Stop B2H Coalition v. Dept. of Energy

792

S069919 and S069920 argued and submitted January 18, S069924 submitted

on the briefs January 18; final order of Energy Facility Siting Council affirmed

March 9, 2023

In the Matter of the Application for Site Certificate

for the Boardman to Hemingway Transmission Line.

STOP B2H COALITION,

Petitioner,

v.

OREGON DEPARTMENT OF ENERGY,

Oregon Energy Facility Siting Council,

and Idaho Power Company,

Respondents.

(SC S069919)

In the Matter of the Application for Site Certificate

for the Boardman to Hemingway Transmission Line.

Michael McALLISTER,

Petitioner,

v.

OREGON DEPARTMENT OF ENERGY,

Oregon Energy Facility Siting Council,

and Idaho Power Company,

Respondents.

(SC S069920)

In the Matter of the Application for Site Certificate

for the Boardman to Hemingway Transmission Line.

Irene GILBERT,

Petitioner,

v.

OREGON DEPARTMENT OF ENERGY,

Oregon Energy Facility Siting Council,

and Idaho Power Company,

Respondents.

(SC S069924)

525 P3d 864

Cite as 370 Or 792 (2023) 793

Petitioners sought review of an order of the Energy Facility Siting Council

(EFSC) approving an Idaho Power Company (Idaho Power) application for a site

certificate to construct a high-voltage electrical transmission line. Following a

multi-year process that included a public comment period and a contested case

proceeding on the site certificate application, EFSC members voted unanimously

to approve Idaho Power’s application; EFSC then issued a final order detailing

its findings and conclusions. Pursuant to ORS 469.403(3), petitioners filed timely

petitions for judicial review of EFSC’s order, raising several assignments of error.

Held: (1) EFSC did not err in giving petitioners only limited party status rather

than full party status; (2) EFSC had authority to grant an exception to the noise

standards under OAR 340-035-0035, as well as a variance under OAR 340-035-

0100 and ORS 467.060, and substantial evidence supported EFSC’s granting

of an exception and a variance; (3) the Oregon Department of Energy’s modi-

fication of one requirement of former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019)

was authorized by that rule and did not involve the sort of change that required

rulemaking; (4) EFSC did not err in using Idaho Power’s methodology to deter-

mine whether the transmission line would be likely to result in “significant

adverse visual impacts” to scenic resources under OAR 345-022-0080; (5) Idaho

Power was not required to include in its application an alternative route that

the Bureau of Land Management had concluded was environmentally preferable,

and ORS 469.370(13) did not require EFSC to order Idaho Power to amend its

application to include that alternative; (6) EFSC did not err in assessing impacts

on historic sites and mitigation requirements; and (7) EFSC’s General Standard

of Review Condition 7 in its final order was not substantively different from OAR

345-025-0006(5).

The final order of the Energy Facility Siting Council is affirmed.

On judicial review from the Energy Facility Siting

Council.*

Karl G. Anuta, Law Office of Karl G. Anuta, PC, Portland,

argued the cause and filed the brief for petitioner STOP B2H

Coalition. Also on the briefs was Mike J. Sargetakis, Crag

Law Center, Portland.

Hailey R. McAllister, Oakland, California, argued the

cause for petitioner Michael McAllister. Jesse A. Buss,

Willamette Law Group, PC, Oregon City, filed the brief

for petitioner on review. Also on the brief was Hailey R.

McAllister, Oakland, California.

Irene Gilbert, La Grande, filed the brief pro se.

Patricia G. Rincon, Assistant Attorney General, Salem,

argued the cause and filed the briefs for respondents Oregon

Department of Energy and Oregon Energy Facility Siting

______________

* Judicial review of a Final Order of the Energy Facility Siting Counsel

dated September 27, 2022, Kent Howe, Vice Chair.

794 Stop B2H Coalition v. Dept. of Energy

Council. Patricia G. Rincon, Assistant Attorney General,

Salem, filed the briefs for those respondents in S069919

and S069920. Denise G. Fjordbeck filed the brief for those

respondents in S069924. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Sara Kobak, Schwabe Williamson & Wyatt, PC, Portland,

argued the cause and filed the briefs for respondent Idaho

Power Company. Also on the briefs were Andrew J. Lee,

Portland, and Lisa Rackner and Jocelyn C. Pease, McDowell

Rackner & Gibson, PC, Portland.

Anne Morrison, La Grande, filed the brief for amicus

curiae Anne Morrison, Attorney.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,

Bushong, and James, Justices.**

BUSHONG, J.

The final order of the Energy Facility Siting Council is

affirmed.

______________

** Nelson, J., resigned February 25, 2023, and did not participate in the

decision of this case.

Cite as 370 Or 792 (2023) 795

BUSHONG, J.

Petitioners seek review of an order of the Energy

Facility Siting Council (EFSC) approving an Idaho Power

Company (Idaho Power) application for a site certificate to

construct a high-voltage electrical transmission line from

Boardman, Oregon, to Hemingway, Idaho. Petitioner STOP

B2H Coalition (Stop B2H) contends that EFSC erred in the

following ways: (1) denying Stop B2H’s request for full party

status in the contested case proceedings; (2) granting an

exception or variance to noise level requirements; (3) mod-

ifying the governing rule to limit the noise assessment to

landowners within one-half mile of the transmission line;

and (4) misapplying EFSC’s rules on the visual impacts

from the transmission line.

Petitioner Michael McAllister (McAllister) contends

that EFSC erred by failing to require Idaho Power to include

in its application an “environmentally preferable” location

for a segment of the transmission line in Union County.

Petitioner Irene Gilbert (Gilbert) contends that

EFSC erred by (1) denying Gilbert’s request for full party

status; (2) failing to document the impacts on historic

properties and mitigation measures; (3) delegating future

approval of mitigation plans to the Oregon Department of

Energy (ODOE); (4) relying on federal standards to deter-

mine mitigation requirements for historic properties; and

(5) modifying a mandatory site certificate condition without

rulemaking.

Applying the governing standard of review, we affirm

EFSC’s final order approving the site certificate for this

transmission line for the reasons stated below.1

I. BACKGROUND

A. Statutory Framework

A high-voltage transmission line is an “energy facil-

ity” that cannot be constructed or operated in Oregon with-

out a site certificate from EFSC.2 ORS 469.300(11) (defining

1

We consolidate the three petitions for purposes of this opinion only.

2

EFSC consists of seven public members appointed by the Governor, subject

to confirmation by the Senate. ORS 469.450(1). ODOE is responsible for provid-

ing staff support and funding for EFSC. ORS 469.450(6).

796 Stop B2H Coalition v. Dept. of Energy

“energy facility”); ORS 469.320 (site certificate require-

ment). The process starts when the applicant submits a

notice of intent to apply for a site certificate. ORS 469.330(1).

ODOE then issues a project order that identifies all stat-

utes, administrative regulations, and other requirements

that the applicant must satisfy to obtain the site certificate.

ORS 469.330(3). The applicant must submit evidence of com-

pliance with all project order requirements in its site certif-

icate application. ORS 469.350.

If ODOE determines that an application is com-

plete, it issues a draft proposed order and gives the public

an opportunity to comment. ORS 469.350(4); ORS 469.370.

