312 November 27, 2015 No. 50

IN THE SUPREME COURT OF THE

STATE OF OREGON

Nik BLOSSER,

Petitioner,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S063528 (Control))

Paul R. ROMAIN,

Petitioner,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon,

Respondent.

(S063532)

En Banc

On petition to review ballot title first filed September 3, 

2015; considered and under advisement November 3, 2015.

Steven C. Berman, of Stoll Stoll Berne Lokting & 

Shlachter, PC, Portland, filed the petition and reply for petitioner Blosser.

Paul R. Romain, The Romain Group, LLC, Portland, filed 

the petition and reply for petitioner Romain.

Matthew J. Lysne, Assistant Attorney General, Salem, 

filed the answering memorandum for respondent. With him 

on the memorandum were Ellen F. Rosenblum, Attorney 

General, and Paul L. Smith, Deputy Solicitor General.

BALDWIN, J.

The ballot title is referred to the Attorney General for 

modification.

Case Summary: Petitioners sought review of the Attorney General’s certified 

ballot title for Initiative Petition 46 (2016), which, if enacted, would amend several 

aspects of a bill that the legislature enacted during the 2015 legislative session 
Cite as 358 Or 312 (2015) 313

relating to the authority of the Oregon Environmental Quality Commission 

to adopt standards and requirements to reduce greenhouse gas emissions. 

Petitioners argued that the caption, the “yes” and “no” result statements, and 

the summary do not substantially comply with requirements set out in ORS 

250.035(2). Held: The certified caption, “yes” result statement, and summary do 

not substantially comply with statutory requirements.

The ballot title is referred to the Attorney General for modification.
314 Blosser/Romain v. Rosenblum (IP 46)

BALDWIN, J.

In these consolidated cases, petitioners seek review 

of the Attorney General’s certified ballot title for Initiative 

Petition 46 (2016) (IP 46), contending that the caption, the 

“yes” result statement, and the summary do not comply 

with requirements set out in ORS 250.035(2). We review the 

certified ballot title to determine whether it substantially 

complies with those requirements. See ORS 250.085(5) (setting out that standard). For the reasons explained below, we 

refer the ballot title to the Attorney General for modification 

of the caption, the “yes” result statement, and the summary.

IP 46, which is appended to this opinion, is an alternative proposal to Initiative Petition 45 (2016) (IP 45). These 

same petitioners have challenged the certified ballot title 

for that initiative petition, addressed in a separate opinion 

issued this day. See Blosser/Romain v. Rosenblum (IP 45), 

358 Or 295, ___ P3d ___ (2015) (referring certified ballot 

title for IP 45 to Attorney General for modification of caption 

and “yes” result statement). Like IP 45, IP 46 is a proposed 

statute that would amend aspects of a bill that the legislature enacted during the 2015 legislative session, Senate 

Bill (SB) 324 (2015), Or Laws 2015, ch 4. In Blosser/Romain 

(IP 45), we summarized SB 324 as follows:

“SB 324 made changes to a 2009 state law that permitted 

the Oregon Environmental Quality Commission (EQC) to 

adopt standards and requirements to reduce greenhouse 

gas emissions, and to adopt low carbon fuel standards for 

gasoline, diesel, and alternative fuels, as well as a schedule 

to reduce by 2020 the average amount of greenhouse gas 

emissions by 10 percent below 2010 levels. Or Laws 2009, 

ch 754, §§ 3(2), 6(2)(a), 6(2)(b). SB 324 changed the EQC’s 

general permissive authority to adopt low carbon fuel standards to a directive, but left in place the EQC’s permissive 

authority to adopt a schedule for reducing greenhouse gas 

emissions, newly extended to 2025. Or Laws 2015, ch 4, 

§ 3(2)(a), 3(2)(b)(A). SB 324 further directed the EQC to 

adopt rules to manage and contain the cost of compliance 

with the standards, expressly permitting alternative compliance by obtaining and trading credits for fuels used as 

substitutes for gasoline or diesel. Id. § 3(2)(d).”

