UPDATE 6/20/2024 [Update co-authored by Stoel Rives summer associate Connor McRobert]: On May 31, 2024, the Council voted to further revise these proposed rules by adding several more minor proposed changes. The Council has reissued the notice of proposed rulemaking (NOPR) and initiated another public comment period ending July 22, 2024. See Reissued Notice of Proposed Rulemaking here. The newly proposed changes are minor, serving to further clarify language and bring consistency to the rules. Most of the new proposed changes stem from public comments received during the initial public comment period. The reissued NOPR has been submitted to the Secretary of State, and the new public comment period is now open through Monday, July 22, 2024. Comments submitted from the last comment period will be carried over, so only new or revised comments must be submitted. With reissuance of the NOPR, the earliest the Council may adopt these new rules is likely September 2024.

[3/05/2024] The Oregon Energy Facility Siting Council (EFSC or the Council), which oversees the siting of large-scale energy facilities including wind and solar power projects, voted late last month to initiate rulemaking to clarify aspects of its contested case procedures.  A contested case hearing is a culminating step in the EFSC site certification process, a public, contested case hearing administered by a hearings officer.  The hearing generally resembles an administrative trial—evidence is presented, rebutted through cross-examination, and participating parties, including typically the project proponent and any opponents, give a closing argument. The process itself is largely prescriptive but controversy can arise, including with respect to who is allowed to participate in the hearing.

Now, the Council is proposing numerous changes to these rules to better address such issues.  The changes aim to shore up areas of ambiguity, to improve readability, and to update certain provisions for consistency with other related administrative rules.  A summary of the proposed changes is available in the Council’s February meeting  materials, available here under Agenda Item B, and a copy of the proposed rule changes is provided here

Most of the Council’s proposed changes are minor and entail no meaningful substantive change.  For example, the Council proposes to reorder its provisions to more accurately reflect the chronological flow of contested cases and to incorporate language from the generally applicable Oregon model rules for administrative hearings, which will help specify which of those general rules apply in EFSC contested cases.

Among the more significant changes are several that relate to who can participate in contested case hearings.

  • The rules have always imposed a so-called “raise it or waive it” requirement: To have standing to participate in a contested case hearing, a person must have previously raised the issue in a comment in the project record.  But confusion often ensued.  What if someone had commented generally in support or opposition, but did not discuss any specific issues or concerns? And how specifically did an issue need to be raised?
  • The Council proposes to head off these questions by clarifying that a person must have “identified the recommended findings of fact, conclusions of law, or conditions of approval to which they object, specified the Council standard or other applicable state and local requirements on which their objection is based, and presented facts or statements supporting that objection on the record of the draft proposed order” (new language in underline). That specific issue would also need to be expressly raised in a person’s petition for party status.  Reference to an underlying comment is not enough.
  • The changes also slightly expand the opportunity to raise such issues.  Issues supporting standing may now be raised at any point “on the record of the draft proposed order” rather than previously limited to only the “public hearing.”
  • EFSC also proposes a new provision stating that even if a person has been granted only limited party status, e.g., is allowed to participate with respect to only one particular issue, that person may more broadly “address material changes to site certificate conditions that are suggested during the contested case.”  

In short, the proposed changes raise the bar for interested parties to participate in the contested case proceeding by requiring more specificity in comments and in the petition for party status.  But they also slightly expand the opportunities to submit those comments and the scope of a participating party’s involvement if changes are introduced as the case progresses.

The Council’s notice of proposed rulemaking is submitted to the Secretary of State, and a public comment period has been initiated.  If ultimately finalized, the rules should usher in some welcome clarity for project proponents and other contested case participants alike.