EFSC then conducts a contested case on issues raised during

the public comment period in accordance with ORS chapter

183 and any procedures adopted by EFSC. ORS 469.370(5).3

Only issues raised with sufficient specificity during the pub-

lic comment period may be raised in the contested case pro-

ceeding. ORS 469.370(3), (4). EFSC then issues a final order

“either approving or rejecting the application based upon the

standards adopted under ORS 469.501 and any additional

statutes, rules or local ordinances determined to be appli-

cable to the facility by the project order[.]” ORS 469.370(7).

Any party to the contested case can seek review of EFSC’s

final order in this court. ORS 469.403(2), (3).

ORS 469.501(1) authorizes EFSC to adopt standards

for the siting, construction, and operation of an energy facil-

ity. The standards may address a wide variety of subjects,

including seismic hazards; protection of wilderness areas,

wildlife refuges, and scenic waterways; effects on fish and

wildlife; impacts on historic, cultural, and archaeological

resources; protection of public health and safety; impacts

on recreation, scenic, and aesthetic values; consistency with

the state energy policy; compliance with statewide plan-

ning goals; soil protection; and other subjects. ORS 469.501

(1)(a) - (o).

To issue a site certificate, EFSC must find by a pre-

ponderance of the evidence that the facility complies with

(1) the standards adopted by EFSC and (2) “all other Oregon

3

By rule, EFSC appoints a hearing officer “to conduct a contested case pro-

ceeding on behalf of the Council.” OAR 345-015-0023(1).

Cite as 370 Or 792 (2023) 797

statutes and administrative rules” that apply to the pro-

posed facility, unless EFSC finds that full compliance is not

required. ORS 469.503(1), (3). If the facility does not fully

comply with all applicable standards, EFSC may still issue

the site certificate if it finds that “the overall public benefits

of the facility outweigh any adverse effects on a resource or

interest protected by the applicable standards the facility

does not meet.” ORS 469.501(3)(a); ORS 469.503(1).

The stated purpose of this statutory scheme is to

establish “a comprehensive system for the siting, monitoring

and regulating of the location, construction and operation of

all energy facilities in this state.” ORS 469.310. As part of

this “comprehensive system,” the statute provides that a site

certificate “shall bind the state and all counties and cities

and political subdivisions in this state as to the approval

of the site and the construction and operation of the facil-

ity.” ORS 469.401(3). State agencies and local political sub-

divisions must issue any permits, licenses, and certificates

required by the site certificate. Id. On administrative or

judicial review of any permitting decision, the only issue is

whether the permit is consistent with the site certificate. Id.

We examined this statutory scheme in Marbet v.

Portland Gen. Elect., 277 Or 447, 449, 561 P2d 154 (1977),

“the first contested proceeding under the energy facility sit-

ing act” after its enactment in 1971. There, we pointed out

that the statute “assigns the council a wide range of duties

relating to power facilities in this state.” Id. at 450. The stat-

ute “reflects a legislative policy to centralize these respon-

sibilities in the council.” Id. Regulatory concerns “previ-

ously pursued through * * * separate agencies are now to

find expression through special advisory groups, * * * inter-

agency coordination, * * * and in the council’s procedures.”

Id.

B. Proceedings Below

The following overview—summarized from EFSC’s

final order and not disputed by the parties—provides con-

text for the issues raised in this case.

Idaho Power submitted its notice of intent to apply

for a site certificate for the transmission line at issue in

798 Stop B2H Coalition v. Dept. of Energy

August 2008. Over the course of the next 10 years, Idaho

Power engaged in community outreach and a series of pub-

lic meetings to obtain input and refine the proposed proj-

ect. Seventeen different agencies, including the Oregon

Department of Fish and Wildlife and the United States

Department of the Interior Bureau of Land Management

(BLM),4 participated and offered comment.

ODOE issued its first project order in March 2012,

and Idaho Power submitted its preliminary application for a

Site Certificate in February 2013. Over the next five years,

ODOE amended the project order twice, while Idaho Power

amended its preliminary application, partly in response to

input from the public and other agencies.

One such agency was BLM. The National Environ-

mental Policy Act (NEPA) had required BLM to prepare

an Environmental Impact Statement (EIS) for the project.

42 USC §§ 4321 - 4370. BLM had issued its final EIS in

November 2016 and issued its Record of Decision (ROD) a

year later. In its EIS and ROD, BLM had listed an alterna-

tive route for one segment of the transmission line in Union

County—known as the Glass Hill route—as “environmen-

tally preferable.”

Idaho Power had included that route—along with

other alternatives—in its preliminary application, but it did

not include the Glass Hill route in its amended application.

In written testimony, Idaho Power explained why it decided

not to include the Glass Hill route:

“* * * Idaho Power has worked to develop an acceptable route

through Union County for over a decade. Early on, Idaho

Power considered the Glass Hill Route, along with at least

one other route in the vicinity of Morgan Lake. However,

the Glass Hill Route was confronted with substantial back-

lash from the affected landowners and other interested

parties, some of which formed the Glass Hill Coalition spe-

cifically to challenge that route. The Confederated Tribes

of the Umatilla Indian Reservation also expressed dis-

favor for the Glass Hill Route due to impacts to cultural

resources. The Morgan Lake Alternative was developed

4

BLM was involved because some segments of the proposed transmission

line would cross federal lands managed by BLM.

Cite as 370 Or 792 (2023) 799

in response to those concerns, as well as in response to a

request made by one of the affected landowners during the

federal National Environmental Policy Act (‘NEPA’) pro-

cess to locate the route close to the border of their prop-

erty rather than bisecting it. The Mill Creek Route was

also developed during the NEPA process, in response to

the County’s request to site the Project in parallel with the

existing 230-kv line.”

In September 2018, Idaho Power finalized its appli-

cation. ODOE issued a draft proposed order recommending

approval of the application, and EFSC appointed a hearing

officer; public notice was given, and a public comment period

was opened. Petitioners Stop B2H, McAllister, and Gilbert

submitted comments during that public comment period. In

July 2020, ODOE issued a proposed order and set a dead-

line for interested parties to request party status in the con-

tested case proceedings. Over 50 petitioners—including, as

relevant here, Stop B2H and Gilbert—asked to participate

as full parties.

In late 2020, the hearing officer issued an order on

the petitions for party status, granting only limited party

status to Stop B2H and Gilbert, among others. Stop B2H

and Gilbert appealed that ruling to EFSC. EFSC conducted

a hearing and ultimately agreed with the hearing officer

that Stop B2H and Gilbert would only be allowed to partici-

pate in the contested case proceeding as limited parties.

The hearing officer issued the first case manage-

ment order for the contested case proceedings in January

2021 and began receiving witness testimony and other evi-

dence. The evidentiary record for the contested case closed

on January 31, 2022. The hearing officer issued a proposed

contested case order on May 31, 2022. EFSC conducted a

hearing on the hearing officer’s proposed contested case

order in August 2022. EFSC then issued a draft final order

and held its final hearing on September 27, 2022. After that

hearing, the EFSC members voted unanimously to approve

Idaho Power’s application.

EFSC’s final order, dated September 27, 2022, is 729

pages long (excluding attachments). The order describes the

procedural history, opportunities for public input, and the

800 Stop B2H Coalition v. Dept. of Energy

proposed facility—including the corridor assessment estab-

lishing the locations for this 300-mile transmission line—in

detail. The order also includes detailed findings and conclu-

sions regarding compliance with the standards established

by EFSC and other applicable statutes and regulations,

including the standards for noise, visual impacts, effects on

historic properties, and mitigation that had been raised in

this case. Stop B2H, McAllister, and Gilbert filed timely peti-

tions for review of that order pursuant to ORS 469.403(3).

