in a debate, students should finish processing them and organize them into a file. I suggest breaking the decisions up into many cards. When doing that, you might need to re-underline; I tried to give you a head start.
Cards from other sources (like this CRS report) might also be helpful in supplementing the evidence from the Bradwood case, but I think negative teams could be successful only reading evidence taken from this document. While there are many (many) “affirmative” (broad) definitions of “protection,” few seem as high-quality as these Bradwood cards.
Students seeking additional topicality evidence should also consider searching for other LUBA decisions about the relevant Statewide Planning Goals. I don’t think any are as specific as the Bradwood case, but there might still be other good cards waiting to be found.