Oregon Energy Facility Siting Council Finalizes Rulemaking to Clarify Contested Case Procedures for Energy Projects

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 finalize 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.

The Council implemented a suite of 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 September meeting  materials, available here under Agenda Item H, and a copy of the final rule changes is provided here. 

Most of the 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 deliberated on the proposed changes over several meetings and across multiple public comment periods.  One particularly contentious issued surrounded the removal of the availability of one type of interlocutory appeal (which is an appeal that occurs before a final decision on an application). Previously, if a person seeking to participate in a contested case proceeding sought party status as to multiple issues, and the hearing officer denied party status as to even one of those issues, the person could file an interim appeal to the Council.  But these appeals were rarely filed and, when they were, the reversal rate was low.  Thus, there was little benefit to the public when weighed against the delay these appeals posed.  In the new rules, a participating party cannot bring an interlocutory appeal if some, but not all, of its contested issues are rejected.  An important backstop remains, however. As the Council’s staff report explains, “[f]or participants who have singular or even multiple concerns about a project and the denial of party status on all their issues will remove them from the contested case process, an interlocutory right remains.”

The new rules are effective Oct. 1, 2024.