Blosser/Romain (IP 45), 358 Or at ___.
Cite as 358 Or 312 (2015) 315

IP 46 would change parts of the original 2009 law 

and SB 324, repeating some—but not all—of the changes 

contained in IP 45, and making other changes. See Blosser/

Romain (IP 45), 358 Or at ___ (describing changes that 

IP 45 would make to 2009 law and SB 324). As with IP 45, 

IP 46 would limit application of the state’s low carbon fuel 

standards to blended liquid fuels. IP 46, § 1(1)(b). Also as 

with IP 45, IP 46 bases its definition of “low carbon fuel 

standards” on fuels “available in commercial quantities” in 

Oregon, expressly defining that phrase as alternative fuels 

“actually * ** available in this state in sufficient quantities for all persons who import gasoline or diesel to comply 

with the standards.” Id. § 1(1)(d). Further, “[a]s a means 

for managing and containing the costs of compliance with 

the standards,” IP 46 would require the EQC to adopt rules 

for blending liquid fuels. Those rules would be subject to a 

restriction on the amount of ethanol or biodiesel that may 

be used in creating blended fuels and also to a prohibition 

against requiring the blending of any low carbon intensity 

fuel that is more expensive than the gasoline or diesel into 

which it is blended. Id. § 1(2)(c).

Finally, again as with IP 45, IP 46 would eliminate the cost-containment provision set out SB 324, which, 

in addition to expressly requiring the EQC to adopt costcontainment rules, also permits alternative compliance 

with the standards by obtaining and trading fuel credits. 

Id. § 1(2) (eliminating paragraph (d) from SB 324, Or Laws 

2015, ch 4, § 3(2)(d)). IP 46 would replace that provision with 

a new provision that requires the EQC to notify all Oregon 

gasoline and diesel fuel importers when it has determined 

that any alternative fuel is “available in commercial quantities.” Id. § 1(2)(d). Unlike IP 45, however, IP 46 further provides that any person required to blend fuels under IP 46 

may contest the EQC’s finding of commercial availability 

in the same manner provided for challenging the adoption 

of an administrative rule. IP 46, § 1(2)(d); see ORS 183.400 

(validity of any rule may be determined upon petition for 

judicial review to court of appeals); ORS 183.497 (court in 

rules challenge proceeding may award attorney fees to prevailing petitioner).
316 Blosser/Romain v. Rosenblum (IP 46)

The Attorney General drafted a ballot title for IP 46, 

ORS 250.065(3), and the Secretary of State circulated that 

title for public comment, ORS 250.067(1). After receiving 

comments, the Attorney General modified its draft ballot 

title, ORS 250.067(2)(a), and certified the following ballot 

title to the Secretary of State:

“Restricts low carbon fuel standards to

requiring blends of gasoline/diesel with

commercially available fuels

“Result of ‘Yes’ Vote: ‘Yes’ vote restricts low carbon fuel 

standards to requiring blending gasoline or diesel with 

commercially available liquid fuels; eliminates fuel credit 

system for satisfying standards.

“Result of ‘No’ Vote: ‘No’ vote retains low carbon fuel 

standards for liquid, non-liquid transportation fuels; standards allow obtaining fuel credits to satisfy standards, 

require rules to control costs.

“Summary: Currently, Environmental Quality Commission sets low carbon fuel standards for reducing average greenhouse gas emissions from gasoline, diesel, and 

other transportation fuels, including non-liquid fuels. 

Commission currently must adopt rules to control costs, 

must allow fuel distributors to meet standards by purchasing credits from others whose products exceed required 

standards. Measure restricts low carbon fuel standards to 

apply only to blending gasoline and diesel with other liquid fuels, making standards inapplicable to other types 

of fuels and eliminating the credit system. Measure further provides that adopted standards cannot require carbon reductions unless low carbon fuel needed to meet the 

blending requirements is ‘available in commercial quantities’ (defined) and costs no more than the gasoline or diesel 

into which it is blended. Other provisions.”

Petitioners are electors who timely submitted comments about the Attorney General’s draft ballot title and 

who now are dissatisfied with the certified ballot title, ORS 

250.085(2). Petitioner Blosser challenges the caption, the 

“yes” result statement, and the summary, including components added after the comment period ended. See ORS 

250.085(6) (permitting Supreme Court consideration of such 

arguments). Petitioner Romain also challenges the caption 
Cite as 358 Or 312 (2015) 317

and the summary, as well as the “no” result statement, consistently with his earlier comments.

