Oregon

Constitutional Provisions

The Oregon Constitution has two provisions which, taken together, form the basis of municipal home rule. Although neither use the term “home rule” nor address the concept head on, judicial interpretation of the two provisions dictates that the constitution delegates home rule authority to cities.¹ The provisions do so by (1) giving Oregon citizens the power to decide local matters by initiative and referendum² and (2) authorizing citizens, rather than the Legislative Assembly, to enact and alter city charters. Taken together, the “two amendments granted the authority for cities to incorporate, enact and amend their charters, and pass local laws.”³

Or. Const. art. IV, § 1(5): “The initiative and referendum powers . . . are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. In a city, not more than 15 percent of the qualified voters may be required to propose legislation by the initiative, and not more than 10 percent of the qualified voters may be required to order a referendum on legislation.”

Or. Const. art. XI, § 2: “The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon . . . but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon.”

The Oregon Constitution also delegates home rule authority to counties that adopt a county charter under article VI, section 10.

Or. Const. art. VI, § 10: The Oregon Constitution authorizes home rule for counties when county voters, by election, “adopt, amend, revise or repeal a county charter. A county charter may provide for the exercise by the county of authority over matters of county concern.”

Statutory Provisions

Cities that have not adopted a charter pursuant to Oregon Constitution article XI, section 2 can still exercise home rule authority based on an independent statutory delegation of authority. Cities have home rule authority for “the government of [their] local affairs.” Courts have historically recognized municipal authority to pass ordinances related to “local affairs” pursuant to municipal police powers. See, e.g., Portland v. Yates, 199 P. 184 (Or. 1921). Today, some describe police power a subset of home rule authority.⁴

Or. Rev. Stat. § 221.410(1): “Except as limited by express provision or necessary implication of general law, a city may take all action necessary or convenient for the government of its local affairs.”

Or. Rev. Stat. § 221.210: “The city council may refer and the people may initiate municipal measures or amendments to the charter of a city . . .”

Like cities, counties that have not adopted a charter pursuant to Oregon Constitution article VI, section 10 also possess statutory-based home rule authority.

Or. Rev. Stat. § 203.035(1): “Subject to [limitations regarding ordinances that change the number or mode of selection for elective county officers], the governing body or the electors of a county may by ordinance exercise authority within the county over matters of county concern . . .”

Or. Rev. Stat. § 203.035(2): “The power granted by this section is in addition to other grants of power to counties, shall not be construed to limit or qualify any such grant and shall be liberally construed, to the end that counties have all powers over matters of county concern that it is possible for them to have under the Constitutions and laws of the United States and of this state.”

All 241 cities in Oregon have adopted charters, according to a 2024 report by the Oregon League of Cities.⁵ City charters are not explicitly referred to as “home rule charters” in the Oregon Constitution but are considered to be in the case law.⁶ In general, courts and the Attorney General tend to rely on case law from both the city and county context when deciding home rule issues, suggesting that city and county home rule is substantively the same.⁷

Additionally, nine of Oregon’s thirty-six counties have adopted home rule charters: Benton, Clatsop, Hood River, Jackson, Josephine, Lane, Multnomah, Washington, and Umatilla. Counties that are not “charter counties” are considered “general law counties,” but still possess some degree of home rule authority under section 203.035(1) of the Oregon Revised Statutes to enact ordinances “over matters of county concern.” These include, for example, Linn and Polk counties.⁸

City and county charters typically claim the maximum authority for local government allowed by law. For example, the City of Eugene’s charter states: “The charter shall be liberally construed, to the end that the city have all powers necessary or convenient for the conduct of its affairs, including all powers that cities may assume under state laws or the provisions of the state constitution regarding municipal home rule.” The Clatsop County charter provides another example, with an almost identical provision.

The foundation of state preemption is the principle that local law is subordinate to state law: the power to exercise home rule authority “is derived from the people of the state, and is necessarily limited to the exercise of such powers, rights, and privileges as may not be inconsistent with the maintenance and perpetuity of the state.” Straw v. Harris, 54 Or. 424, 435 (Or. 1909). However, Oregon’s constitution and statutes reserve for local governments the power to legislate on “matters of [local] concern,” which includes topics that fall within the scope of municipal police powers. See, e.g., Or. Const. art. VI, § 10; Or. Rev. Stat. § 221.410(1).

