Energy Department and council under fire for cutting out public 

Their complaints have caught lawmakers’ ears. A bipartisan committee that met last year to consider restructuring or dissolving the Energy Department contemplated a variety of changes to improve transparency and public input in the siting process. But the committee was dissolved before reaching a consensus on recommendations.

Sen Alan Olsen, R-Canby, is now chairing a workgroup to address those concerns.

“We all know the DOE is a mess, and it has been for years,’ he said. “We want to go over the entire process of the Energy Facility Siting Council, and hopefully come up with some legislation for 2019 that will make the dang thing work for everyone involved.”

The siting process has been controversial for years. For one, conservation groups say the council and the Department of Energy have consistently allowed developers and utilities to expedite regulatory reviews by categorizing major new facilities as amendments to existing site certificates.

The council and Energy Department staffers have allowed developers to build big windfarms and a pipeline as amendments to existing site certificates. Likewise, Portland General Electric applied to build two new gas-fired power plants in Boardman as an amendment to its existing site certificate there rather than applying for a new one.

A new site certificate requires more information, a more exhaustive analysis, and automatically affords anyone who comments on the application the opportunity to contest the council’s decision before a hearings officer, albeit one hired by the Energy Department.

Moreover, critics say, the council and Energy Department routinely deny public requests to contest the council’s amendment decisions.

Irene Gilbert, a La Grande resident and researcher for the Friends of the Grande Ronde Valley, has opposed numerous windfarms in Eastern Oregon based on their impacts on wildlife, wetlands, noise levels, and their visibility from towns or areas designated as wild and scenic. She says the council, at the recommendation of the Energy Department, has denied every one of her requests for a contested case. By her count, the council has rejected more than 80 requests for contested cases and not granted a single one.

The Energy Department has very different numbers. A spokeswoman said that as of 2014, the department had received only 26 contested case requests on 75 separate amendments. The department also said it had granted one contested case request in the late nineties.

Gilbert insists her tallies are correct, and says the only recourse is to request a review by the Oregon Supreme Court. But that’s a Catch 22. Without being granted contested case, there’s no case record for the court to review, she said.

“They control the whole process, and their determination over and over again is no significant impact,” she said. “They get paid by the applicants. They bill for every hour of work on an application, then charge developers to monitor projects. So, in effect, they’re working for the applicant.”

In September, she requested that Secretary of State Dennis Richardson undertake a formal investigation of the Energy Department’ siting division.

“There is a constant and escalating overreach and abuse of power focused on accommodating developers,” she wrote in her request. “I have watched this agency move from bad to unbelievable over the past eight years. I am convinced that it will require legislative action to convince these people that they actually have to follow the statutes given the culture of the department which places the wishes of developers over the people and resources of the state.”

The new rules are almost a complete rewrite of the previous ones and provide for three types of reviews, without standard criteria for determining which one applies.

The first is for complex projects, and grants an automatic public hearing. But it eliminates an early public comment period before Energy Department staff issues a draft proposed order. Critics say that removes the opportunity to identify and resolve problems early in the process, and would potentially result in one-sided proposed orders that only consider the applicant’s positions and not the public’s.

The first process allows the public to request a contested case, the groups say, but limits who can make those requests and how.

The second is for less complicated amendments and eliminates public hearings or the opportunity for the public to contest the council’s decision altogether. The groups worry that applicants will use that process for streamlined reviews of their projects, and that Energy Department staff has the discretion to determine which process applies.

The third process is for “emergency” situations, and allows the council to issue a temporarily amended site certificate, allowing the developer to move forward, then go back and start the standard or expedited process. Public involvement, in this instance, only comes after the fact.

Cornett said none of the conservation groups has expressed concerns based on real experience. The council has only received one amendment request since adopting the news rules and it was under the standard process.

“Is it working for the public or for the site certificate holder?” he asked. “We’ll have that information in a year or two, whether these new rules are working or not.”

The conservation groups and others say they already know the answer.

“We think this is a huge step backward, otherwise we would not be challenging it,” said Dan Serres, conservation director for Columbia Riverkeeper. “I know there’s a new leader at DOE. Maybe this is an opportunity for the department and the council to dig a little deeper into the siting process. That’s certainly what we’re hoping for.”