Oregon Supreme Court Says the State Improperly Shut the Public Out of Deciding Where to Place Energy Facilities

The Oregon Supreme Court this week made it harder for energy companies to site facilities where opponents don't want them—including, possibly, a long-proposed wind farm along the Deschutes River near the Columbia Gorge.

As the state continues its transition away from fossil fuels, the siting of energy facilities will likely be increasingly contentious and so the decision provides  important leverage for the public.

The court ruled in favor of nine conservation groups who argued that the state agency responsible for issuing permits for large energy facilities such as wind farms and natural gas generating plants had, through a 2017 rule change, improperly choked off public participation, including the right of those potentially harmed by the projects to seek judicial review.

"The rules approved by the Energy Facility Siting Council…are invalid," wrote Justice Thomas Balmer.

Conservation groups cheered the court's finding.

"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 in a statement. "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."

At issue was a 2017 rule change the state Energy Facility Siting Council, a seven-member board appointed by the governor, made to streamline the adoption of amendments to site permits.

The court agreed with the conservation groups' argument that the agency neglected to include a mechanism for evaluating whether the new process was effective and more importantly, the court found, the new rules did not include an opportunity for people or groups negatively affected by a project to seek legal review.

Friends of the Columbia Gorge said in a statement that the ruling is likely to affect two projects: a wind farm along the Deschutes River and a natural gas-powered electrical generating plant in Umatilla County, both of which the group says benefited from the 2017 rule change the court now says was improper.

"As a result of today's ruling, the permission to build two specific projects has now expired," Friends said. "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."