We begin with petitioner Romain’s challenge to 

the caption. As with IP 45, petitioner Romain argues that, 

as part of setting out the subject matter of IP 46, the caption should mention the elimination of the ability to obtain 

and trade fuel credits as a means of alternatively complying with low carbon fuel standards. For the reasons set 

out in Blosser/Romain (IP 45), 358 Or at ___, we agree 

and refer the caption to the Attorney General for modification. See ORS 250.035(2)(a) (caption limited to 15 words 

and must “reasonably identif[y] the subject matter” of proposed measure); Whitsett v. Kroger, 348 Or 243, 247, 230 

P3d 545 (2010) (“subject matter” refers to “actual major 

effect” or, if more than one, all such effects within limit of 

word count).

Petitioner Blosser also challenges the caption, arguing that it should refer to the provision of IP 46 that permits 

any person required to blend fuels to contest an EQC finding 

that alternative fuels are “available in commercial quantities,” IP 46, § 1(2)(d), by filing an administrative action similar to an administrative rules challenge. Petitioner Blosser 

relies on Greenberg v. Myers, 340 Or 65, 70-72, 127 P3d 1192 

(2006), and other cases for the proposition that voters must 

be notified when a proposed measure provides or creates 

a cause of action. The Attorney General responds that the 

administrative action provision is not an actual major effect 

that must be mentioned in the caption.1

Petitioner Blosser is correct that, to accurately 

describe an actual effect of the proposed measure at issue, 

a caption appropriately may or even perhaps should refer 

to a new authorization of legal action. As illustrated by 

Greenberg, however, the assessment whether to include such 

a reference may depend on the nature and complexity of the 

measure, as well as the nature of the new authorization, 

given the 15-word limit set out in ORS 250.035(2)(a). See

1 In that regard, the Attorney General notes that existing law provides a 

mechanism for challenging agency actions in other than a contested case, ORS 

183.484, and argues that the administrative action provision set out in IP 46 is, 

“at most,” a substitute for that general remedy.
318 Blosser/Romain v. Rosenblum (IP 46)

340 Or at 70-72 (measure at issue incorporated multi-part 

enforcement scheme including new forms of liability that 

“would enact major changes to Oregon law that likely would 

be significant to the voting public”). Given the 15-word limit, 

together with the complexity of the key provisions of IP 46 

that change the nature of the low carbon fuel standards 

and compliance with those standards, and the similarity 

of its administrative action provision to existing remedies, 

we conclude that the caption was not required to refer to 

the provision of IP 46 that authorizes administrative action 

to challenge an EQC commercial availability finding. As 

explained below, however, we agree with petitioner Blosser 

that the summary should refer to that provision.

Turning to the “yes” result statement, petitioner 

Blosser raises a similar challenge to use of the words “commercially available” that he raised as to IP 45—that is, that 

those words are misleading given the elaboration in IP 46 

as to the meaning of the phrase “available in commercial 

quantities.” See Blosser/Romain (IP 45), 358 Or at ___ 

(describing challenge, in light of express definition of “available in commercial quantities,” IP 45, § 1(4), including cost 

and other restrictions); compare IP 46, § 1(2)(c)(B) (rules for 

blending liquid fuels “available in commercial quantities” 

may not require blending of alternative fuel more expensive 

than gasoline or diesel fuel). As in Blosser/Romain (IP 45), 

we agree with petitioner Blosser that, without referring 

to the express “expens[e]” limitation that applies to any 

requirement under IP 46 to blend alternative fuels with 

gasoline or diesel, IP 46, § 1(2)(c)(B), the words “commercially available” in the “yes” result statement are misleading and the statement therefore must be modified. See ORS 

250.035(2)(b) (“yes” result statement must set out simple 

and understandable statement of not more than 25 words 

that describes result if measure is approved).2

2 We note that the Attorney General also used the words “commercially 

available” in the caption for IP 46, although she did not do so in the caption for 

IP 45. Blosser/Romain (IP 45), 358 Or at ___. In Blosser/Romain (IP 45), petitioner Romain argued that the caption should include a reference to commercial 

availability, but petitioner Blosser countered that such a reference would be misleading, and we agreed with petitioner Blosser. Id. at ___. As to IP 46, however, 

no party challenges the Attorney General’s inclusion of the words “commercially 

available” in the caption.
Cite as 358 Or 312 (2015) 319

Petitioner Blosser also argues, as he did with the 

caption, that the “yes” result statement should notify voters 

that IP 46 authorizes legal action by way of an administrative challenge. As with the caption, in light of the 25-word 

limit on the “yes” result statement and the complexity of the 

key provisions of IP 46 already noted in the “yes” result statement, we conclude that that statement was not required to 

include a reference to the administrative challenge provision.

