Oregon Supreme Court Invalidates Energy Council's Rules for Modifying Power Plants

"We expect the court's decision will send the Perennial Wind Chaser power plant—a 415-MW fracked gas power plant—back to the drawing board. The proposed fracked gas facility’s outdated permit should expire now as a result of this decision. Oregonians are demanding clean energy solutions, not dirty fossil fuel polluters," -Lauren Goldberg, Columbia Riverkeeper.


Oregon Supreme Court Invalidates Energy Council's Rules for Modifying Power Plants

Today’s Ruling Also Expected to Terminate Two Long-Pending Energy Projects 

Portland, OR (August 1, 2019)—Today the Oregon Supreme Court held in favor of a coalition of nine conservation organizations, invalidating rules adopted in 2017 by the Oregon Energy Facility Siting Council (EFSC) that had dramatically reduced transparency and discouraged public participation in permitting decisions for large power plants throughout Oregon. Today’s legal victory is also expected to terminate the previously issued permits for two controversial power projects, theSummit Ridge Wind Farm proposed in Wasco County, along the Deschutes river, and the Perennial Wind Chaser Station, a natural gas power plant proposed in Umatilla County.

In October 2017, the siting council adopted the controversial rules, which changed the procedures for amending permits (called site certificates) for thermal power plants, wind energy projects, and other large energy facilities. In adopting these rules, the siting council disregarded extensive public comments calling for more transparency and public participation opportunities. Instead, the new rules hid agency decisions to expand power plants from the public, unlawfully delegated important decisions to Oregon Department of Energy (ODOE) staff, and illegally modified judicial review procedures for challenging council decisions. In December 2017, Friends of the Columbia Gorge and eight other conservation organizations filed an appeal in the Oregon Supreme Court challenging the new rules.

"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," said Nathan Baker, senior staff attorney for Friends of the Columbia Gorge. "When asked by the public, an agency adopting a new rule must issue a statement explaining how the agency intends to measure its own success at achieving the goals of the rule. The agencies failed to do that here, and as a result, their rules are invalid."

The Oregon Supreme Court also held that the siting council unlawfully restricted the rights of the public to challenge the council’s permitting decisions on energy projects. "An agency cannot insulate its own decisions from judicial review. The siting council exceeded its statutory authority by adopting these rules," Baker added.

"Oregonians are increasingly engaging in the effort to clean up our state's energy system, but these newly adopted rules were unfortunately limiting public involvement," said Ryan Houston, executive director of the Oregon Natural Desert Association (ONDA). "ONDA is encouraged by the court's decision striking down these flawed rules. The siting council now has an opportunity to reform its rules to promote citizen involvement in decisions on large energy projects."

Today's court ruling also means that all pending applications for amendments to site certificates that were submitted after October 2017 under the invalid rules are similarly invalid, and cannot be processed by ODOE and the siting council. For most of these energy projects, the developers can simply reapply for amendments under the pre-October 2017 rules, which are now reinstated under the court’s ruling. However, as a result of today's ruling, the permission to build two specific projects has now expired. The controversial Summit Ridge Wind Farm was originally proposed in 2009 to be sited in Wasco County along the Lower Deschutes Wild and Scenic River. And the Perennial Wind Chaser Station, a 415-megawatt natural gas power plant, was first proposed in 2014 to be sited in western Umatilla County. Both of these projects would have resulted in significant environmental impacts. If the developers still desire to pursue either of these projects, they must file applications for new site certificates—effectively starting the permitting process over from scratch.

"Friends supports well-planned renewable energy projects and full public transparency," said Michael Lang, conservation director for Friends of the Columbia Gorge. "Unfortunately, the Summit Ridge project was neither well-planned nor ensured full transparency. This massive wind energy project would have been built on the canyon rim above the Lower Deschutes Wild and Scenic River and in full view from the Columbia River Gorge National Scenic Area, harming the scenic beauty and sensitive wildlife that Oregonians have fought so hard to protect."

In 2017, the proposed Summit Ridge project was acquired by Pattern Energy Group, after being abandoned by the original developer. In 2018 and 2019, Pattern sought a third round of extensions of the construction deadlines for the project, yet refused to update the outdated and inaccurate baseline surveys and data regarding the project’s potential impacts to birds, bats, and wildlife habitat. In 2010, the U.S. Fish and Wildlife Service called for a six-mile buffer between the proposed Summit Ridge wind turbines and any golden eagle nest, except for in non-use locations. Pattern never publicly announced whether it was intending to honor these buffer prescriptions.

"The proposed Summit Ridge wind energy project threatened bald eagles, golden eagles, and several other important bird and bat species," said Doug Heiken, conservation and restoration coordinator for Oregon Wild. "Despite these threats, Pattern Energy refused to update the outdated wildlife surveys and data—many of which were a decade old—so that the agencies and the public would fully understand the project’s impacts to eagles and other wildlife. Oregon Wild is relieved to know that this poorly planned project is expected to be terminated as a result of today’s courtruling."

"We expect the court's decision will send the Perennial Wind Chaser power plant—a 415-MW fracked gas power plant—back to the drawing board. The proposed fracked gas facility’s outdated permit should expire now as a result of this decision. Oregonians are demanding clean energy solutions, not dirty fossil fuel polluters," said Lauren Goldberg, Legal and Program Director for Columbia Riverkeeper.

The petitioners in the case were a coalition of nine conservation and community groups that collectively represent more than 45,000 members and supporters. The coalition was led by Friends of the Columbia Gorge and also included Northwest Environmental Defense Center, Oregon Natural Desert Association, Oregon Wild, the Hood River Valley Residents Committee, Columbia Riverkeeper, WildLands Defense, the Greater Hells Canyon Council, and the Oregon Coast Alliance.

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About Columbia Riverkeeper

Columbia Riverkeeper’s mission is to protect and restore the water quality of the Columbia River and all life connected to it, from the headwaters to the Pacific Ocean. Representing over 16,000 members and supporters, Columbia Riverkeeper works to restore a Columbia River where people can safely eat the fish they catch and where children can swim without fear of toxic exposure. Columbia Riverkeeper is a member of Waterkeeper Alliance, the world’s fastest-growing environmental movement, uniting more than 300 Waterkeeper organizations worldwide. For more information, go to columbiariverkeeper.org. 

Read more about the Perennial proposal.

Fracked gas is terrible for our health and the environment. The time is up on dirty energy.