C. Standard of Review

“We review final orders of the council for errors of

law, abuse of agency discretion, and lack of substantial evi-

dence in the record to support the challenged findings of

fact.” Save Our Rural Oregon v. Energy Facility Siting, 339

Or 353, 356, 121 P3d 1141 (2005); see ORS 469.403(6); ORS

183.482(7), (8).

Many of the parties’ assignments of error require

us to construe and apply various provisions of the energy

facility siting act. In construing the statute, we attempt to

discern the intent of the legislature that enacted it. ORS

174.020; State v. McDowell, 352 Or 27, 30, 279 P3d 198 (2012)

(“[o]ur task is to discern what the legislature contemplated

in enacting” the statute at issue). To discern that intent, we

give primary weight to the statutory text in context, with

appropriate additional weight accorded to any relevant leg-

islative history. City of Portland v. Bartlett, 369 Or 606, 610,

509 P3d 99 (2022); State v. Gaines, 346 Or 160, 171-72, 206

P3d 1042 (2009). Context “includes other provisions of the

same statute and other related statutes,” PGE v. Bureau of

Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993),

and “case law interpreting the statute at issue and related

statutes, including earlier versions of those statutes,” SAIF

v. Walker, 330 Or 102, 109, 996 P2d 979 (2000).

Some assignments of error require us to apply

agency rules and review EFSC’s interpretation of those

rules. We review an agency’s interpretation of a rule to see if

the agency has “erroneously interpreted a provision of law.”

ORS 183.482(8)(a). Where “the provision of law” at issue is

the rule itself, and the agency offers a “plausible interpreta-

tion” of that rule, then “there is no basis on which this court

Cite as 370 Or 792 (2023) 801

can assert that the rule has been interpreted ‘erroneously’ ”

unless the interpretation is “shown either to be inconsistent

with the wording of the rule itself, or with the rule’s context,

or with any other source of law.” Don’t Waste Oregon Com. v.

Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).

II. DISCUSSION

A. Stop B2H’s Assignments of Error

1. First Assignment: Denial of Full Party Status

Stop B2H applied to be a full party in the contested

case proceedings but was only allowed to participate as a

limited party. Stop B2H contends that EFSC has no author-

ity to override its choice to participate as a full party.

The Oregon Administrative Procedures Act (APA)

defines “party” to include any person or entity “requesting to

participate before the agency as a party or in a limited party

status which the agency determines either has an interest

in the outcome of the agency’s proceeding or represents a

public interest in such result.” ORS 183.310(7)(c). The model

rules promulgated by the Attorney General for contested

case proceedings—adopted by EFSC, OAR 345-001-0005—

further address party status: “Persons who have an interest

in the outcome of the agency’s contested case proceeding or

who represent a public interest in such result may request

to participate as parties or limited parties.” OAR 137-003-

0005(1). The rule goes on to state, “A petition to participate

as a party may be treated as a petition to participate as a

limited party.” OAR 137-003-0005(8). If the agency grants

a petition to participate, “the agency shall specify areas of

participation and procedural limitations as it deems appro-

priate.” OAR 137-003-0005(9).

Under the model rules, an agency is not bound by

the party’s “request” and is authorized to treat a party’s

petition to participate as a party “as a petition to partici-

pate as a limited party.”5 That conclusion is supported by

our recent decision in Friends of Columbia Gorge v. Energy

5

OAR 137-003-0005(8) uses the passive voice: A petition to participate “may

be treated” as a petition to participate as a limited party. In context, the only log-

ical reading is that the agency is the actor with the authority to treat a petition

to participate as a party as a petition to participate as a limited party.

802 Stop B2H Coalition v. Dept. of Energy

Fac. Siting Coun., 368 Or 123, 486 P3d 787 (2021). There, we

held that certain procedural rules adopted by EFSC were

invalid because they restricted “the participatory rights of

all parties, in a manner not allowed by the APA.” Id. at 133.

In reaching that conclusion, we discussed the

legislative history of the APA provisions on “parties” and

“limited parties” in a contested case proceeding. The stat-

ute originally distinguished between parties “entitled as of

right” to participate and parties “permitted to intervene by

the agency.” Id. at 129. Parties entitled “as of right” could

fully participate in the proceeding, but “the APA allowed

agencies to limit the participation of intervening parties.”

Id.

A 1979 amendment to the APA “inserted the concept

of limited parties into the definition of ‘party’ that exists

today.” Id. at 131. As a result, “a person requesting to par-

ticipate before the agency—in the nature of an intervenor—

might be either a full party or a limited party in a particular

contested case proceeding[.]” Id. at 132. An agency “may * * *

restrict rights of participation for limited parties in a man-

ner that it cannot for full parties.” Id.; see ORS 183.450(3)

(“Persons appearing in a limited party status shall partic-

ipate in the manner and to the extent prescribed by rule of

the agency.”).

ORS 469.370(5) provides that the applicant (Idaho

Power in this case) “shall be a party to the contested case.” In

other words, the applicant is entitled to fully participate “as

of right.” EFSC “may permit any other person” who partici-

pated during the public comment period to become a party

to the contested case. Id. The APA has always “allowed agen-

cies to limit the participation” of parties who are “permitted

to intervene by the agency.” Friends of Columbia Gorge, 368

Or at 129.

Applying those principles here, under the energy

facility siting act, EFSC “may permit” Stop B2H to partici-

pate in the contested case, just as an agency could “permit”

an interested party to intervene under earlier versions of

the APA. Under the model rules, EFSC could treat a petition

to participate as a full party “as a petition to participate

as a limited party” under OAR 137-003-0005(8), just as an

Cite as 370 Or 792 (2023) 803

agency could limit the participation of an intervenor under

earlier versions of the APA. And under the current version

of the APA and the model rules, EFSC is expressly autho-

rized to limit the participation of a party that it permitted

to participate as a limited party. ORS 183.450(3); OAR 137-

003-0005(9). The terminology has changed, but the agency’s

authority has not. We conclude that EFSC was authorized to

treat Stop B2H as a limited party.

Stop B2H also argues that EFSC did not apply the

factors in OAR 137-003-0005(7) in evaluating its application

to be a full party. That rule provides:

“(7) In ruling on petitions to participate as a party or

a limited party, the agency shall consider:

“(a) Whether the petitioner has demonstrated a per-

sonal or public interest that could reasonably be affected by

the outcome of the proceeding;

“(b) Whether any such affected interest is within the

scope of the agency’s jurisdiction and within the scope of

the notice of contested case hearing;

“(c) When a public interest is alleged, the qualifica-

tions of the petitioner to represent that interest;

“(d) The extent to which the petitioner’s interest will

be represented by existing parties.”

Here, EFSC’s hearing officer addressed over 50 dif-

ferent petitions to appear, most of them asking for full party

status. The hearing officer’s order cited the governing rule,

OAR 137-003-0005(7), and expressly discussed the public

interest factor of those petitioners seeking to appear as par-

ties, which covers factors (a) and (c) of the rule.6 The hearing

officer also stated that petitioners had shown either a per-

sonal or public interest in the outcome:

“[L]imited party status is appropriate where, as in this

case, a petitioner satisfies the eligibility requirements

for participation and has established a personal or public

interest in the outcome of the proceeding, but is only quali-

fied to respond to some, but not all, issues to be considered

in the contested case.”

