Oregon Supreme Court Declares Energy Facility Siting Council Rules Limiting Public Participation Invalid
In a major win for government transparency, Columbia Riverkeeper and our partners prevailed in a lawsuit filed against Oregon’s Energy Facility Siting Council (EFSC). The Oregon Supreme Court’s decision invalidated several EFSC rules that would have significantly limited the public’s ability to fully participate in contested case hearings–an administrative process that allows concerned members of the public to challenge a specific EFSC order. The Court also made clear that EFSC must formally amend a project’s site certificate if a facility will be built or operated in a way that deviates from the description in its site certificate. The Court’s decision on this point bolsters Columbia Riverkeeper’s case against the Oregon Department of Energy for its decision to allow Perennial WindChaser to construct its fracked gas-fired power plant in “phases,” against the terms of its site certificate.
This decision sends a powerful message to EFSC that it cannot limit the rights of the public to fully participate in challenges to its siting decisions,” says Erin Saylor, Staff Attorney with Columbia Riverkeeper. “It also resoundingly confirms that energy department staff cannot make changes to site certificates behind closed doors and without EFSC approval.
A site certificate is a formal contract between an energy developer and the State of Oregon— which acts through the Energy Facility Siting Council—that governs how an energy facility will be designed, constructed, and operated. Check out more about the siting process here.
Generally, anytime an approved energy facility proposes to change something about the way the facility is designed, constructed, or operated, the company must apply to EFSC for an amendment to its site certificate. The amendment process is a formal process that includes an opportunity for the public to review the application and provide comments. Concerned members of the public also have a right to request what is called a Contested Case should they disagree with EFSC’s ultimate decision on the amendment request.
This victory has been long in the making.
In October 2017, EFSC adopted new rules that drastically changed the amendment request process. Riverkeeper and our partners challenged those rules in court, arguing that EFSC’s revised rules exceeded its authority and that EFSC failed to follow the proper procedural process when it adopted those rules. In response to our concerns, the Oregon Supreme Court invalidated EFSC’s rules. However, In January 2020, EFSC issued its revised rules—rules that significantly, and illegally, limited the scope of public participation in contested case hearings. Specifically, Oregon law requires that parties to a contested case be given the opportunity to respond to all the issues raised in contested case proceeding—not just the issues that person raised themself. EFSC’s permanent rules, however, directly conflicted with that mandate by limiting a person’s participation in contested case hearings to only those issues that person raised themself in their contested case request—in other words, they would be prohibited from responding to all other issues raised in the case. The Supreme Court’s decision last week invalidated this rule; holding that “the challenged rules can be read in only one way—as restricting the participatory rights of all parties, in a manner not allowed by the [Administrative Procedures Act].”
Additionally, in its permanent rules EFSC permitted site certificate holders to expand the boundaries of a site without a site certificate amendment. The Supreme Court agreed with Riverkeeper and our partners that this rule violates state law because it exceeds EFSC’s authority.
And it gets better.
The Oregon Supreme Court victory supports Riverkeeper’s legal arguments in a case against the Oregon Dept. of Energy and Perennial WindChaser. The department allowed Perennial to construct its fracked-gas fired power plant in “phases” and waived many of the pre-construction requirements. However, Perennial’s site certificate does not allow for phased construction. The Oregon Supreme Court’s decision supports our argument that the department exceeded its authority and a site certificate amendment was required.
We look forward to more victories for open government.
Gary Kahn of Reeves, Khan, Hennessy & Elkins represents Columbia Riverkeeper and its partners in this legal action.
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