Next, petitioner Blosser argues that the summary 

should notify voters that IP 46 authorizes legal action, in the 

form of an administrative challenge by any person required 

to blend fuels to an EQC finding of commercial availability, 

potentially including prevailing party attorney fee awards. 

Although we disagreed above with petitioner Blosser’s arguments that the caption and the “yes” result statement must 

refer to that provision, we agree that the express authorization in IP 46 to challenge an EQC determination on commercial availability by administrative action is a major effect 

that should be mentioned in the summary. See generally

Wilkeson v. Myers, 329 Or 540, 546, 992 P2d 456 (1999) (new 

enforcement provision in proposed measure would enact significant change to current law); Mabon v. Kulongoski, 324 

Or 315, 319-20, 925 P2d 1234 (1996) (general standing provision qualified as part of subject matter of measure).3

Finally, both petitioners raise other challenges to 

the summary, and petitioner Romain raises an additional 

challenge to the “no” result statement, ORS 250.035(2)(c),

that are similar to challenges that they raised—and we 

rejected—as to IP 45. Blosser/Romain (IP 45), 358 Or at 

___, ___. We similarly reject them here without further 

discussion.

We refer the ballot title for IP 46 to the Attorney 

General for modification of the caption, the “yes” result 

statement, and the summary, as described in this opinion.

The ballot title is referred for modification.

3 In modifying the summary in that regard, the Attorney General should 

consider whether, within the 125-word limit, the summary also should refer to 

the potential availability of attorney fees. See Novick/Crew v. Myers, 337 Or 568, 

574, 100 P3d 1064 (2004) (noting word limit as consideration whether Attorney 

General must include similar detail in summary).
320 Blosser/Romain v. Rosenblum (IP 46)

APPENDIX

Relating to transportation fuel cost containment.

Be It Enacted by the People of the State of Oregon:

Section 1. Section 6, chapter 754, Oregon Laws 

2009, as amended by Section 3, chapter 4, Oregon Laws 

2015, is amended to read:

Sec. 6. (1) As used in this section:

(a) “Greenhouse gas” has the meaning given that 

term in ORS 468A.210.

(b) “Low carbon fuel standards” means standards 

for the reduction of greenhouse gas emissions [on average, 

per unit of fuel energy] by the blending of liquid fuel 

available in commercial quantities in this state.

(c) “Motor vehicle” has the meaning given that 

term in ORS 801.360.

(d) “Available in commercial quantities” 

means that the fuel must actually be available in 

this state in sufficient quantities for all persons 

who import gasoline or diesel to comply with the 

standards.

(2)(a) The Environmental Quality Commission 

shall adopt by rule low carbon fuel standards for gasoline, 

diesel and liquid fuels used as substitutes for gasoline and 

diesel.

(b) The commission may adopt the following 

related to the standards, including but not limited to:

(A) A schedule to phase in implementation of the 

standards in a manner that reduces the average amount of 

greenhouse gas emissions per unit of fuel energy of the fuels 

by 10 percent below 2010 levels by the year 2025 or by a 

later date if the commission determines that an extension is 

appropriate to implement the standards;

(B) Standards for greenhouse gas emissions 

attributable to the fuels throughout their lifecycles, including by not limited to emissions from the production, storage, 
Cite as 358 Or 312 (2015) 321

transportation and combustion of the fuels and from changes 

in land use associated with the fuels;

(C) Provisions allowing the use of all types of 

liquid low carbon fuels to meet the low carbon fuel standards [,including but not limited to biofuels, biogas, natural 

gas, liquefied petroleum gas, gasoline, diesel, hydrogen and 

electricity];

(D) Standards for the issuance of deferrals, established with adequate lead time, as necessary to ensure adequate fuel supplies;

(E) Exemptions for fuels that are used in volumes 

below thresholds established by the commission; and

(F) Standards, specifications, testing requirements and other measures as needed to ensure the quality of fuels produced in accordance with the low carbon fuel 

standards, including but not limited to the requirements of 

ORS 646.910 to 646.923 and administrative rules adopted 

by the State Department of Agriculture for motor fuel quality. [and]

[(G) Adjustments to the amounts of greenhouse gas 

emissions per unit of fuel energy assigned to fuels for combustion and drive train efficiency.]