6

EFSC’s order affirming the hearing officer’s designation of limited party

status for Stop B2H and Gilbert also stated that it was relying on the Attorney

General’s model rules for contested cases, OAR 137-003-0000 to 137-003-0092.

804 Stop B2H Coalition v. Dept. of Energy

The hearing officer articulated its reasons for giv-

ing limited party status to most petitioners:

“Mindful of the following considerations—the strict

eligibility requirements for participation set out in ORS

469.370, OAR 345-015-0016(3), and OAR 137-003-0005;

the number of petitioners with an interest in the out-

come of this contested case requesting to participate as a

party; the number and nature of properly raised contested

case issues in this matter; and the ALJ’s duties under

OAR 345-015-0023(2) to, among other things, ensure a

full, fair and impartial hearing, facilitate the presenta-

tion of evidence, maintain order, comply with time lim-

its, and assist the Council in making its decision—I find

it appropriate under OAR 137-003-0005(8) and (9), OAR

137-003-0040, and OAR 345-015-0083, to limit success-

ful petitioners’ participation in this contested case to the

issues properly raised in their respective petitions for party

status.”

(Footnote omitted.)

Although the hearing officer did not expressly

address factor (d)—the extent to which Stop B2H’s interest

would be represented by existing parties—the hearing offi-

cer allowed all limited parties to participate with respect

to the issues raised in their petitions. Given the number

of parties and the breadth of the issues raised, there may

have been some duplication of interests represented by mul-

tiple parties, but the hearing officer’s order ensured that

all issues raised by any party would be considered during

this process. Thus, the failure to expressly address factor

(d) did not preclude Stop B2H from presenting all the issues

it wanted to present during the contested case process.

Nothing in the rule precluded the hearing officer from also

considering the need to limit party status to keep the pro-

ceedings manageable.

Stop B2H does not contend that EFSC abused its

discretion in granting it limited party status under that rule

or challenge the evidentiary support for any factual find-

ings. We conclude that EFSC (1) had authority to grant lim-

ited party status to Stop B2H and (2) considered the factors

it was required to consider in making that determination.

Cite as 370 Or 792 (2023) 805

2. Second Assignment: Noise Level Limits

It is undisputed that, on occasion, the “corona noise”

from the transmission line will exceed the noise limits speci-

fied in OAR 340-035-0035(1)(b)(B)(i).7 EFSC concluded that,

under the circumstances, it could grant an exception to the

noise standards under OAR 340-035-0035(6)(a) and a vari-

ance under ORS 467.060 and OAR 340-035-0100.8

Stop B2H contends that EFSC lacks authority to

grant either an exception or a variance. According to Stop

B2H, only the Department of Environmental Quality (DEQ)

has authority to grant exceptions to the noise standards

under OAR 340-035-0035(6), and only the Environmental

Quality Commission (EQC) has authority to grant variances

under ORS 467.060. In Stop B2H’s view, if the legislature

had intended to give EFSC the authority to grant excep-

tions and variances from noise regulations, it would have

stated that expressly, as it did in ORS 469.504(2) (authoriz-

ing EFSC to grant exceptions to statewide planning goals).9

EFSC explained in its final order why it addressed

Idaho Power’s requests for an exception and variance instead

of referring Idaho Power to EQC and DEQ. EFSC stated that

it “assumes the authority as the decision maker to interpret

and implement” the noise rules because (1) “the Legislative

Assembly withdrew all funding for implementing and

7

As described in EFSC’s final order, corona noise “is characterized by a low

hum, hissing, frying, or crackling sound” that results from “small local pressure

changes” causing energy dissipation “near the surface of * * * conductors.” Corona

noise may be perceptible at some locations “during occasional foul weather

events.”

8

The statute and rules do not define “exception” and “variance” for purposes

of the noise standards statute. Those terms are commonly used in zoning laws,

however. In that context, an “exception” generally means a predefined circum-

stance to which a general regulation would not apply; a “variance” is a decision

to not apply a regulatory requirement so as to avoid undue hardship to the appli-

cant. See Application of Devereux Found., 351 Pa 478, 483, 41 A2d 744, 746, appeal

dismissed, 326 US 686, 66 S Ct 89, 90 L Ed 403 (1945); Mitchell Land Co. v.

Planning & Zoning Board Of Appeals, 140 Conn 527, 531-33, 102 A2d 316, 318-19

(1953); see generally Sara C. Bronin and Dwight H. Merriam, 3 Rathkopf’s Law of

Zoning and Planning § 58.3, 58-10-11 (4th ed 2018). Those definitions are consis-

tent with how those terms are used here.

9

ORS 469.504(2) states that EFSC “may take an exception” to a statewide

planning goal under certain circumstances. Similarly, ORS 469.501(2) states

that EFSC “may adopt exemptions from any need standard” adopted under the

state energy policy.

806 Stop B2H Coalition v. Dept. of Energy

administering” the noise program as stated in OAR 340-

035-0110; and (2) it had received a management directive

from DEQ as part of the contested case authorizing EFSC

to “review applications to ensure that proposed facilities

meet the State noise regulations.” The rule cited by EFSC

states that EQC and DEQ have “suspended administration

of the noise program, including but not limited to processing

requests for exceptions and variances[.]” OAR 340-035-0110.

Thus, EFSC addressed Idaho Power’s requests for

an exception or variance only because EQC and DEQ had

made it clear by rule—and confirmed in the directive

to EFSC—that EQC and DEQ would not address those

requests.10 Under those circumstances, it would have been

futile for EFSC to refer Idaho Power’s exception/variance

requests to EQC and DEQ.

The question, though, is whether EFSC’s practical

solution to this problem exceeded its authority under those

circumstances. We conclude that it did not. The energy

facility siting act (1) grants EFSC authority to adopt stan-

dards for a particular facility in a wide variety of areas that

otherwise would be governed by other state agencies (ORS

469.501(1)); (2) authorizes EFSC to approve a site certifi-

cate based on those standards “and any additional statutes,

rules or local ordinances” that may apply (ORS 469.370(7));

(3) makes EFSC’s decision to issue a site certificate binding

on all state agencies and local governments and requires

them to “promptly issue” any permits, licenses, and cer-

tificates required by the site certificate11 (ORS 469.401(3));

and (4) authorizes EFSC to issue a site certificate even if

10

Compare EFSC’s decision to grant Idaho Power’s requests for an exception

to and variance from the noise standards with EFSC’s response to Idaho Power’s

request for an exemption from the reforestation requirements of the Oregon

Forest Practices Act (FPA), ORS 527.610 to 527.770. EFSC stated in that context

that it “does not assert jurisdiction of the FPA” and directed Idaho Power “to

submit its request for exemption directly to the Oregon Department of Forestry.”

That statement supports the conclusion that EFSC addressed the requests for an

exception to and variance from the noise standards only because EQC and DEQ

had suspended processing those requests.

11

An example of EFSC’s authority to direct other agencies to issue permits

otherwise required by state law, subject only to the conditions in the site certif-

icate, is found in EFSC’s direction to the Department of State Lands to issue a

removal-fill permit for wetlands affected by the project, subject only to the condi-

tions specified in the site certificate.

Cite as 370 Or 792 (2023) 807

the facility does not meet all applicable standards if EFSC

determines that “the overall public benefits of the facil-

ity outweigh any adverse effects on a resource or interest

protected by the applicable standards the facility does not

meet” (ORS 469.501(3)(a) and ORS 469.503(1)).