The Oregon Constitution prevents the Legislative Assembly from preempting local civil law with “special laws” that apply only to certain municipalities. Or. Const. art. XI, § 2. Therefore, state preemption questions revolve around the state’s authority to preempt local law with “general laws”—that is, laws that express a statewide policy. See La Grande v. Pub. Emps. Retirement Bd., 281 Or. 137, 145 (Or. 1978).

Express Preemption

Express preemption occurs when the Legislative Assembly includes explicit preemptive language in state statutes. A law can, but need not, use the word “preempt” to be deemed expressly preemptive. Thunderbird Mobile Club, LLC v. City of Wilsonville, 234 Or. App. 457, 472 (2010). A state law can also expressly preempt with “a clearly manifested intention that the operation of state law be exclusive.” Id. at 473.

E.g., Or. Rev. Stat. § 634.057: “No city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding pesticide sale or use.”

Field Preemption

Oregon case law does not recognize implied field preemption. Thunderbird Mobile Club, 234 Or. App. at 474 (“[T]he occupation of a field of regulation by the state has no necessary preemptive effect on the civil or administrative laws of a chartered city.”).

Conflict Preemption

Conflict preemption occurs when a state and local law “cannot operate concurrently.” La Grande, 281 Ore. at 148. A court may find that an ordinance is preempted despite a locality’s home rule authority when “the operation of the local law makes it impossible to comply with a state statute.” Thunderbird Mobile Club, 234 Or. App. at 474.

For example, in Springfield Util. Bd. v. Emerald People’s Util. Dist., 339 Or. 631, 648 (Or. 2005), the court held that a city ordinance excluding a public utility from the city’s territory was preempted by a state statute that allocated exclusive service of that territory to the utility because the two were in direct conflict.

To balance the tension between matters of local and statewide concern, Oregon courts follow the standard in La Grande v. Public Employees Retirement Board, which applies to cases where state and local governments are pursuing conflicting substantive objectives. The court will first decipher whether “the local rule in truth is incompatible with the [state] legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.” La Grande, 281 Or. at 148. If it is, the local rule will be preempted by the state law.

Building Codes. Or. Rev. Stat. § 455.040: Imposes a statewide building code that preempts municipal ordinances that would alter the building requirements in the state code.

Building Codes. Or. Rev. Stat. § 469.277(5): Allowing local governments to adopt building energy performance standards and greenhouse gas emission reductions standards that are more stringent or broader than the state’s but with some limitations. For example, the municipal standards cannot “exceed the energy efficiency requirements of the state building code for new buildings, except where permitted under ORS 455.040.”

Taxes. Or. Rev. Stat. § 317A.158(1): Preempts local governments from adopting “a tax upon commercial activity or upon receipts from grocery sales.” This includes initiatives similar to Portland’s Clean Energy Fund, which was grandfathered in under this law.⁹

Vehicles. Or. Rev. Stat. § 319.950: Prohibits localities from enacting or amending a tax on fuel for motor vehicles unless they hold an election and receive approval by the electors of that local government.

Plastic Pollution. Or. Rev. Stat. § 459A.759: Prohibits localities from passing bag bans (e.g., on reusable plastic bags, single-use checkout bags) that are not identical to the statewide bag ban (§§ 459A.755 and 459A.757). However, localities may enact penalties for violations of the bans that differ from the state laws.

Plastic Pollution. Or. Rev. Stat. § 616.894: Prohibits localities from passing laws related to plastic straws that are not identical to the statewide single-use plastic straw law (§ 616.892).

The primary framework for preemption law in Oregon is described in La Grande v. Public Employees Retirement Board. As a general principle, courts “presume[] that the legislature did not mean to impliedly repeal the provisions of a city’s civil or administrative law, and courts should seek to reconcile the operation of both state and local laws if possible.” Thunderbird Mobile Club, 234 Or. App. at 471.

Based on the structure of Oregon’s home rule authority and the La Grande framework, preemption law can be broadly categorized into three areas: (1) civil law regarding the mode of local government; (2) civil law regarding substantive policy objectives; and (3) criminal law. The discussion here focuses on the second category, as those laws are most relevant in the context of cities’ climate policy. 

The cases below describe how Oregon courts balance local control over matters of local concern, authorized by the state constitution and statutes, with the state’s power to supersede local legislation.

