370 Or. 792
Or.2023Background
- Idaho Power sought a site certificate from the Oregon Energy Facility Siting Council (EFSC) to build a ~300-mile Boardman-to-Hemingway high-voltage transmission line; ODOE managed the project order and EFSC held a contested case with public comment and hearings.
- BLM completed an EIS and identified a Glass Hill route in Union County as the NEPA “environmentally preferable” alternative; Idaho Power removed Glass Hill from its final application for reasons including landowner and tribal concerns.
- Over 50 commenters sought party status in the contested case; EFSC (via the hearing officer) granted many requestors only limited party status (including Stop B2H and Gilbert); Idaho Power remained the applicant-party of right.
- The project’s corona noise was predicted to exceed DEQ noise rules under certain foul-weather conditions; Idaho Power requested an exception and a variance, which EFSC granted after finding EQC/DEQ had suspended processing such requests.
- EFSC approved the site certificate subject to detailed mitigation, historic-properties management (HPMP) to be approved later by ODOE, visual-impact mitigation, and a General Condition about construction rights; petitioners Stop B2H, McAllister, and Gilbert sought judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Party status (Stop B2H, Gilbert) | Agency had no authority to deny full party status on request; petitioners should be full parties. | APA and EFSC rules authorize agency to limit participation and treat party requests as limited parties to keep proceedings manageable. | EFSC lawfully granted limited-party status and considered required factors; no abuse of discretion. |
| Noise exception / variance (Stop B2H) | EFSC lacked authority to grant exceptions/variances (only DEQ/EQC can); even if it had authority, criteria ("unusual or infrequent") not met. | EFSC may act under the siting act when other agencies have suspended processing; evidence shows exceedances are infrequent (<2% of hours) and weather is beyond applicant control. | EFSC had authority here and substantial evidence supports both the exception and variance. |
| Project-order modification of noise‑sensitive landowner radius (Stop B2H) | ODOE could not change the rule’s one‑mile requirement to one‑half‑mile without rulemaking. | Existing rule expressly permits project-order modifications or waivers for a specific facility. | ODOE lawfully modified that requirement for this facility; no rulemaking required. |
| Visual‑impact methodology (Stop B2H) | Idaho Power’s method failed to account for viewers’ subjective perceptions of significance. | Methodology incorporated BLM and USFS subjective sensitivity/concern criteria; no particular method mandated by rule. | EFSC permissibly used Idaho Power’s methodology; no legal error shown. |
| Inclusion of BLM’s Glass Hill alternative (McAllister) | ORS 469.370(13) required EFSC/Idaho Power to include the NEPA “environmentally preferable” Glass Hill route in the application or order amendment. | ORS 469.370(13) requires coordination and non‑duplication with federal review but does not mandate choosing federal NEPA-preferred alternatives. | EFSC/Idaho Power were not required to include or adopt the NEPA-preferred Glass Hill route; coordination duty does not compel that result. |
| Historic properties mitigation and HPMP delegation (Gilbert) | EFSC failed to document impacts/mitigation; improperly delegated future approval of HPMP to ODOE; improperly relied on federal standards. | EFSC may delegate future review to ODOE under ORS 469.402; final order requires mitigation meeting state standards and ties federal Section 106 mitigation to state requirements. | Delegation authorized; final order specifies impacted resources and mitigation and requires demonstration that any federal mitigation satisfies state standards. |
| General Condition 7 vs. mandatory rule (Gilbert) | EFSC altered a mandatory site‑certificate condition without rulemaking. | EFSC trimmed language to apply to transmission lines but did not substantively change the rule; typographical redline error was harmless. | No substantive change; condition is consistent with the rule and rulemaking was not required. |
Key Cases Cited
- Marbet v. Portland Gen. Elec., 277 Or 447 (Or. 1977) (describing legislature’s centralization of siting authority in EFSC)
- Friends of Columbia Gorge v. Energy Fac. Siting Coun., 368 Or 123 (Or. 2021) (interpreting agency limits on participatory rights in contested cases)
- Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 (Or. 1994) (review standard for agency rule interpretation)
- Teledyne Wah Chang v. Energy Fac. Siting Council, 298 Or 240 (Or. 1984) (limits on EFSC altering the site proposed in the application)
- Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353 (Or. 2005) (standard of review for EFSC final orders)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires process, not particular substantive outcomes)