Stop B2H’s contention that the legislature intended

to give EFSC authority to grant exceptions only where the

statute stated that authority expressly—as in ORS 469.501(2)

and ORS 469.504(2)—is inconsistent with the legislature’s

broad grant of statutory authority to EFSC throughout the

energy facility siting act as summarized above. We con-

clude that EFSC had the authority to grant (1) an excep-

tion to the noise standards under OAR 340-035-0035(6)(a),

and (2) a variance under OAR 340-035-0100 and ORS

467.060.12

Stop B2H also contends that, even if EFSC had the

authority to grant a variance or an exception, it erred in

doing so because the criteria for granting an exception or a

variance were not met. Stop B2H primarily contends that

noise violations are not “unusual or infrequent” as required

for an exception under OAR 340-035-0035(6)(a).13 Stop B2H

contends that the evidence in the record established that

weather would cause noise violations 48 days a year, which

(it argues) is more than “unusual or infrequent.”

EFSC determined that noise exceedances would

be unusual or infrequent based on the evidence showing

that exceedances may occur only in less than two percent of

the total hours in a year. To the extent Stop B2H contends

that EFSC committed a legal error in interpreting what is

meant by “unusual or infrequent” under the rule, we see

no error. Nothing in the rule or statute required EFSC to

use the number of days instead of the percentage of hours

in assessing whether noise exceedances would be unusual

12

We need not decide whether EFSC could exercise this broad statutory

authority absent the unusual circumstances presented here given EQC and

DEQ’s decision to suspend processing requests for exceptions and variances.

13

Stop B2H also contends in its brief that the requirements for a variance in

paragraphs (1)(b) through (d) of ORS 467.060 are not met, but it does not address

a variance under paragraph (1)(a) of ORS 467.060 for noise exceedances resulting

from conditions “that are beyond the control” of Idaho Power.

808 Stop B2H Coalition v. Dept. of Energy

or infrequent.14 To the extent Stop B2H is challenging the

evidentiary support for the factual findings underlying the

exception and variance granted by EFSC, we review that

issue for substantial evidence in the record.

First, we conclude that there was substantial evi-

dence supporting the grant of an exception. EFSC explained

in its final order its reason for granting an exception for

unusual or infrequent events:

“* * * Council finds that exceedances along the transmission

line would be an infrequent event because exceedances are

expected to occur less than two percent of the total hours

in a given year (because they are projected to occur during

foul weather, and foul weather events are infrequent in the

project area, and other circumstances need to occur simul-

taneously to result in an exceedance, i.e., low ambient noise

environment and transmission line operating at full capac-

ity). Therefore, under OAR 340-035-0035(6)(a)[,] Council

grants an exception to the facility, subject to the noise con-

trol conditions described in this Order.”

That conclusion was based on weather data evaluated by

a meteorologist and detailed sound measurement studies

summarized in the final order. That evidence constitutes

substantial evidence supporting EFSC’s conclusion that

noise exceedances would be “unusual or infrequent,” thereby

justifying an exception under OAR 340-035-0035(6)(a).

Second, we also conclude that there was substantial

evidence to support granting a variance. Idaho Power had

requested a variance from the “ambient antidegradation

standard” in OAR 340-035-0100.15 Based on the noise analy-

sis studies and weather data summarized in the final order,

EFSC granted a variance to the ambient antidegradation

14

Stop B2H does dispute EFSC’s finding that noise exceedances will occur in

less than two percent of the total hours per year.

15

“Ambient [n]oise” is defined in the regulations as “the all-encompassing

noise associated with a given environment, being usually a composite of sounds

from many sources near and far.” OAR 340-035-0015(5). The “ambient antideg-

radation standard” established in the rule means that a noise source may not

“cause or permit” an increase of ambient noise levels by more than 10 dBA (deci-

bels adjusted to human hearing using the A-weighting scale (soft)) in any one

hour or exceed the levels specified by the rules at an appropriate measurement

point. OAR 340-035-0035(1)(b)(B)(i).

Cite as 370 Or 792 (2023) 809

standard for the transmission line “at any time of day or

night during foul weather events (defined as a rain rate

of 0.8 to 5 millimeters per hour).” EFSC’s final order first

explains that “ambient antidegradation standard exceed-

ance[s] are predicted during foul weather conditions” and

Idaho Power “cannot be accountable for weather conditions

that may cause audible corona noise, as the weather is a con-

dition beyond its control.” EFSC also found that “strict com-

pliance with the ambient antidegradation standard in DEQ

rule is inappropriate, unreasonable, or impractical because

of special physical conditions and special circumstances con-

tributed to the applicant’s proposed transmission line loca-

tion relating to NSRs [noise-sensitive receptors] that may

experience noise exceedances.” Finally, EFSC found that

strict compliance with the rule “would result in substantial

curtailment or closing down (never building) the proposed

transmission line and that * * * there is not another alterna-

tive facility available.”

Stop B2H disagrees with EFSC’s findings and con-

clusions, but it has not demonstrated that the findings are

unsupported by substantial evidence given the studies and

analyses summarized in the final order, and it has not per-

suaded us that EFSC’s conclusions are legally erroneous in

any respect.

3. Third Assignment: Modifying Rule to Limit Noise

Assessment to Landowners Within One-Half Mile of

the Transmission Line

Former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019)

generally requires applicants to submit a list of noise-

sensitive landowners within one mile of the proposed facil-

ity.16 Here, ODOE’s project order only required Idaho Power

to list landowners within a half mile of the transmission

line “because of the linear nature of the proposed facil-

ity.” Stop B2H contends that ODOE could not change the

one-mile requirement by project order without engaging in

rulemaking.

16

At the time of the agency proceedings, that regulation was numbered OAR

345-021-0010(1)(x). Rule amendments have shifted those provisions to OAR 345-

021-0010(1)(y). We refer to the former version of the rule, subsection (1)(x), for

consistency with citations in the agency record.

810 Stop B2H Coalition v. Dept. of Energy

However, the existing rule states that ODOE “may

waive or modify those requirements that [ODOE] deter-

mines are not applicable to the proposed facility.” OAR 345-

021-0000(4). The rule further provides that the project order

may identify “any appropriate modifications to applicable

provisions of this rule.” OAR 345-021-0010(1).

Here, ODOE in effect modified the one-mile

requirement—or determined that the one-mile requirement

was “not applicable” to this transmission line—in a way that

was authorized by the rule. When a rule expressly autho-

rizes an agency to modify a condition to address a specific

case, the modification is not an amendment of the rule. A

rule is an agency directive “of general applicability.” ORS

183.310(9). An agency action “directed to a specific person

or entity” is not a generally applicable rule. Pen-Nor, Inc. v.

Oregon Dept. Higher Ed., 84 Or App 502, 507-08, 734 P2d 395

(1987). Here, ODOE’s modification of the one-mile require-

ment applied only to the site certificate for this specific pro-

posed transmission line. That modification is not a rule of

general applicability that would apply to other projects.

Thus, rulemaking was not required. There was no

legal error in modifying the one-mile requirement specified

in former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019) for this

transmission line. Stop B2H does not contend that ODOE

abused its discretion in making that modification or chal-

lenge the evidentiary support for any factual findings.17

4. Fourth Assignment: Assessing Visual Impacts

Under OAR 345-022-0080(1), EFSC can issue a site

certificate only if “the design, construction and operation of

the facility, taking into account mitigation, are not likely to

result in significant adverse visual impacts to significant or

important scenic resources.” “Significant” is defined in part

to mean “having an important consequence * * * based upon

the magnitude and likelihood of the impact on the affected

human population[.]” OAR 345-001-0010(29).