• La Grande v. Pub. Emps. Retirement Bd., 281 Or. 137 (Or. 1978): La Grande provides the general framework for preemption analysis in Oregon. The case was brought by two cities challenging a state law that required police and firefighters employed by a city to be brought within the state’s retirement system by a certain date. The cities argued that the state law infringed upon their local authority. In evaluating these claims, the opinion offers separate preemption standards for two categories of laws based on their content: (1) for laws that bear on the structure and procedures of local government;¹⁰ and (2) for laws with substantive policy objectives. The second standard is most relevant to the climate context. If a state passes “a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state,” that law “prevails over contrary policies preferred by some local governments if it is clearly intended to do so.” Id. at 156. To carry out the analysis, a court must first decipher whether the local rule “is incompatible with the [state] legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.” Id. at 148. If it is, the local rule will be preempted by the state law. However, the La Grande court suggests that there is a presumption that local and state laws do not conflict: “It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent.” Id. at 148–49. This language provides some additional protection to local measures. Still, this case is understood to have narrowed past interpretations of home rule authority, such as the more expansive view adopted in Heinig v. City of Milwaukie.¹¹

• Thunderbird Mobile Club v. City of Wilsonville, 234 Or. App. 457 (2010): This case contains helpful clarifications about the standard for finding implied preemption, illustrating that findings of implied field preemption are especially unlikely in Oregon courts. The issue in the case was whether a city ordinance regulating the conversion of use of mobile home parks was preempted by state law because the ordinance contained additional requirements that the relevant state law did not, effectively prohibiting a conversion that would have been permitted under state law. The court held that, in the absence of the state’s express intent to preempt, the ordinance was not preempted. Id. at 474. “Under [La Grande] the occupation of a field of regulation by the state has no necessary preemptive effect on the civil or administrative laws of a chartered city. Instead, a local law is preempted only to the extent that it ‘cannot operate concurrently’ with state law, i.e., the operation of local law makes it impossible to comply with a state statute.” Id. at 474. In other words, absent any express language in state law, a preemption analysis will look only for conflict preemption, not field preemption.

• Owen v. City of Portland, 305 Or. App. 267 (2020): This case sheds additional light on courts’ interpretation of the La Grande intent requirement. The issue in the case was whether a Portland ordinance requiring landlords to pay tenants reallocation assistance in certain circumstances was preempted by a state law on rent control. The state law had a specific preemption clause, which stated: “a city or county shall not enact any ordinance or resolution which controls the rent that may be charged for the rental of any dwelling unit.” Id. at 274. The court held that the state legislature expressed clear intent to preempt local “rent control” ordinances but that it did not “unambiguously intend to preempt other types of restrictions.” Id. at 277. Because the ordinance did not regulate “rent control,” it was not preempted by the state law. Id. at 269.

Recent and Ongoing Litigation

Several cases on home rule and state preemption were decided in 2024, including:

Thorin Props. Ltd. v. City of Eugene, 334 Or. App. 570 (Or. Ct. App. 2024): The Oregon Court of Appeals considered whether an ordinance, which set a cap on what landlords can charge as an applicant screening fee, is preempted by the Oregon Residential Landlord and Tenant Act, which permits landlords to charge applicant screening fees. It held that the local law is not preempted because compliance with both city and state law was not impossible. Thorin Props., 334 Or. App. at 575.

Shevtsov v. Dep’t of Revenue, 2024 Or. Tax LEXIS 8 (2024): The Oregon Tax Court considered whether a local rule that the Board of Property Tax Appeals will charge a $30 fee to file a petition is preempted by state property tax laws. It held that the local charge is not preempted because the relevant state law “stops far short of ‘unambiguously express[ing] an intention to preclude local governments from regulating in the same area as that governed by the statute.’” Shevtsov, 2024 Or. Tax LEXIS at *14.

Schwartz v. Washington County, 332 Or. App. 342 (Or. Ct. App. 2024): The Oregon Court of Appeals considered whether an ordinance banning the sale of flavored tobacco and flavored synthetic nicotine is preempted by the state tobacco retail licensure scheme, which allows the sale of those products in certain circumstances. It held that the local law is not preempted because it is not impossible to comply with both laws and the two could operate concurrently. Schwartz, 332 Or. App. at 359–60.

Oregon has statewide building codes at sections 455.010–455.990 of the Oregon Revised Statutes, which includes a specific preemption clause, as discussed in greater detail below. The code is administered by the state Department of Consumer and Business Services, Building Codes Division. The building codes are comprised of a number of “specialty codes” which cover specific code programs, such as commercial structures, residential structures, plumbing, elevators, manufactured dwelling parks, and more. Oregon has adopted the 2021 edition of the model International Code Council building codes across multiple specialty codes.¹²

Sections 455.148–455.180 are dedicated to the role of municipal regulation in the legislative scheme. For example, municipalities may assume the administration and enforcement of building inspection programs. Or. Rev. Stat. § 455.148. The state law also has a preemption clause. It states, “[t]he state building code shall be applicable and uniform throughout this state and in all municipalities, and no municipality shall enact or enforce any ordinance, rule or regulation relating to the same matters encompassed by the state building code but which provides different requirements.” Or. Rev. Stat. § 455.040(1).

