Energy Developments are coming to a town like yours! Be Ready

Guest Blog from Fuij Kreider, co-founder and board member of the Stop B2H Coalition

As most of you know by now, Stop B2H (STOP as we are also called), lost the “David and Goliath” battle to stop the destructive Boardman to Hemingway (B2H) 300 mile, 500kV transmission project. While there are still many watchdog tasks and opportunities, to ensure that our environmental and cultural resources are protected, the project itself is positioned to receive all permits necessary—probably by 2024. Then, construction can begin. Unfortunately, this is not as unique a issue as we'd all wish so I’d like to share “5 things you need to know about siting power lines in Oregon, right now!” so you can be prepared for what might be coming to your community.

Learning #1: Energy Facility Siting Committee (EFSC) has never denied an energy facility; they exist to site facilities!

It is misleading to assume that the Oregon’s Department of Energy (ODOE) and their Siting Council (Energy Facility Siting Committee or EFSC)*(see annotations below) will review applications and make decisions—thumbs up or down—for the siting of an energy project in Oregon. We learned differently--they exist to site projects!

As reflected in their title, they are a siting council! It’s not about approving or denying; it’s all about working with the developer/utility, in an iterative or corrective process, until they “get it right” and meet the state’s minimum standards.** If a developer’s application for a “site certificate” is in jeopardy or having trouble, the ODOE staff will work with them until they can comply. When they can comply with all standards, ODOE calls the application “complete,” and the next phase of the public process (public comment and hearings) can go forward. If not, they (developer and ODOE staff) continue to work together -- morphing the project and creating draft mitigation plans until they can meet the standard.*** If it becomes too expensive or arduous, the developers will drop out or suspend their application’s review.

Idaho Power’s rendition of the viewshed from the National Historic Oregon Trail Interpretive Center (NHOTIC). The mitigation plan: painted lower towers (130-150’ rather than 180’). The existing wooden towers are 85’. Notice the size differences in the towers in the photos above at the NHOTIC. This photo is from the museum site (about a mile)—not at Panorama Point overlook which is 150’ away from a tower to the right, outside of the image. EFSC determined that there would be “no significant visual impact” due to mitigation--(Learning #2).

Learning #2: Site Certificates are granted before Mitigation plans are complete.

Given the above (#1), you see why a project is never denied. From our experience, whether the mitigation will actually be an improvement doesn’t appear to matter in the review. There is an assumption that mitigation can be done and that it will protect resources. But the mitigation plans are not finalized until the project is approved and the site certificate is issued. Yes, you have that right: they get a site certificate BEFORE all mitigation is worked out.

This points to a key question: are mitigation plans ever completed, reviewed, and how would we know? After the site certificate is approved, the utility needs to firm-up mitigation plans and get approvals from other state agencies or counties – all of which is out of the public’s eye! No public process. ODOE staff – not EFSC -- will simply say it complies or they keep working on it. This is important for two reasons: 1) it is completely staff driven and decided without oversight; and 2) all “standards” have a condition statement that says: “...with mitigation will comply.” Meaning: it will meet the minimum requirements for compliance due to its mitigation plan - even if the plan is not fully baked!

Learning #3: Regulatory Catch-22

Agencies like to use each other as experts for their own jurisdictional reviews; it then becomes a vicious closed cycle or catch-22. Similarly, the lack of congruence between state agencies, and between state and federal agencies, leaves the public hanging-out to dry. For example:

Incongruence among state agencies: In the ODOE/EFSC standards, it says that if the Oregon Public Utility Commission (OPUC)**** “acknowledges” a utility’s energy plan, that acknowledgement will satisfy the EFSC standard for “need” for the project. However, at the OPUC, they state that their review and acknowledgement of utility plans are iterative and NOT an approval of a specific project. So, while EFSC determined that the ‘Need Standard’ was met under their rules, the OPUC continues every two-years to review utility energy plans, and “acknowledge” (not approve) or modify certain “action plans.”

Incongruence between state and federal agencies: ODOE/EFSC will make decisions for siting energy projects on state and private lands, and federal agencies decide on federal lands. Contrary to the federal NEPA/EIS (formal environmental assessment) processes whereby a “reasonable range of alternatives” including a No Action alternative must be analyzed, the state (ODOE/EFSC) is: 1) not required to adopt or align with the federal reviews, like an Environmental Impact Statement (EIS); and 2) they do not review any alternatives if they are not presented in the utility’s application. They only review the application before them.

In the case of the B2H, this resulted in multiple approved routes and the developer (Idaho Power) choosing whichever one they want. There is no requirement that they pick the best route or the environmentally preferred route. When ‘alignment and compliance with federal decisions’ were raised, EFSC said it was not in their jurisdiction and so they “could not evaluate.”

Once again, if it is not in the proposed application, ODOE/EFSC cannot/will not evaluate it. This was the case when STOP demanded a feasibility study for under-grounding the line in front of the National Historic Oregon Trail Interpretive Center. Idaho Power (IPC) said they did not propose undergrounding so it did not need to be studied.

Union County’s experience (see map right) with this Catch-22 conundrum resulted in one NEPA/BLM approved route (light blue), and two EFSC approved routes (dark blue), causing neighbors to point fingers at the other neighbor’s land (a terrible situation to put people and a community through). This was one of the issues that was taken to the Oregon Supreme Court, which ruled that it was the developer’s choice to pick any route(s) approved by EFSC and that they did not need to align with the NEPA routing or collaborate with federal findings. They could but they do not have too.

This decision essentially destroyed a scenic, tranquil, local park, Morgan Lake, that is beloved by thousands of local people and an essential habitat for all the wildlife that nest and enjoy the sanctuary of the two lakes—one a special wetland.