17

EFSC’s final order required Idaho Power to address noise impacts on land-

owners of noise-sensitive properties within one mile of the facility for any land-

owner “who nevertheless believes that exceedances above the ambient degrada-

tion standard have occurred at their NSR property.”

Cite as 370 Or 792 (2023) 811

Stop B2H contends that Idaho Power’s methodology

for assessing the visual impacts of the transmission line

was flawed because it failed to account for viewers’ subjec-

tive perceptions and reactions when determining whether

a potential impact was going to be “significant.” However,

nothing in the rule required Idaho Power to utilize a par-

ticular methodology or specifically account for subjective

perceptions and reactions in assessing whether the trans-

mission line would be likely to result in “significant adverse

visual impacts” to scenic resources.

Moreover, as explained in the final order, the meth-

odology used to assess the visual impacts of the transmission

line did take viewers’ subjective perceptions into account.

Idaho Power developed a detailed visual-impact assessment

methodology and prepared a comprehensive visual impact

study. The assessment “incorporated the BLM visual ‘sen-

sitivity level’ criterion and the [US Forest Service] visual

‘concern’ criterion into its methodology, both of which mea-

sure the degree to which viewers subjectively value a visual

resource.”18 Stop B2H disagrees with how the methodol-

ogy took subjective perceptions into account and the con-

clusions EFSC reached in assessing the visual impacts of

the facility, but Stop B2H has not identified a legal error in

EFSC’s use of Idaho Power’s methodology to assess whether

the transmission line would result in significant adverse

visual impacts to scenic resources. Stop B2H does not chal-

lenge the evidentiary support for any factual findings or

contend that EFSC abused its discretion in assessing the

visual impacts of the transmission line.

B. McAllister’s Assignment of Error

As noted above, for a portion of the transmission

line running through Union County, Idaho Power’s prelimi-

nary application included an alternative known as the Glass

Hill route, but the final application did not include the Glass

Hill route, proposing instead two other alternative routes

18

The study concluded that, without mitigation, the facility might cause sig-

nificant visual impacts at certain points—including near the National Historic

Oregon Trail Interpretive Center outside of Baker City—but EFSC required

mitigation (including, among other things, modified H-frame tower structures)

to lessen the visual impacts at those locations, consistent with EFSC’s siting

standards.

812 Stop B2H Coalition v. Dept. of Energy

for that segment of the line. During the public comment

period and contested case proceedings, McAllister argued

that the Glass Hill route should be chosen because BLM had

identified that route during the NEPA process as the “envi-

ronmentally preferable” alternative. EFSC concluded that

McAllister’s argument that EFSC must consider the Glass

Hill alternative route under ORS 469.370(13) was outside

the scope of its jurisdiction.

McAllister contends here that ORS 469.370(13)

required Idaho Power to include that “environmentally pref-

erable” alternative in its application for EFSC’s full con-

sideration. In response, Idaho Power and the state contend

that (1) McAllister did not preserve that argument for judi-

cial review, because he did not cite ORS 469.370(13) during

the public comment period; (2) EFSC correctly rejected the

argument as outside the scope of its jurisdiction; and (3) the

argument fails on its merits.

We need not decide the preservation issue, because

we agree with Idaho Power and the state that the argument

fails on its merits.19 Before addressing the merits, however,

we first address the jurisdictional argument.

ORS 469.370(7) authorizes EFSC to review “the

application” for compliance with EFSC conditions and other

legal standards. According to Idaho Power and the state,

Idaho Power’s decision to delete the Glass Hill route from

its application removed that alternative from EFSC’s juris-

diction, under Teledyne Wah Chang v. Energy Fac. Siting

Council, 298 Or 240, 692 P2d 86 (1984). We disagree in part.

In Teledyne Wah Chang, EFSC had approved a site

certificate for a waste disposal facility at a location different

from the location specified in the application. We reversed,

noting that the statutory standard governing this type of

facility required EFSC to determine whether “the site”

specified in the application “is suitable for disposal of such

wastes.” Id. at 258 (citing ORS 469.375). We explained that

“[t]his [statutory] standard does not permit the Council to

reject a proposed site because it believes another location is

19

McAllister cited ORS 469.370(13) in the contested case proceedings but

did not cite the statute in advocating for the Glass Hill route during the public

comment period.

Cite as 370 Or 792 (2023) 813

better. EFSC was obligated to accept or reject the [site] on

its own merits, rather than engaging in a comparison.” Id.

The statutory standard at issue here is different.

This transmission line traverses a 300-mile “corridor.” It is

not placed on a single “site” that is subject to EFSC review

to determine whether that site is “suitable” for the proposed

facility. The statute governing EFSC’s review of a transmis-

sion line application broadly requires EFSC to review “the

application” for compliance with legal standards and issue a

final order “either approving or rejecting” that application.

ORS 469.370(7). Unlike an application for a waste disposal

facility, an application for a transmission line must include

a “corridor selection assessment explaining how the appli-

cant selected the corridors for analysis in the application.”

OAR 345-021-0010(1)(b)(D).20

Thus, Idaho Power and the state are correct that

EFSC is limited to reviewing the application, but review-

ing the application did not necessarily remove from EFSC’s

jurisdiction an alternative route that Idaho Power addressed

during the corridor selection assessment process. Because

McAllister has not challenged the corridor selection assess-

ment process, we decline to further address EFSC’s review

of that process. We turn to the merits of McAllister’s argu-

ment that ORS 469.370(13) required EFSC to approve the

Glass Hill route.

ORS 469.370(13) states:

“For a facility that is subject to and has been or will

be reviewed by a federal agency under the National

Environmental Policy Act, 42 U.S.C. Section 4321, et seq.,

the council shall conduct its site certificate review, to the

maximum extent feasible, in a manner that is consistent

with and does not duplicate the federal agency review. Such

coordination shall include, but need not be limited to:

“(a) Elimination of duplicative application, study and

reporting requirements;

20

The rule requires the applicant to “discuss the reasons for selecting the

corridors, based upon the evaluation” of the factors listed in the rule. OAR 345-

021-0010(1)(b)(D). The factors include “[l]east disturbance to streams, rivers and

wetlands” and “[l]east disturbance to areas where historical, cultural or archae-

ological resources are likely to exist.” Id.

814 Stop B2H Coalition v. Dept. of Energy

“(b) Council use of information generated and docu-

ments prepared for the federal agency review;

“(c) Development with the federal agency and reliance

on a joint record to address applicable council standards;

“(d) Whenever feasible, joint hearings and issuance of

a site certificate decision in a time frame consistent with

the federal agency review; and

“(e) To the extent consistent with applicable state

standards, establishment of conditions in and site certifi-

cate that are consistent with the conditions established by

the federal agency.”

Thus, the text of the statute only required EFSC’s “coordi-

nation” with BLM and required it to conduct its site review,

“to the maximum extent feasible,” in a manner that was

“consistent with and d[id] not duplicate” the BLM review. It

also required EFSC to establish conditions in the site certif-

icate “that [were] consistent with the conditions established

by the federal agency.” ORS 469.370(13)(e).

“Coordination” means the “combination in suitable

relation for most effective or harmonious results.” Webster’s

Third New Int’l Dictionary 502 (unabridged ed 2002).

