Friends of the Columbia Gorge and other environmental groups are currently challenging the agency’s decision to greenlight construction of the Summit Ridge Wind Farm in Wasco County. They say that project, located along a section of the Deschutes River classified as wild and scenic, would have adverse impacts on raptors and other wildlife. Again, they contend that agency illegally allowed project backers to begin roadwork at the site to meet a construction deadline, avoiding changes its site certificate that would have triggered more public scrutiny and input. Phased construction was never contemplated in the original permit.
To meet a construction deadline in their state permit, the backers of the proposed Perennial WindChaser natural gas plant near Hermiston broke ground on a road at the facility in September. But they did so before obtaining a required stormwater discharge permit.
The developer of a proposed gas-fired power plant in Hermiston has apparently decided to pull the plug and withdraw its state-issued permit with Oregon’s Energy Facility Siting Council.
The decision should end two related lawsuits over the Perennial Wind Chaser Station, but not the controversy surrounding what opponents say are unlawful efforts by staff at the Oregon Department of Energy to expedite big energy projects without adequate public scrutiny and in violation of state rules.
In this case, state regulators’ allowed the developer to build a “road to nowhere” in order to meet a construction deadline and potentially avoid millions of dollars in extra carbon mitigation fees under stricter emission standards that Gov. Kate Brown established in early 2020.
Opponents say that on the eve of oral arguments in one of the resulting lawsuits they filed in Multnomah County Circuit Court, Perennial’s lawyer announced in an email that the project will “not be constructed” and that the company would ask Oregon’s Energy Facility Siting Council to terminate its permit, which is called a site certificate.
J.J. Jamieson, a vice president at Perennial, declined to comment on the move this week. “As you can imagine this is a complex issue that we are taking very seriously,” he said in an email. “We are working on a statement for release.”
Jennifer Kalez, a spokeswoman for the Department of Energy, said the agency had not received a formal request.
“However,” she said, “we understand – based on Perennial’s communication as part of the Circuit Court appeal – that the developer intends to do so. We won’t take official action until we receive that formal notice.”
When the request does come, Perennial will need to submit a retirement plan that shows the site will be restored to a useful, non-hazardous condition, Kalez said. That plan will need to be approved by the siting council.
Erin Saylor, an attorney for the conservation group Columbia Riverkeeper, described Perennial’s decision as a big win for Oregonians and the climate. But she said it was disappointing not to get a court ruling on what the plaintiffs maintain was an unlawful effort by staff at the Oregon Department of Energy to move the project forward.
Conservation groups have long opposed the 415-megawatt gas-fired plant, which was originally proposed in 2014, and could have become one of the largest stationary sources of greenhouse gases in Oregon. They point out that Perennial would be the fifth large gas plant cancelled in Oregon over the last five years.
Columbia Riverkeeper and Friends of the Columbia River Gorge filed lawsuits after they say staff at the energy department and Perennial “concocted an illegal scheme to green-light construction of the project in violation of state law and the terms and conditions of the site certificate.”
In effect, Perennial faced a Sept. 23, 2020 deadline to start construction on the facility. Failing that, it would have been forced to seek an amendment that would have subjected the project to a new round of public scrutiny and subjected it to higher carbon emission fees that the energy department adopted last year. Opponents estimated that cost could have exceeded $10 million.
Instead, agency staff allowed the developer to begin “phased construction,” clearing land for an access road to demonstrate that the project was underway, even as the project backers had yet to meet all the conditions in the permit to begin construction of the actual plant. The site certificate never mentioned phased construction, and the opponents argued that Oregon administrative rules specifically prohibited any construction until the company met those conditions and had secured construction rights for the entire project.
Just prior to the deadline, the company started clearing land for a road at the site near Hermiston. But it did so without a required stormwater discharge permit from the Department of Environmental Quality – a construction requirement in the siting council’s authorization of the project.
That resulted in a fine of $4,800 from the DEQ, and generated a separate lawsuit against the company under the Clean Water Act by conservation groups. But energy department officials maintained that the lack of that permit had no bearing on whether Perennial met the construction deadline, and was simply an enforcement matter for DEQ.
The Energy Department said that Perennial met all the “pre-construction requirements” for the road, even if it fell short of meeting the “construction requirements” in its permit for the larger facility. It also contends that the phased construction approach is allowed under its rules and consistent with its approach on other projects.
The conservation groups say the agency’s actions were mind boggling in light of the governor’s executive order on climate change last spring, and are part of a larger pattern of bending rules to accommodate energy developers.
The governor issued her executive order on climate change in April 2020, a week after a Republican walkout in the Legislature killed Democrats’ carbon cap and trade proposal. The order directed 19 state agencies and commissions to take specific actions to reduce emissions and mitigate the impacts of climate change. The energy department subsequently raised the carbon offset fees for large polluters by 50%.
The groups also said they were stunned by the energy department’s motion to dismiss their complaint in court. The agency argued the groups lacked standing because the climate change damages they were asserting were “a political choice.”
While the litigation over the Perennial project may go away, conservation groups and others are continuing to challenge what they contend are similar actions by the agency.
Friends of the Columbia Gorge and other environmental groups are currently challenging the agency’s decision to greenlight construction of the Summit Ridge Wind Farm in Wasco County. They say that project, located along a section of the Deschutes River classified as wild and scenic, would have adverse impacts on raptors and other wildlife.
Again, they contend that agency illegally allowed project backers to begin roadwork at the site to meet a construction deadline, avoiding changes its site certificate that would have triggered more public scrutiny and input. Phased construction was never contemplated in the original permit.
“Because there is still active litigation, we don’t have further comment at this time,” said Kalez, the agency’s spokeswoman.
Nathan Baker, staff attorney for Friends of the Columbia Gorge, said that the terms “construction” and “facility” are defined in statute and that energy department can’t unilaterally change their meaning. If developers or energy department staffers want certain conditions to apply to only certain parts of a facility, or only at certain points in time, he said, they should write the site certificates that way.
“Friends and our allies will continue to seek to hold ODOE accountable for violating state law in the Summit Ridge litigation,” Baker said.
Likewise, La Grande resident Irene Gilbert has been trying to hold the agency and the siting council’s feet to the fire for years. She contends both have serially rejected requests by the public for specific information on various energy projects and denied requests for contested cases, which allow the public to challenge agency actions in an administrative hearing.
“There is a lack of oversight, lack of accountability and unrestricted power which has resulted in an arrogance and disregard for anyone objecting to their actions,” Gilbert said in a recent email to members of House and Senate Committees on Energy and the Environment. “It has made this agency a threat to every citizen and every resource of this state.”
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