Photo: Morgan Lake

Learning #4: Rulemaking Matters!

Rules are made by the developers, for the developers! Specifically, their lobbyists and attorneys, are always in the room, fully engaged, and prepared. There were times that STOP was involved in 4 rulemaking proceedings (or dockets) at the same time. As a group of regular citizens we often did not have the time or bandwidth to give it justice -- but we continued to show up. Or better said, we wouldn’t dare NOT show up, because too often we were the only public at the meetings, workshops, and hearings.

Every rulemaking we encountered was drafted in such a way that the interests of the developers are on top—not the public’s. Any holes in the rules or places that might favor the public or natural environment’s interests, is plugged by the developers’ attorneys. And, they all support each other too. No surprises. Just as environmental and conservation organizations collaborate and support each other, the developers do the same. In these situations, as in so many public processes, the grassroots are always “out-gunned.”

We found it interesting that many agency staff involved in rulemaking, actually want the public involved. We can provide them “cover” so to speak, because we have learned that many times the staff agree with us. However, they are running a process and (appropriately) need to listen and address all interests as objectively as possible. Unfortunately, too often the developers win because we just don’t have the clout or enough public voices weighing-in on the nitty-gritty of the rules. It’s tough and somewhat boring, especially since we are all volunteers, but it’s SO important.

If there is an overall learning, this is it: Rulemaking Matters! All groups and activists should do their absolute best to engage and influence rulemaking proceedings.

Learning #5: When it comes to ODOE/EFSC, your Conservation Lands may not be Protected.

One of the rulemaking processes that we participated in (as did GHCC) was the rules/standards for Protected Areas. This rule was in dire need for updating. The rule stated that if the property wasn’t listed specifically, by name--or designated as such by 2007 (16 years ago)--it was not protected from energy developments, especially powerlines and pipelines.

A diverse and large group of organizations started with the process, which was a great start! But then, the process stopped during covid. It was extremely complicated because “Scenic resources and Recreation areas” were also included in the rule amendments. People lost interest but of course the big developers stayed with the process (over 2 years!). In the end, there were some wins but also big losses.

One of the biggest losses is that “Land Conservation Easements and Trusts” are NOT a category of protection under the new ODOE/EFSC rules for Protected Areas OAR 345-022-0040. EFSC was swayed by the developers who whined about too many private land trusts to catalogue, and that they were easy to acquire and potentially a ruse to prevent development.

Bottom line: We recommend that all conservation easements apply for another one of the state designation classifications to better secure the protection.*****

Unfortunately, a newly designated state natural area in Union County, “Glass State Natural Area,” would have been protected according to the definition, because it is recognized as such by the Oregon Department of Parks and Recreation, but the developers also won a condition about when the rules take effect. Similar to a “goal-post rule;” the date that the developer applies for a permit will lock-in all rules at that point in time. Whereas other rules are effective at the date of adoption.

“No moving the goal post.” Sounds reasonable as the developers want more certainty, however if an application takes almost two decades to approve (like the B2H), or there are new protected areas, or endangered species or some other change, we should not have this goal-post rule constraint. We lost that one too.

Photos: Winn Meadow: rare and threatened plants (Douglas Clover) and water resources. Glass State Natural Area, Union County (a protected area as of 2019.)

There are additional learnings to share with folks who will be protecting special places from intrusive energy developments that are permitted by the State of Oregon (ODOE/EFSC). STOP has been involved in the entire EFSC process – from notice of intent, through all public hearings and comment periods, two contested cases at two state agencies, and all the way to the Oregon Supreme Court. We intend to share this information and provide “Tips” (not legal advice) to others as they soldier-on with the EFSC processes. I would be happy to answer any inquiries about our experiences with EFSC (or the B2H project) via email. And if you would like a copy of our “tool kit” for non-profits facing EFSC, once published this fall, send me an email at fuji@stopb2h.org.

Stay strong and fight for your communities!

--Fuij Kreider, co-founder and board member of the Stop B2H Coalition

Annotations:

*ODOE = Oregon Department of Energy. ODOE is a state agency or department. They analyze/review applications for most energy facilities in the state and they provide staffing and recommendations to “the Council” (aka Energy Facility Siting Committee or EFSC). The governor appoints seven volunteers with little knowledge of state regulations or utilities to EFSC; they are the decision makers for siting energy facilities on state and private lands.

**The state’s standards for energy facility siting, are ascribed as OAR’s Oregon Administrative Rules. There are 30 standards (see EFSC site or the ODOE project site.)

***Given this situation, approval is basically guaranteed, as long as the developer keeps paying ODOE to do the work (i.e.: reviewing and dreaming-up mitigations). Amazing but true: ODOE’s Siting Division is funded from developers’ payments. Legal corruption? While STOP and others would certainly not want tax payers to be paying for the ODOE reviews, there is an inherent conflict of interest in this scenario. We have advocated for the developers’ fees to go directly to the state general fund and force the Division to receive its budget from the state legislature, like all other departments.

****OPUC = Oregon Public Utilities Commission. The OPUC looks out for the ratepayers and regulates our state’s energy industry to assure adequate and reliable supply for about 75% of the state. The remaining 25% are Coops or PUDs-public utility districts -- which are governed by their boards and ratepaying members. There are some cases in which the OPUC regulates entirely, such as utility wildfire planning.

*****It is difficult to find these designation categories/classifications in the new rules because they simple refer to the earlier rule (Ugh, another vicious cycle?). Look here: https://www.oregon.gov/energy/Get-Involved/rulemakingdocs/EFSC-5-2022TrackedChanges.pdf and go to pages 3-4 for definition of a Protected Area (26). In the tracked changes (underlined text) you will see the new list.