“Consistent with” generally means “marked by harmony,

regularity, or steady continuity throughout” or “coexisting

and showing no noteworthy opposing, conflicting, inharmo-

nious, or contradictory qualities or trends.” Id. at 484. Those

terms govern EFSC’s process—that is, the “manner” in

which EFSC must “conduct its site certificate review”—but

they do not mandate any particular result, including choos-

ing a route deemed preferable during the NEPA process.

Moreover, NEPA “does not mandate particular

results, but simply provides the necessary process to ensure

that federal agencies take a hard look at the environmental

consequences of their actions.” Muckleshoot Indian Tribe v.

U.S. Forest Service, 177 F3d 800, 814 (9th Cir 1999) (inter-

nal quotation marks omitted); see also Robertson v. Methow

Valley Citizens Council, 490 US 332, 350, 109 S Ct 1835, 104

L Ed 2d 351 (1989) (“If the adverse environmental effects of

the proposed action are adequately identified and evaluated,

the agency is not constrained by NEPA from deciding that

other values outweigh the environmental costs.”).

Cite as 370 Or 792 (2023) 815

Thus, identifying an “environmentally preferable”

alternative under NEPA does not mean that selecting that

alternative is a condition for approval, even for a federal

project. Without that condition, McAllister cannot show that

EFSC’s approval of the two alternative routes proposed by

Idaho Power results in inconsistency between state and fed-

eral regulatory review. It follows that Idaho Power was not

required to include the environmentally preferable alterna-

tive in its application, and ORS 469.370(13) did not require

EFSC to order Idaho Power to amend its application to

include that alternative.

McAllister also contends that EFSC effectively

denied him a fair process to advocate in favor of the Glass

Hill alternative. But as noted above, McAllister was able

to present his arguments in favor of the Glass Hill alter-

native during the public comment period and the contested

case proceedings. Idaho Power explained as part of the cor-

ridor selection assessment why it chose not to include the

Glass Hill alternative in its final application. And we have

addressed the merits of McAllister’s legal argument under

ORS 469.370(13). Under the circumstances, we do not agree

that McAllister has been denied a fair opportunity to pres-

ent his argument.

C. Gilbert’s Assignments of Error

1. First Assignment: Denial of Full Party Status

Gilbert appears to contend that EFSC was legally

required to grant her request for full party status. We

disagree, for the reasons stated above on Stop B2H’s first

assignment of error.

2. Second, Third, and Fourth Assignments: Impacts on

Historic Sites and Mitigation Efforts

These assignments of error all involve EFSC’s

treatment of historic sites. ORS 469.501(1) requires EFSC

to adopt standards addressing:

“Impacts of the facility on historic, cultural or archae-

ological resources listed on, or determined by the State

Historic Preservation Officer to be eligible for listing on,

816 Stop B2H Coalition v. Dept. of Energy

the National Register of Historic Places[21] or the Oregon

State Register of Historic Properties.”

ORS 469.501(1)(f). EFSC adopted those standards in OAR

345-022-0090,22 which includes a requirement that EFSC

“tak[e] into account mitigation” in determining whether the

facility is “likely to result in significant adverse impacts” on

those resources. “Mitigation” is defined in former OAR 345-

001-0010(33) (June 30, 2020).23

Gilbert contends in her second, third, and fourth

assignments of error that Condition 2 in EFSC’s final order

fails to comply with those statutory and regulatory require-

ments. That condition states:

21

The National Historic Preservation Act, 54 USC § 306108, defines “historic

property” as districts, sites, or buildings “included on, or eligible for inclusion

on, the National Register [of Historic Places].” 54 USC § 300308; see 54 USC

§ 300311 (defining “National Register”).

22

OAR 345-022-0090 provides, in pertinent part:

“(1) * * * [T]o issue a site certificate, the Council must find that the con-

struction and operation of the facility, taking into account mitigation, are not

likely to result in significant adverse impacts to:

“(a) Historic, cultural or archaeological resources that have been listed

on, or would likely be listed on the National Register of Historic Places;

“(b) For a facility on private land, archaeological objects, as defined in

ORS 358.905(1)(a), or archaeological sites, as defined in 358.905(1)(c); and

“(c) For a facility on public land, archaeological sites, as defined in ORS

358.905(1)(c).”

23

Former OAR 345-001-0010(33) (June 30, 2020), now OAR 345-001-0010(22),

states:

“ ‘Mitigation’ means taking one or more of the following actions listed in

order of priority:

“(a) Avoiding the impact altogether by not taking a certain action or

parts of an action;

“(b) Minimizing impacts by limiting the degree or magnitude of the

action and its implementation;

“(c) Partially or completely rectifying the impact by repairing, rehabili-

tating or restoring the affected environment;

“(d) Reducing or eliminating the impact over time by preservation and

maintenance operations during the life of the action by monitoring and tak-

ing appropriate corrective measures;

“(e) Partially or completely compensating for the impact by replacing or

providing comparable substitute resources or environments; or

“(f) Implementing other measures approved by the Council.”

Cite as 370 Or 792 (2023) 817

“Historic, Cultural, and Archaeological Resources

Condition 2: Prior to construction of a phase or segment

of the facility, subject to confidential material submission

procedures, and based on 1) new survey data from pre-

viously unsurveyed areas and 2) the final design of the

facility, the certificate holder shall submit to [ODOE], the

State Historic Preservation Office (SHPO), and applica-

ble Tribal Governments, for review and [ODOE] approval

a final Historic Properties Management Plan (HPMP)

Attachment S-9 of the Final Order on [the application for

the site certificate]. [ODOE] may engage its consultant to

assist in review of the HPMP. The certificate holder shall

conduct all construction activities in compliance with the

final [ODOE]-approved HPMP.”

Gilbert contends in her third assignment of error that EFSC

cannot approve a site certificate subject to ODOE’s future

review and approval of the HPMP, reasoning that EFSC

cannot make all the required findings when information is

to be developed in the future outside the record of the site

certificate approval proceedings.

That argument fails because ORS 469.402 expressly

authorizes EFSC to delegate future review and approval to

ODOE:

“If the Energy Facility Siting Council elects to impose

conditions on a site certificate or an amended site certif-

icate, that require subsequent review and approval of a

future action, the council may delegate the future review

and approval to the State Department of Energy if, in the

council’s discretion, the delegation is warranted under the

circumstances of the case.”

If EFSC “elects” to impose conditions that require

future review and approval and determines that delega-

tion of that action to ODOE is “warranted under the cir-

cumstances,” EFSC’s decision would be subject to review

for abuse of discretion. Gilbert’s third assignment of error

appears to suggest that EFSC abused its discretion because

Idaho Power did not survey some private properties that

it could have surveyed for impacts on historic sites.24 In

Gilbert’s view, delegating authority to ODOE to assess

24

Gilbert acknowledges that Idaho Power lacked legal authority to enter and

survey private property without the owner’s consent.

818 Stop B2H Coalition v. Dept. of Energy

the impacts on those properties in the future is an abuse

of discretion because impacts could (and should) have been

reviewed as part of EFSC’s site certificate approval proceed-

ings with full public participation.

Gilbert, however, does not identify any specific pri-

vate properties that Idaho Power failed to review even though

it had the legal authority to enter and survey during the site

certificate approval process. EFSC had statutory authority

to delegate that assessment to ODOE for future review. We

find no abuse of discretion under those circumstances.