[(c) Before adopting standards under this section, 

the commission shall consider the low carbon fuels standards 

of other states, including but not limited to Washington, for 

the purpose of determining schedules and goals for the reduction of the average amount of greenhouse gas emissions per 

unit of fuel energy and the default values for these reductions 

for applicable fuels.]

(c) As a means for managing and containing 

the costs of compliance with the standards, the commission shall adopt by rule provisions for blending 

liquid fuels available in commercial quantities in this 

state. Provisions adopted under this subparagraph 

may not:

(A) Require that any person who imports 

gasoline or diesel fuel blends into that fuel more 
322 Blosser/Romain v. Rosenblum (IP 46)

ethanol or biodiesel than required by ORS 646.913 

and 646.922; or

(B) Provide for or require that any person 

who imports gasoline or diesel fuel blend into that 

fuel any alternative fuel that is more expensive than 

the gasoline or diesel fuel into which it is blended.

(d) The commission shall notify all persons 

who import gasoline or diesel fuel into this state 

when it has determined that any liquid fuel used as 

a substitute for gasoline or diesel is available in commercial quantities in this state. Any person required 

to blend that substitute fuel may contest the finding 

of commercial availability in the manner provided 

for challenging administrative rule adoption.

[(d) The commission shall adopt by rule provisions 

for managing and containing the costs of compliance with the 

standards, including but not limited to provisions to facilitate compliance with the standards by ensuring that persons 

may obtain credits for fuels used as substitutes for gasoline 

or diesel and by creating opportunities for persons to trade 

credits.]

(e) The commission shall exempt from the standards any person who imports in a calendar year less than 

500,000 gallons of gasoline and diesel fuel, in total. Any fuel 

imported by persons that are related or share common ownership or control shall be aggregated together to determine 

whether a person is exempt under the paragraph.

(f)(A) The commission by rule shall prohibit fuels 

that contain biodiesel from being considered an alternative 

fuel under these standards unless the fuel meets the following standards:

(i) Fuel that consists entirely of biodiesel, designated by B100, shall comply with ASTM D 6751 and shall 

have an oxidation stability induction period of not less than 

eight hours as determined by the test method described in 

European standard EN 15751; and

(ii) Fuel that consists of a blend of diesel fuel and 

between 6 and 20 volume percent biodiesel, and designated 
Cite as 358 Or 312 (2015) 323

as biodiesel blends B6 to B20, shall comply with ASTM D 

7467 and shall have an oxidation stability induction period 

of not less than 20 hours as determined by the test method 

described in European standard EN 15751.

(B) The commission may adopt rules different from 

those required under subparagraph (A) of this paragraph if 

an ASTM or EN standard applicable to biodiesel is approved 

or amended after March 12, 2015, or if the commission finds 

that different rules are necessary due to changes in technology or fuel testing or production methods.

(C) As used in this subsection, “biodiesel” means 

a motor vehicle fuel consisting of mono-alkyl esters of long 

chain fatty acids derived from vegetable oils, animal fats or 

other nonpetroleum resources, not including palm oil.

(g) The commission may not differentiate 

among crude oils in determining the lifecycle carbon 

intensity value for gasoline and diesel.

(3) In adopting rules under this section, the 

Environmental Quality Commission shall evaluate:

(a) Safety, feasibility, net reduction of greenhouse 

gas emissions and cost-effectiveness;

(b) Potential adverse impacts to public health and 

the environment, including but not limited to air quality, 

water quality and the generation and disposal of waste in 

this state;

(c) Flexible implementation approaches to minimize compliance costs; and

(d) Technical and economic studies of comparable 

greenhouse gas emission reduction measures implemented 

in other states and any other studies as determined by the 

commission.

(4)(a) The provisions of this section do not apply 

to fuel that is demonstrated to have been used in any of the 

following:

(A) Motor vehicle registered as farm vehicle under 

the provisions of ORS 805.300.
324 Blosser/Romain v. Rosenblum (IP 46)

(B) Farm tractors, as defined in ORS 801.265.

(C) Implements of husbandry, as defined in ORS 

801.310.

(D) Motor trucks, as defined in ORS 801.355, used 

primarily to transport logs.

(E) Motor vehicles that are not designed primarily to transport persons or property, that are operated on 

highways only incidentally, and that are used primarily for 

construction work.

(F) Watercraft.

(G) Railroad locomotives.

(b) The Environmental Quality Commission shall 

adopt by rule standards for persons to qualify for the exemptions provided in this subsection.