On Wednesday — exactly one year after they filed an appeal against the Oregon Energy Facility Siting Council (EFSC) and the Oregon Department of Energy (ODOE) — a coalition of nine conservation agencies, led by Friends of the Columbia Gorge, appeared before the Oregon Supreme Court.
In addition to Friends of the Columbia Gorge, the coalition includes: The Hood River Valley Residents Committee (recently renamed “Thrive Hood River”), the Northwest Environmental Defense Center, Oregon Wild, Greater Hells Canyon Council, the Oregon Natural Desert Association, Wildlands Defense, the Oregon Coast Alliance and Columbia Riverkeeper.
The coalition is challenging the validity several rule changes that EFSC and ODOE adopted in October 2017 — rules that, the coalition claims, “dramatically curtain transparency and public participation in permitting decisions for large power plants throughout Oregon,” said a December 2017 press release.
“In adopting these new rules, EFSC disregarded extensive public comments calling for more transparency and public participation opportunities,” said the 2017 press release.
The rules in question pertain to EFSC and ODOE’s process for amending an energy site certificate, “a permit that is given for the construction and operation of … large-scale energy facilities,” said Gary Kahn, attorney representing the coalition, during his opening oral argument to the supreme court on Wednesday.
The changes revised the procedure for large energy projects to be modified after they’ve already received EFSC approval — setting up a two-track system for evaluating amendments to allow simpler cases to be resolved quicker.
Cases that require an amendment of the site certificate itself now go down the standard “Type A” review process, which is very similar to the established process and includes a public hearing; while simpler cases are moved to the newly-created “Type B” process, which does not include a public hearing and requires a decision to be issued “as promptly as possible.”
“We have two goals here,” said Denise Fjordbeck, attorney representing EFSC and ODE, of the rule changes during her rebuttal. “We want to have a process that proceeds quickly for simple amendments … and they want to have a greater level of public involvement …”
She said that those two goals were accomplished, and not only that, the new process urges early public participation while also providing opportunities for the public to engage later on.
Kahn agreed in his opening argument that the defendants went in with those two goals, but said, “Unfortunately, the result did not — in our opinions — achieve their goals; in fact, in some cases it was the opposite: They lessened the opportunity for public involvement, they lessened the opportunity for judicial review, and the process they used with the four different revisions … made it practically impossible for the public to even realize that they were losing public participation rights.”
The supreme court is considering five total arguments that the rules are invalid — three procedural and two substantive:
They failed to provide public copies of the proposed rules they were going to adopt, showing all changes made to the current rules
They failed to provide a statement identifying how the rules will accomplish the rulemaking goals
They failed to respond to comments regarding other options to achieve the rulemaking goals
The newly created “Type B” review process unlawfully delegates the EFSC’s decision-making authority to ODOE staff
The rules unlawfully restrict judicial review procedures for appeals of EFSC decisions
Regarding the procedural arguments, Fjordbeck argued that the defendants weren’t legally required to follow those specific procedures.
Regarding the two substantive arguments, she said, “They (the new rules) may be somewhat subjective … the thing you need to remember is that EFSC is overseeing the entire process the entire time … The ultimate decision is always going to lie with EFSC.”
However, one of the coalition’s arguments against the Type B process is that it gets rid of the opportunity for a contested case — where state agencies have to confirm that the decision makers are making decisions with the most complete and relevant information available, usually done when someone has a significant interest in the case.
“Under state energy siting statutes, a contested case is always required for site certificates, but not always required for amendments to site certificates,” said Nathan Baker, senior staff attorney for Friends of the Columbia Gorge.
“The new rules delegate to ODOE staff the authority to determine which proposed amendments will be reviewed in contested cases, and which will not. (We are) arguing that this delegation is unlawful because only EFSC, not ODOE, has the power to make such determinations.”
When directly asked by Justice Meagan Flynn, Fjordbeck said, “Within the Type B process, there is no opportunity to request a contested case, explicitly;” she added that people could ask for a contested case, but because it’s a Type B case, it would likely be denied; and that EFSC can choose to move a Type B over to Type A.
The court will issue a decision in the coming weeks or months, Baker said. While there is no specific deadline for a decision, state law (ORS 469.490) requires the supreme court to “give priority on its docket” to appeals challenging EFSC rules.
“We are hopeful that the supreme court will invalidate the challenged rules, which would be a big victory for transparency and citizen involvement in energy permitting decisions throughout the State of Oregon,” Baker said.
This case coincides with Gov. Kate Brown’s recently announced proposal to dismantle ODOE and EFSC in favor of “a new Oregon Climate Authority that could oversee a carbon pricing system lawmakers will take up this session,” OPB reported on Nov. 28.
This idea is still in early development, and officials say it will be at least another six months until there are more solid plans.
“A new Oregon Climate Authority would bring dedicated experts together in a new agency that focuses on climate, energy, reducing GHG emissions, and more,” ODOE posted on its Twitter page, “Much of what we do would transition to the new agency.”