Prior to 1978, local government authority to regulate building standards was more permissive than it is today. The case State ex rel. Haley v. City of Troutdale interpreted a previous version of the preemption clause to leave room for cities to regulate building standards so long as they did not prevent compliance with state standards. 28 Or. Ct. App. 93 (1977). Under that clause, the Haley court upheld a city building standard which was more stringent than the state standards because it was possible to comply with both by complying with the stricter city standard. However, the clause was subsequently reworded and renumbered, and now prohibits all city ordinances “relating to the same matters” as the state building code. As such, Haley is no longer good law.

Litigation over section 455.040 has been rare but a pair of recent cases concern a Portland ordinance requiring automatic sprinkler systems in nightclubs. See Ragaway v. City of Portland, 315 Or. App. 647, 650–51 (Or. Ct. App. 2021); City of Portland v. Bldg. Codes Div., 313 Or. App. 93, 94 (Or. Ct. App. 2021). The issue in the cases was whether a Portland ordinance was preempted by the state building code because it included different requirements with respect to fire safety. The state Building Codes Division determined that Portland’s ordinance was preempted by section 455.040 because the state building code covers fire protection systems. Portland argued that the ordinance was not preempted because it was passed as part of the city’s fire code rather than its building code. Ragaway, 315 Or. App. at 650. The Oregon Court of Appeals did not rule on the preemption issue and instead resolved both cases on other issues. But the two cases indicate that the questions about the “different requirement” preemption clause are alive and ripe for judicial interpretation.

The preemption clause does authorize the director of the Department of Consumer and Business Services to grant exceptions¹³ to section 455.040 preemption to “encourage experimentation, innovation and cost effectiveness by municipalities in the adoption of ordinances, rules or regulations which conflict with the state building code.” Or. Rev. Stat. § 455.040(1).

The Oregon Court of Appeals has held that the state building code laws do not give the Building Codes Division unlimited power to penalize or compel the repeal of the city’s ordinances. Rather, the Building Codes Division’s power to investigate cities is limited to an alleged “violation or omission by a municipality related to enforcement of codes or administrative rules, certification of inspectors or financial transactions dealing with permit fees and surcharges.” City of Portland, 313 Or. App. at 94. 

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Oregon Public Utility Commission has “jurisdiction to supervise and regulate every public utility and telecommunications utility in this state, and to do all things necessary and convenient in the exercise of such power and jurisdiction.” Or. Rev. Stat. § 756.040(2).

What authority, if any, do municipalities have over utilities? Cities are authorized to pass ordinances that, among other things, (a) set the terms and conditions of public utilities’ use of city property; (b) require public utilities to make modifications to its equipment, facilities, or service within a city if it is reasonable or necessary in the public interest; and (c) set rates and charges to be paid to public utilities within the city if a proposed ordinance is filed with the Oregon Public Utility Commission and the agency concludes it is in the public interest. Or. Rev. Stat. § 221.420. Pursuant to Or. Rev. Stat. § 221.415, “[e]xcept where preempted or limited by federal or state law, cities have the authority to regulate their own right-of-way and require business and investor-owned utilities to obtain permission to locate in the city’s right-of-way.”¹⁴

Oregon has three investor-owned electric utilities, three investor-owned gas utilities, and thirty-eight consumer-owned electric utilities—the latter of which includes, for example, cooperatives, People’s Utility Districts, and several municipally-owned utilities. Generally, cities are authorized to “build, own, operate and maintain . . . electric light and power plants.” Or. Rev. Stat. § 225.020. The state Public Utility Commission regulates these utilities only with respect to safety.¹⁵

There have been a handful of cases involving home rule and preemption issues with respect to public utilities. Two cases related to energy generation are described below:

• Springfield Util. Bd. v. Emerald People’s Util. Dist., 339 Or. 631 (Or. 2005): This case arose when a new area of land was annexed to the city of Springfield. The Oregon Public Utility Commission had previously granted Emerald People’s Utility District the exclusive right to serve the area, but the city sought to exclude Emerald’s services so that it could be the sole provider of electricity in the city. The city argued this was within its home rule authority and its authority under § 221.420. The Oregon Supreme Court held that the city’s exclusion was preempted by state law under La Grande: “the territorial allocation statutes limit a city’s authority to exclude a utility provider from an allocated exclusive service territory to the extent that ORS 221.420(2)(a) authorizes such an exclusion.” Springfield, 339 Or. at 648.

