A lawsuit that alleges Oregon Gov. Kate Brown overstepped her authority with an executive order to reduce carbon emissions may first have to answer more mundane legal questions.

The Oregon Farm Bureau and a coalition of other companies and business groups filed the complaint to prove that Brown’s executive order unconstitutionally violates the separation of powers by enacting legislation without the approval of state lawmakers.

However, the plaintiffs may initially be required to show they have the legal standing to pursue that claim in court and that it’s legally “ripe” to be heard by a judge.

“There are some preliminary issues here that the state may or may not raise,” said Steve Kanter, a constitutional law professor at Lewis & Clark University. “I anticipate the state might raise some of them, and depending on the facts, one or more may be serious.”

To prove standing, plaintiffs must show they’re directly enough aggrieved by a government’s action to challenge it in court.

Ripeness, meanwhile, is intended to ensure that a lawsuit involves more than an abstract question of law but pertains to a factual controversy.

For example, the state government could argue the executive order hasn’t resulted in actual government actions affecting the plaintiffs that can be reviewed in court.

“A court could say, ‘Wait and see what the rule-making looks like,’” Kanter said.

If the lawsuit clears those potential obstacles, the parties could then argue over the substance of the case: whether Gov. Brown was acting within her power in issuing Executive Order 20-04, which she signed in March shortly after the Legislature adjourned without voting on a controversial climate bill that Republicans walked out to oppose.

The executive order aims to battle climate change by establishing goals for reducing greenhouse gas emissions below 1990 levels by 45% by 2035 years and 80% by 2050 — the same benchmarks set by climate bills that failed to pass in 2020 and 2019.

Under a 2007 law passed by the Legislature, the policy goals aim for a 10% reduction below 1990 levels by 2020 and a 75% reduction by 2050.

Fuel standards are also affected by the executive order, which creates the goal of reducing greenhouse gas emissions per unit of energy below 2015 levels by 20% by 2030 and 25% by 2035.

To compare, the 2007 law set a policy goal of reducing carbon emissions per unit of fuel energy by 10% below 2010 levels by 2025, unless the Environmental Quality Commission provides an extension.

Business groups, including those that filed the complaint, opposed the stricter limits proposed in legislation because they fear they’ll lead to increased fuel and energy costs that will make Oregon companies less competitive.

The lawsuit alleges that Brown’s executive order performs a “law-making function” that infringes on the power of the Legislative Assembly, which is meant to fulfill this role under the Oregon Constitution.

“The governor cannot by fiat just change the law,” said Joel Mullin, attorney for the plaintiffs. “The job of the governor is to enforce the laws not to change the laws.”

Mullin said he anticipates that Brown may argue the lawsuit isn’t ripe for judicial review, because the state agencies haven’t yet implemented or enforced any rules due to the executive order.

However, Oregon case law is clear that lawsuits immediately become ripe when the executive branch has acted in an unconstitutional manner.

“It doesn’t matter what the policy objective is, or how righteous they believe the policy objective is, there is a lot more at stake than that,” Mullin said. “Just because you’re convinced you’re right about something on a policy basis, that doesn’t give you the right to overrule the law.”

Charles Boyle, deputy communications director for the governor’s office, would not comment on the legal allegations but released a statement saying that “climate action is crucial and urgent.”

Industries that are “dependent on polluting the climate” have spent millions of dollars on lobbying and political donations while “spreading misinformation about climate change,” so their complaint is “no surprise” but a “huge disappointment,” the statement said.

“Many of the industries behind this lawsuit used their influence to shut down the legislative branch of government,” the statement said. “Now they want the judicial branch to shut down action from the executive branch.”

If the case is argued on its merits, the court will likely examine how much power the legislative branch has delegated to the executive over emissions, as well as the governor’s inherent authority over such matters, said Kanter, the law professor.

The “devil is in the details” and may require a parsing of legislative history to see if lawmakers had intended the less stringent goals as a cap on emissions reductions, or if they gave the governor leeway to do more, Kanter said.