Umatilla County v. Dept. of Energy

“For an energy facility or a related or supporting facility that must be evaluated against the applicable substantive criteria pursuant to subsection (5) of this section, that the proposed facility does not comply with one or more of the applicable substantive criteria but does otherwise comply with the applicable statewide planning goals, or that an exception to any applicable statewide planning goal is justified under subsection (2) of this section”. ORS 469.504(1)(b)(B).

Plaintiff requested judicial review of the final order from the Energy Facility Siting Council (“DOE”) granting Nolin Hills Wind, LLC site certificate to construct a wind energy facility in Umatilla Co. Plaintiff argued (1) the DOE erred in concluding that Plaintiff’s recommended criteria was not among the applicable substantive criteria and not required by statewide planning goals; (2) that the DOE erred in concluding the proposed facility passed through more than three land use zones; (3) that because of errors one and two DOE should have reviewed the application under Track 2 of ORS 469.504(5), not under ORS 469.504(1)(b); and (4) that the DOE erred in concluding the application complied with the statewide planning goals. DOE responded that even in Track 2 of ORS 469.504(5) applied, they were still allowed to approve the application under ORS 469.504(1)(b)(B). “The proposed facility must be found in compliance with statewide planning goals if the council determines that: … (B) For an energy facility or a related or supporting facility that must be evaluated against the applicable substantive criteria pursuant to subsection (5) of this section, that the proposed facility does not comply with one or more of the applicable substantive criteria but does otherwise comply with the applicable statewide planning goals, or that an exception to any applicable statewide planning goal is justified under subsection (2) of this section”. ORS 469.504(1)(b)(B). The Court reasoned that the ORS provision does not require the proposed facility to comply with all locally recommended substantive criteria because the legislative history shows an interpretation that compliance with the statewide goals is enough for approval. The Court further reasoned that an application can be approved even if it does not meet the statewide goals if the DOE determines and exception is justified. Therefore, the final order of the Energy Facility Siting Council is affirmed.