• Nw. Nat. Gas Co. v. City of Gresham, 374 P.3d 829 (Or. 2016): This case arose when utilities challenged a City of Gresham law that increased the licensing fee for each utility from 5% of the utility’s gross revenues earned in the city to 7%, arguing that the law was preempted by section 221.450 of the Oregon Revised Statute. Section 221.450 authorizes cities to levy a “privilege tax” from utilities without a franchise but caps the tax at 5% of gross revenues earned within the city. The Oregon Supreme Court held that, with respect to two of the investor-owned utilities, the City’s fee is not preempted by section 221.450 because “the legislature did not unambiguously express an intent to preempt cities from enacting license fees for the use of rights-of-way—even license fees that fall within the definition of ‘privilege tax.’” Nw. Nat. Gas Co., 374 P.3d at 852. However, the fee with respect to the Rockwood People’s Utility District constituted an “intergovernmental tax” and the City, which relied on section 221.450 as authority for that tax, cannot exceed the 5% cap. Id. Essentially, if a city and utility have not had a franchise agreement for 30 days, section 221.450 allows the city to impose a privilege tax that does not exceed 5% of the gross revenues earned by the utility within city limits. Cities wishing to impose a higher privilege tax can do so under their home rule authority if they are taxing an investor-owned utility.

Can cities enter into franchise agreements with utilities? Yes, cities may enter into franchise agreements with utilities.¹⁶

How can cities intervene in Public Utility Commission proceedings? Cities can petition to intervene in the Public Utility Commission’s formal proceedings. The Commission’s website provides information on how to do so.¹⁷ Cities may also participate by submitting comments on proposed rulemakings by the Commission.¹⁸

Does the state have an obligation to serve statute? Yes, Oregon law states, “[e]very public utility is required to furnish adequate and safe service, equipment and facilities, and the charges made by any public utility for any service rendered or to be rendered in connection therewith shall be reasonable and just, and every unjust or unreasonable charge for such service is prohibited.” Or. Rev. Stat. § 757.020.

Has the state passed enabling legislation for community choice aggregation (CCA)? No, Oregon does not have legislation enabling community choice aggregation—essentially, group purchasing of electricity by multiple municipalities—but has considered such measures in the past.¹⁹

Amy Schlusser et al., Building Bridges to Oregon’s Transportation Future: A Comprehensive Guide to Raising and Spending Highway Revenues under the Oregon Constitution, Green Energy Inst. (2022),https://perma.cc/Y33V-D57M.

Cole Souder & Danny Noonan, Funding Building Decarbonization: Policy Options for Local Governments in Oregon, Green Energy Inst. & Breach Collective (2024), https://perma.cc/7G8C-JCH9.

Nick Caleb et al., Regulating Natural Gas in Oregon Buildings: A Guide for Local Governments, Green Energy Inst. & Breach Collective (2023), https://perma.cc/ESD2-FMC3.

Tollenaar and Associates, County Home Rule in Oregon (2005), https://perma.cc/CEK3-P87M (providing a comprehensive summary of county home rule, prepared for the Association of Oregon Counties).

League of Oregon Cities, Oregon Municipal Handbook, Chapter 2: Home Rule & Its Limits (2020), https://perma.cc/98PP-THRZ (offering another comprehensive summary of home rule as it pertains to cities in Oregon).

League of Oregon Cities, Legal Guide to Oregon’s Statutory Preemptions of Home Rule (2020), https://perma.cc/W3T8-XBC3 (providing an overview of Oregon state preemption of local exercises of home rule authority, including an appendix of state preemption laws).

The City of Eugene has experimented with enacting a so-called “natural gas ban,” although it has not been tested under state preemption principles. The Eugene City Council approved a ban on natural gas hook-ups in new low-rise residential buildings which would have gone into effect on June 30, 2023. The Eugene city residents would then have voted on whether to approve the ordinance in November 2023. However, the City Council repealed the measure before it could go to the voters in light of a decision from the U.S. Court of Appeals for the Ninth Circuit, which struck down a similar ordinance in Berkeley, California.²⁰ The impact of federal preemption on local laws is beyond the scope of this toolkit but something that city advocates should bear in mind when crafting climate policy.