Holding Perennial WindChaser Accountable for Clean Water Act Violations
On December 28, 2020, Columbia Riverkeeper, represented by law firm Kampmeimer & Knutsen PLLC, filed a complaint in the United States District Court, District of Oregon against Perennial-Windchaser, LLC and its parent company Perennial Power Holdings, Inc for violations of the Clean Water Act. Specifically, the complaint alleges that Perennial illegally started construction work on its fracked gas plant without a construction stormwater permit from the Oregon Department of Environmental Quality. In addition to ensuring no further work occurs without this permit, the lawsuit seeks a court order requiring Perennial to pay civil penalties and remediate the environmental damage and ongoing impacts of its stormwater discharges.
Challenging Oregon’s Decision to Approve Construction of New Fracked Gas Power Plant
On November 2, 2020, 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.
Fracked Gas Polluter Breaks Ground, Breaks the Law
In August 2020, we asked a simple question: will the Oregon Department of Energy (ODOE) allow a new fracked gas developer to flout Oregon law and begin construction for a huge new source of pollution?
In September, we got our answer. Yes. With ODOE’s blessing, backers of the 415 MW Perennial fracked gas power plant near Umatilla, OR, violated the Clean Water Act by beginning construction on a road for the project without a key construction stormwater permit. We have pictures to prove it, pictures of a shabby road in a dusty field for a fracked gas plant that should never be built.
The violation occurred despite a detailed Oregonian article in August highlighting the flaws in ODOE’s approach. Yet, the Perennial fracked gas project barreled ahead and built their road, ignoring Oregon’s rules and breaking the law. They knew we were watching. They did it anyway.
Today Columbia Riverkeeper filed a 60-day notice to sue under the Clean Water Act. But going to court isn’t enough. Oregon’s climate future is on the line. The Perennial fracked gas plant would produce roughly 1 million tons of climate-changing pollution each year, putting it in the top five or six of Oregon’s greenhouse gas polluters.
Join us (LINK) in urging Governor Brown to step in and stop Oregon EFSC from bending Oregon’s rules on behalf of a major new climate polluter in our state.
For more information and background on this controversy, check out our more in-depth description here.
Will Oregon’s Energy Council Allow a Fracked Gas Developer to Game the System?
A Columbia Riverkeeper investigation uncovered a fracked-gas company attempting to avoid Oregon’s hefty fee on carbon pollution for new power plants. In August 2020, the Oregon Energy Facility Siting Council (EFSC) staff quietly gave the go-ahead for the Perennial Wind Chaser development to begin construction on a road to a 415 MW, gas-fired power plant near Umatilla, OR.
If built, Perennial would quickly become one of Oregon’s top five or six polluters, generating roughly 1 million tons of carbon pollution each year. By spending $250,000 on a road or other parts of the facility, Perennial would officially “begin construction” of the facility—and avoid the state’s new carbon fees.
Check out The Oregonian’s in-depth story, featuring Riverkeeper’s conservation director, Dan Serres.
The Details: Perennial’s sudden move to begin construction—and EFSC staff’s cooperation—would allow a major new climate polluter to avoid Oregon’s hefty fees on climate pollution. Here’s why EFSC must change course:
- The proposed Perennial fracked gas power plant does not have a permit from the Oregon Dept. of Environmental Quality (DEQ). In 2019, EFSC stated, "Perennial would not be able to commence facility construction without a valid DEQ permit” when it granted Perennial an extension on its deadline to begin construction until September 23, 2020. EFSC appears to be reneging on this clear-cut commitment by allowing construction to begin. Additionally, DEQ may never grant a permit for this large potential source of greenhouse gas pollution, creating the possibility of a “road to nowhere.” This is why Oregon's rules prohibit construction on one part of a facility (a road) until a developer has construction rights on all parts of the facility (such as the DEQ permit for the power plant itself).
- The plant does not have a power purchaser. Why start construction with no entity to sell power to?
- Perennial has not completed major pre-construction requirements. In May 2020, Perennial informed EFSC that it had been unable to complete necessary pre-construction surveys. And there are numerous other requirements that Perennial has apparently failed to meet, yet EFSC is poised to allow a “Phase 1” of construction, in clear conflict with the requirements of EFSC’s rules. Additionally, EFSC never described a “Phase 1” when it granted a site certificate for Perennial. However, it did state that Perennial must satisfy many conditions before construction could begin—and those conditions haven’t been fulfilled.
- DEQ paused its review of the Perennial project because Perennial may be drastically redesigning the power plant. Why start construction if plans—and permits—are still up in the air?