Challenging Oregon’s Decision

Challenging Oregon’s Decision to Approve Construction of New Fracked Gas Power Plant

On November 2, Columbia Riverkeeper and Friends of the Columbia Gorge filed a Petition for Judicial Review in Multnomah County Circuit Court against the Oregon Department of Energy (ODOE). The lawsuit challenges multiple determinations ODOE made in approving Perennial WindChaser LLC’s (Perennial) plan to start “phased construction” of its 415-MW fracked gas power plant project in Umatilla County by building an access road and bridge. This “phased” construction plan basically amounts to Perennial building a $200,000 “road to nowhere,” as the company still lacks a purchaser for its proposed power and has no immediate plans to construct any other portion of the facility. 

Perennial was first issued a permit, called a “site certificate,” by Oregon’s Energy Facility Siting Council (EFSC) back in 2015. Pursuant to an amendment approved by EFSC in 2019, Perennial was required to start construction of the facility by September 23, 2020. However, under the terms of the site certificate Perennial was required to meet numerous preconstruction conditions before it could commence construction. Rather than require Perennial to follow the terms of its site certificate, ODOE essentially rewrote the conditions to allow Perennial to meet only those requirements the agency deemed “applicable” to Perennial’s plan to build an access road and bridge. Oregon law is very clear that any changes to the terms of the site certificate must have been approved by EFSC—ODOE does not have the authority to unilaterally revise site certification conditions. 

Usually, if a developer needs to extend its construction start deadline it must apply for a site certificate amendment; a process that would be subject to public review and decided by EFSC. Perennial, however, has significant incentive to avoid a site certificate amendment: through the amendment process EFSC would be required to revise the carbon mitigation provisions to reflect the new rates EFSC adopted over the summer. By avoiding the revised rates, Perennial seeks to save approximately $11 million in carbon mitigation fees. If constructed, Perennial would be one of the largest stationary sources of greenhouse gas emissions in the state. Instead of holding Perennial accountable for its emissions, ODOE rushed to help the company avoid the new carbon mitigation rates. 

But that’s not all—in its rush to approve Perennial’s plan to build a “road to nowhere,” ODOE overlooked the fact that Perennial never received a construction stormwater permit from the Oregon Department of Environmental Quality—just one of many preconstruction requirements that were ignored. In October, Riverkeeper sent Perennial a notice of its intent to file suit under the Clean Water Act for starting construction without this crucial permit. 

If you missed the Oregonian’s recent article about this ongoing saga, you can read it here.

You can read our legal petition here.