456 P.3d 635
Or.2020Background
- The Energy Facility Siting Council (EFSC) issued 2018 rules replacing 2017 rules governing requests for amendment (RFAs) to site certificates; this court later held the 2018 rules invalid in Friends of Columbia Gorge (2019).
- Before that appellate judgment took effect, EFSC adopted nearly identical 2019 temporary rules (effective Aug 22, 2019) with two substantive changes: (1) conforming judicial-review provisions and (2) an applicability clause applying the 2019 rules to new RFAs and to pending RFAs submitted on or after Oct 24, 2017 without requiring resubmission.
- Petitioners challenged the 2019 temporary rules on two main grounds: (a) EFSC failed to prepare an adequate statement of findings showing that failure to act promptly would cause "serious prejudice" (ORS 183.335(5)(a)); and (b) the rules unlawfully exceed the 180-day limit for temporary rules or operate retroactively (applicability back to Oct 24, 2017).
- EFSC defended the temporary rules by identifying concrete harms to certificate holders (costs, delays, possible certificate expirations) and argued the rules became effective only when adopted on Aug 22, 2019. EFSC also initiated permanent-rulemaking to replace the temporary rules.
- The Oregon Supreme Court reviewed the sufficiency of EFSC’s statement of serious prejudice, the proper standard of judicial review for such statements, and whether the applicability provision or reuse of prior rule text rendered the temporary rules invalid; the court upheld the 2019 temporary rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the statement of serious prejudice required by ORS 183.335(5)(a) | EFSC’s statement was inadequate and did not show serious prejudice to justify bypassing notice/comment. | The statement need only show that EFSC perceived serious prejudice and need not be substantively reviewed. | Court: Courts must review substance of the statement; EFSC’s statement identified concrete, serious prejudice (costs, delays, potential expirations) and was sufficient. |
| Standard of judicial review for statements of serious prejudice | (Implicit) apply a deferential "perception" standard similar to statement-of-need precedent. | Apply deferential review. | Court: Rejects purely perception-only standard; courts must review both detail and substance to ensure temporary-rule exception is justified. |
| Applicability clause (OAR 345-027-0311(1)) alleged retroactivity/exceeding 180-day limit | The clause reaches back to Oct 24, 2017 and thus makes the temporary rule effective for more than 180 days. | The provision was adopted and became effective on Aug 22, 2019; retroactive legal consequences do not make the rule "effective" earlier. | Court: Adoption date controls; the rule became effective Aug 22, 2019 and did not violate the 180-day limit; no categorical bar to rules affecting prior actions. |
| Reuse of prior rule text and validation of actions taken under invalid rules | Repeating 2018 text in 2019 temporary rules improperly legitimizes prior actions and should be treated as continuous rulemaking. | Agencies may adopt temporary rules that reuse prior text; nothing prohibits later rules from validating or addressing actions under earlier rules. | Court: No legal basis to treat the two rule sets as one or to prohibit reuse; 2019 rules are separate and validly effective on adoption date. |
Key Cases Cited
- Friends of the Columbia Gorge v. Energy Facility Siting Council, 365 Or. 371 (2019) (prior decision invalidating EFSC’s 2018 RFA rules and framing subsequent issues)
- Fremont Lumber Co. v. Energy Facility Siting Council, 325 Or. 256 (1997) (explains limits and purposes of rulemaking statement requirements)
- Gooderham v. AFSD, 64 Or. App. 104 (1983) (applies multifactor balancing when assessing retroactive effects of rule changes)
- Waterwatch of Oregon v. Oregon Water Resources Comm’n, 97 Or. App. 1 (1989) (rejects agency’s stated grounds for temporary rulemaking)