August 4, 2019

Oregon Supreme Court ruling could nix permits for big energy projects

By Phil Wright, East Oregonian, Aug 3, 2019,

PORTLAND – An Oregon Supreme Court ruling could bring an end to permits for two big energy projects in Eastern Oregon and eight more statewide.

The Oregon Energy Facility Siting Council in October 2017 adopted a swifter, less public method to amend permits, or site certificates, for wind farms, thermal power plants and other large energy facilities. While the traditional “type A” review process involved public notices and hearings, the new “type B” process cut out the public involvement, including allowing interested parties to request a contested case proceeding. Type B also required staff to issue decisions as soon as possible.

The Friends of the Columbia Gorge and eight other environmental conservation and community groups teamed up and filed an appeal in December 2017 to challenge the new rules in the Oregon Supreme Court.

The court in a 26-page decision Thursday determined the Energy Facility Siting Council violated Oregon rule-making procedures and set up rules that exceeded the council’s statutory authority. In short, the court ruled, the Energy Facility Siting Council’s rules were invalid. Nathan Baker, senior staff attorney for Friends of the Columbia Gorge, praised the verdict:

“The supreme court’s decision establishes an important precedent that all state agencies in Oregon must follow when adopting rules, in order to ensure full public transparency.”

The siting council has 10 applications for amendments to site certificates pending that came in after the rule change in 2017. Baker explained the Oregon Court of Appeals has determined state agencies cannot apply or enforce invalid rules, thus those applications are invalid.

That includes the permits for Summit Ridge Wind Farm proposal in Wasco County along the Deschutes River and the Perennial Wind Chaser Station, a natural gas power plant proposal in Umatilla County. As a result of the ruling, Baker said, the permits to build the two projects have expired.

Neither are under construction, and Summit Ridge has sought delays for a decade.

“They could have started construction at any time in the last several years,” Baker said.

Perennial Wind has been in the works for five years but has yet to break ground, and it has filed to delay construction for two more years. The siting council plans to take that up at a public hearing Aug. 22 at 5:45 p.m. at the Riverfront Room, 2 Marine Drive N.E., at the Port of Morrow in Boardman.

Baker said the state should not allow these projects to linger for years on end without construction.

Gary Kahn, one of the attorneys for the plaintiffs in this case, emailed attorneys with the Oregon Department of Justice’s Natural Resources Section to confirm if the pending applications were invalid and would not receive state approval. He asked for a swift response because Monday is the deadline for someone to request a contested case in the Summit Ridge Wind Farm matter.

Patrick Rowe, attorney with the Natural Resources Section, responded: “DOJ and ODOE [Oregon Department of Energy] have just begun evaluating the Court’s decision and assessing how ODOE will handle applications that are currently being processed. We will not have completed that evaluation nor reached any decisions prior to the deadline for the second opportunity to request a contested case in the Summit Ridge Wind Farm matter.”

Todd Cornett, assistant director for Energy Facility Siting, sent this reply: “We are still reviewing the Oregon Supreme Court’s ruling to determine how it will affect amendments in process and proposed amendments for energy facilities.”

Baker said with the new rules out, siting energy facilities reverts back to the longer and more public process, and the projects in the pipeline can reapply under that process. He also said he and the other attorneys for the prevailing side are confident the state eventually will reach the conclusion the permits are as invalid as the rules.

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