446 P.3d 53
Or.2019Background
- The Energy Facility Siting Council (EFSC) adopted comprehensive revisions (division 27, OAR ch. 345) to the rules governing amendments to site certificates; revisions finalized October 24, 2017.
- The rulemaking proceeded in three draft iterations between January and October 2017, with multiple notices, hearings, comment periods, and redlined drafts comparing successive drafts (but not always comparing each draft to the existing rules).
- The revised rules created three review tracks for requests for amendment (RFA): type A (standard, hearing available, contested case possible), type B (expedited, written comment only, no contested case), and type C (very expedited for narrow changes). Staff was given initial authority to assign many RFAs to type B or C, with limited council review.
- Petitioners challenged the rules under ORS 469.490, arguing (1) EFSC violated APA rulemaking procedures (ORS 183.335) and (2) several rules exceeded EFSC's statutory authority (ORS 469.405 and ORS 469.403).
- The Court reviewed procedural compliance under the substantial-compliance standard and examined three procedural claims: (a) failure to respond to suggested alternatives under ORS 183.335(3)(e)(C), (b) failure to provide redlined proposed-rule copies under ORS 183.335(2)(d), and (c) failure to provide a statement of how the agency would measure rule success under ORS 183.335(3)(d).
- The Court also addressed substantive challenges: (i) whether delegating to staff authority to select expedited tracks unlawfully delegated nondelegable powers; and (ii) whether rule provisions improperly limited judicial review of RFAs that did not go through contested case proceedings.
Issues
| Issue | Petitioners' Argument | EFSC's Argument | Held |
|---|---|---|---|
| Whether EFSC violated ORS 183.335(3)(e)(C) by failing to respond to comments recommending alternatives | Petitioners: EFSC must respond to comments about alternative options; omission invalidates rules | EFSC: (3)(e)(C) imposes only a recordkeeping duty to maintain any agency response if one exists; no obligation to create a response | Court: Held for EFSC — (3)(e)(C) is a recordkeeping requirement only, not a duty to craft responses |
| Whether EFSC violated ORS 183.335(2)(d) by failing to provide timely redlined copies showing all changes with each notice | Petitioners: Each subsequent notice triggered (2)(d)’s redline requirement; failure to show changes compared to existing rules invalidates rulemaking | EFSC: January 2017 notice (with redline) satisfied (1)(c) and (2)(d); later notices were not new (1)(c) notices requiring fresh redlines | Court: Held for EFSC — only initial required (1)(c) notice needed the redline; later iterative notices did not automatically re-trigger (2)(d) |
| Whether EFSC violated ORS 183.335(3)(d) by failing to provide a statement of how it would measure whether the rules achieved their objectives | Petitioners: EFSC failed to provide a written, retrievable statement describing how success would be measured | EFSC: Oral discussion at hearings sufficed; staff would monitor and report back | Court: Held for Petitioners — EFSC failed substantial compliance; no written, storable statement decided or produced, so statutory requirement unmet; rules invalid on procedural ground |
| Whether rules exceed EFSC statutory authority by (a) delegating to staff authority to foreclose hearings/contested cases and (b) restricting judicial review for noncontested RFAs | Petitioners: Staff discretion effectively removes public hearing/contested-case rights; rules bar otherwise aggrieved persons from judicial review if they didn’t comment | EFSC: Statutes give limited direction on amendments; legislature allowed EFSC to set amendment process; staff assignment to expedited tracks is permissible; narrower review fits statutory scheme | Court: (a) Delegation: Held for EFSC — statutes permit EFSC to set procedure and staff may initially assign type A/B; final amendment approval remains with council. (b) Judicial review: Held for Petitioners — rules that limit review to commenters and to issues raised in comments exceed statutory authority and are invalid |
Key Cases Cited
- Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or. 132, 881 P.2d 119 (1994) (applied substantial-compliance standard to ORS 183.335 challenges)
- Brown v. Portland School Dist. #1, 291 Or. 77, 628 P.2d 1183 (1981) (discusses purpose of substantial compliance doctrine for notice provisions)
- Bassett v. Fish & Wildlife Comm'n, 27 Or. App. 639, 556 P.2d 1382 (1976) (explains that iterative changes during rulemaking do not necessarily require new notice/hearing for every revision)