Understanding the New Landscape for Energy Developers

The Oregon Energy Facility Siting Council (EFSC) has introduced rule changes to clarify the contested case procedures for large-scale energy project approvals. Contested cases are similar to administrative trials and are one of the final steps in the EFSC site certification process. EFSC’s rule changes, effective October 1, 2024, aim to enhance clarity, improve public participation, and streamline procedural efficiency. Generally, the changes require more precision in project objections but allow for a broader timeframe in which objections may be made. For energy developers, including developers of solar and wind facilities, understanding these updates will be crucial in navigating the contested case process.

Key Changes and Their Implications:

Objection Specificity and Party Status

One of the most notable updates to EFSC’s contested case procedures is the inclusion of specific requirements for objections raised during the project approval process and obtaining party status. Project opponents must now identify the recommended findings of fact, conclusions of law, or conditions of approval to which they object in their petition for party status rather than via reference to an underlying comment. Additionally, opponents must state the EFSC standard or other applicable state and local requirements on which their objection is based and include factual support buttressing their objections. A more structured objection process provides clarity and also presents an opportunity for developers to anticipate and address potential objections by engaging with stakeholders early and often to address their concerns. 

Expansion of Issue-Raising Opportunities

EFSC has also expanded opportunities for project opponents to raise issues, allowing them to do so at any point “on the record of the draft proposed order,” rather than being restricted to only the “public hearing.” Thus, developers should consider being ready to field objections at any point in the project lifecycle rather than just at a formal hearing, which may be facilitated by ongoing engagement with stakeholders and a robust documentation process.

Limitation on Interlocutory Appeals

To reduce procedural delays, EFSC has limited certain interlocutory appeals, i.e., appeals made before EFSC’s final decision on the application. Now, a project opponent may only file an interlocutory appeal if all of its contested issues are rejected rather than just one or several issues. In this way, the rule change seeks to limit less complete interlocutory appeals where the reversal rate is low, but it preserves a pathway for project opponents who are denied party status on all issues.

Steps Forward for Energy Developers

EFSC’s rule revisions present both challenges and opportunities for energy developers. By understanding and adapting to these changes, developers can better position themselves to succeed in the siting process. For those seeking further guidance, engaging with legal experts and utilizing the resources provided by the Oregon Department of Energy is recommended. The path to successful energy development in Oregon remains clear but requires careful navigation and strategic planning.

This article summarizes aspects of the law and opinions that are solely those of the authors. This article does not constitute legal advice. For legal advice for your situation, you should contact an attorney.