In her fourth assignment of error, Gilbert contends

that EFSC erroneously allowed Idaho Power to use federal

standards for mitigating adverse environmental effects on

historic, cultural, and archaeological resources without

requiring it to meet more stringent state standards.25 We

disagree.

As noted above, former OAR 345-001-0010(33)

(June 30, 2020) lists acceptable forms of mitigation. The

final order prescribes in Table HCA-4b the specific types of

mitigation that EFSC required for this project: design mod-

ification (former OAR 345-001-0010(33)(b) (June 30, 2020)),

plus “at least one of the” mitigation methods found in former

OAR 345-001-0010(33)(c) - (e), “with a demonstrated direct

benefit to affected area (county of resource site),” and with

the priority of those additional mitigation methods fur-

ther specified. The final order also requires Idaho Power to

demonstrate that any mitigation efforts required by federal

“section 106 review”26 are sufficient to meet the state law

standards articulated in Table HCA-4b:

“Mitigation established through the federal Section 106

compliance review may be used to satisfy the EFSC miti-

gation requirement * * * if [Idaho Power] can demonstrate

that it addresses both the design modifications and the

25

The state contends that Gilbert failed to preserve her argument here, as

she did not raise it during the contested case proceeding. For purposes of this

opinion, we will assume without deciding that Gilbert sufficiently preserved the

issue.

26

“Section 106” refers to the review required by section 106 of the National

Historic Preservation Act, 54 USC § 306108, which requires agencies to “take

into account the effect of the undertaking on any historic property” for federal or

federally-funded projects.

Cite as 370 Or 792 (2023) 819

restoration; preservation and maintenance; or compensa-

tion mitigation within affected area (county), as included

in the below Table HCA-4b * * *. If not duplicated through

the federal Section 106 process, the applicant shall estab-

lish the scope and scale of Table HCA-4b mitigation, prior

to construction, subject to [ODOE] review and approval, in

consultation with SHPO, its consultants, or other entities

with expertise with historic trails.”

Thus, EFSC required Idaho Power to demonstrate that

the mitigation efforts it adopted to comply with federal law

would also satisfy state law.

Finally, Gilbert contends in her second assignment

of error that EFSC’s final order is insufficiently specific

regarding the impacts on historic sites and the appropriate

mitigation necessary for EFSC to “find that the construction

and operation of the facility, taking into account mitigation,

are not likely to result in significant adverse impacts” to

historic sites, OAR 345-022-0090(1).

EFSC’s final order contains specific information

identifying the resources that will be impacted, the extent

of those impacts, and how those impacts will be mitigated.

Table HCA-2 of the order identifies specific sites and explains

the mitigation measures for those sites. For example, one

site (number 35MW00227), described as an “Archaeological

Site—Road,” is not yet evaluated for eligibility for the

National Register of Historic Places, so the federal “section

106” review is not yet complete. Nevertheless, the table sets

out the following mitigation information:

“Avoid. Subsurface probing needed. If the Section

106 determination is eligible, applicant will avoid Site #

35MW227 as follows: Approved Route: For the structure

work area and pulling & tension site, applicant will relocate

or reduce the size of those areas to avoid Site # 35MW227;

for the existing road, all improvements will be made within

the existing road prism thereby avoiding any new impacts;

applicant will flag any portion of the boundary of Site #

35MW227 that occurs within 100 feet of construction activ-

ity. West of Bombing Range Road Alternatives 1 & 2: No

avoidance measures are necessary as there are no direct

impacts proposed for these alternatives.”

820 Stop B2H Coalition v. Dept. of Energy

Gilbert does not explain why that information would be

inadequate to support the findings required by OAR 345-

022-0090(1). She also does not identify any specific sites that

were omitted from the final order, or for which the proposed

mitigation is insufficient. We see no error in the final order

regarding the specificity of EFSC’s assessment of impacts

on historic sites and mitigation requirements.

3. Fifth Assignment: Whether EFSC Changed a Manda-

tory Site Certificate Condition Without Rulemaking

Gilbert contends in her fifth assignment of error

that EFSC changed a mandatory site certificate condition

without going through the required process to amend the

rule. OAR 345-025-0006 lists certain conditions that EFSC

“must impose * * * in every site certificate.” The mandatory

condition identified by Gilbert provides:

“Except as necessary for the initial survey or as other-

wise allowed for wind energy facilities, transmission lines

or pipelines under this section, the certificate holder may

not begin construction, as defined in OAR 345-001-0010,

or create a clearing on any part of the site until the certif-

icate holder has construction rights on all parts of the site.

For the purpose of this rule, ‘construction rights’ means the

legal right to engage in construction activities. For wind

energy facilities, transmission lines or pipelines, if the cer-

tificate holder does not have construction rights on all parts

of the site, the certificate holder may nevertheless begin

construction, as defined in OAR 345-001-0010, or create a

clearing on a part of the site if the certificate holder has

construction rights on that part of the site and:

“(a) The certificate holder would construct and oper-

ate part of the facility on that part of the site even if a

change in the planned route of a transmission line or pipe-

line occurs during the certificate holder’s negotiations to

acquire construction rights on another part of the site; or

“(b) The certificate holder would construct and operate

part of a wind energy facility on that part of the site even

if other parts of the facility were modified by amendment of

the site certificate or were not built.”

OAR 345-025-0006(5).

Cite as 370 Or 792 (2023) 821

Gilbert suggests that General Standard of Review

Condition 7 in EFSC’s final order is inconsistent with

the mandatory condition in the rule, so rulemaking was

required. Condition 7 provides:

“General Standard of Review Condition 7: The cer-

tificate holder may begin construction, as defined in OAR

345-001-0010(12), or create a clearing on a part of the site

if the certificate holder has construction rights on that part

of the site and the certificate holder would construct and

operate part of the facility on that part of the site even if

a change in the planned route of transmission line occurs

during the certificate holder’s negotiations to acquire con-

struction rights on another part of the site.”

EFSC’s final order explains that it modified the wording of

the rule in drafting General Condition 7 “to remove the lan-

guage of the condition that does not apply to transmission

lines and maintain the portion of the condition that would

apply to the facility.” Gilbert does not identify any substan-

tive difference between General Condition 7 and OAR 345-

025-0006(5), and we see none.27

III. CONCLUSION

Oregon law limits our review of EFSC’s final order

approving Idaho Power’s application for a site certificate for

the Boardman-to-Hemingway high voltage electricity trans-

mission line to errors of law, abuse of discretion, and sub-

stantial evidentiary support for factual findings. Applying

that standard, we conclude that EFSC did not err in any of

the ways contended by petitioners Stop B2H, McAllister, or

Gilbert.

The final order of the Energy Facility Siting Council

is affirmed.

27

Gilbert claims that the text of the mandatory condition was changed in

a footnote. Footnote 77, found on the same page of the final order as General

Condition 7, contains a redline/strikeout version intended to show the changes

between OAR 345-025-0006(5) and General Condition 7. Idaho Power acknowl-

edges that that redline/strikeout version erroneously shows OAR 345-025-

0006(5)(a) as being deleted.

The error was typographical and harmless. EFSC’s stated intent was not to

delete or change any substantive requirement of OAR 345-025-0006(5), and the

text of General Condition 7 does contain the substance of OAR 345-025-0006

(5)(a). Moreover, Idaho Power must comply with the text of General Condition 7

itself, not the explanatory version contained in an erroneous footnote.