Umatilla County v. Dept. of Energy

194 April 18, 2024 No. 10

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Application for Site Certificate

for the Nolin Hills Wind Power Project.

UMATILLA COUNTY,

Petitioner,

v.

OREGON DEPARTMENT OF ENERGY,

Energy Facility Siting Council,

and Nolin Hills Wind, LLC,

Respondents.

(SC S070517)

En Banc

On judicial review of a final order of the Energy Facility

Siting Council.*

Argued and submitted January 11, 2024.

Wendie L. Kellington, Kellington Law Group, PC, Lake

Oswego, argued the cause and filed the brief for petitioner

on review Umatilla County.

Kate E. Morrow, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondents on

review Oregon Department of Energy and Energy Facility

Siting Council. Also on the brief were Ellen F. Rosenblum,

Attorney General; Benjamin Gutman, Solicitor General;

and Jona J. Maukonen, Assistant Attorney General.

Rachel C. Lee, Stoel Rives, LLP, Portland, argued the

cause and filed the brief for respondent on review Nolin

Hills Wind, LLC.

Daniel Kearns, Reeve Kearns PC, Portland, filed the

brief for amici curiae Morrow County and The Eastern

Oregon Counties Association.

______________

* Judicial review of a final order of the Energy Facility Siting Council issued

August 31, 2023.

Cite as 372 Or 194 (2024) 195

Daniel Kearns, Reeve Kearns PC, Portland, filed the

brief for amicus curiae Blue Mountain Alliance.

GARRETT, J.

The final order of the Energy Facility Siting Council is

affirmed.

196 Umatilla County v. Dept. of Energy

GARRETT, J.

Umatilla County seeks judicial review of a final

order of the Energy Facility Siting Council (the council) that

granted a site certificate allowing Nolin Hills Wind, LLC,

to construct a wind energy facility in the county. This case

comes to us on direct review of the council’s final order. See

ORS 469.403(3) (providing for direct review by this court

in such cases). The proposed facility includes, among other

things, wind turbines, energy-transmission lines, and other

related or supporting facilities. Umatilla County challenges

the council’s final order on the ground that the council

should have required Nolin Hills to comply with a siting

criterion—a two-mile setback between any turbine and a

rural residence—that the county had recommended to the

council under ORS 469.504(5). For the reasons set out below,

we agree with the council that it has authority under ORS

469.504(1)(b)(B) to approve Nolin Hills’s proposed energy

facility notwithstanding the facility’s failure to comply with

that siting criterion. We therefore affirm the council’s final

order.

I. BACKGROUND

A. Brief Overview of the Dispute

As we will explain, state law sets out a complex

framework that governs the council’s approval of a site cer-

tificate. That framework makes the council responsible for

the final determination whether a proposed facility complies

with legal requirements and may be approved. However, it

also provides a role for local governments, a role that includes

recommending “applicable substantive criteria” (which we

will explain later in this opinion) that bear on the coun-

cil’s determination. Central to this case is precisely what

role those applicable substantive criteria play—specifically

whether, in this case, as the county contends, those applica-

ble substantive criteria should have been given dispositive

effect, or whether, as the state respondents1 contend, the

council was authorized to approve Nolin Hills’s application

despite its failure to comply with all of those criteria. Two

1

The council and the Department of Energy jointly filed an answering brief.

They refer to themselves as the state respondents, and we do the same in this

opinion.

Cite as 372 Or 194 (2024) 197

subsidiary questions are presented by the parties’ argu-

ments. One is whether—assuming that the proposed facil-

ity is required to comply with the “applicable substantive

criteria” recommended by the county—the two-mile setback

requirement qualifies as one of those criteria. The state

respondents argue that it does not. The other is whether

the proposed facility passes through more than three land

use zones. If it does, then it is undisputed that the council

was authorized to approve the site certificate without con-

sidering the applicable substantive criteria at all. As we

will explain, we conclude that the council was authorized

to approve Nolin Hills’s site certificate even if the proposed

facility does not pass through more than three land use

zones and even if it does not comply with all of the county’s

recommended substantive criteria. That conclusion obviates

the need for us to resolve those two subsidiary issues.

B. The Council Generally

The council is an independent body composed of

seven volunteers appointed by the Governor and confirmed

by the Senate. ORS 469.450. The council works hand in

hand with the Department of Energy (DOE), which is

charged with implementing the state’s energy goals and

policies. ORS 469.030. Although it is the council that ulti-

mately issues the site certificate, each entity plays a role in

the energy facility siting process.

As we recently explained in Friends of Columbia

Gorge v. Energy Fac. Siting Coun., 368 Or 123, 125, 486 P3d

787 (2021), “[t]he council oversees the development of large

energy facilities in Oregon, including electric power gener-

ating plants, high-voltage transmission lines, gas pipelines,

and radioactive waste disposal sites, among other projects.”

See ORS 469.470 (listing powers and duties of the council);

ORS 469.501 (requiring the council to adopt standards for

siting, construction, operation, and retirement of energy

facilities2); ORS 469.300(11)(a) (defining “energy facility”).

The council carries out that task by issuing site certificates

to developers. See ORS 469.320(1) (“[N]o facility shall be

constructed or expanded unless a site certificate has been

2

Those standards are adopted as DOE regulations. OAR chapter 345, divi-

sions 22-26.

198 Umatilla County v. Dept. of Energy

issued for the site.”); ORS 469.503 (setting out requirements

for the council’s issuance of site certificate). To issue a site

certificate, the council must find, among other things, that

the proposed facility “complies with the statewide planning

goals adopted by the Land Conservation and Development

Commission.” ORS 469.503(4).

A site certificate authorizes the holder to construct,

operate, and retire a facility on an approved site, subject to

the conditions that the council includes in the certificate. ORS

469.401(1); see ORS 469.300(26) (defining “site certificate”).

To obtain a site certificate, an applicant first submits to the

council a Notice of Intent to apply for a site certificate. ORS

469.330(1). DOE then issues a project order that identifies all

statutes, administrative regulations, and other requirements

that the applicant must satisfy to obtain the site certificate.

ORS 469.330(3). The applicant submits its evidence of compli-

ance with all project order requirements to the council in an

Application for Site Certificate. See ORS 469.350(1) (requir-

ing applicants to submit their application to the council).

DOE reviews the application, and, if the agency

determines that an application is complete, it issues a draft

proposed order, which triggers a period for public comment.

See ORS 469.350(4) (requiring DOE to notify applicant

when application is complete); ORS 469.370(1), (2) (requir-

ing DOE to prepare a draft proposed order and the coun-

cil to hold one or more public hearings as necessary). After

reviewing the public comments, DOE issues a final proposed

order recommending approval or rejection of the applica-

tion. ORS 469.370(4). The council then conducts a contested

case hearing on the application before an administrative

law judge (ALJ). ORS 469.370(5). Only issues raised with

sufficient specificity in the public comments may be raised

in the contested case. ORS 469.370(3), (4). The ALJ issues

a proposed contested case order, to which the parties may

take exception. OAR 345-015-0085. The council then issues

a final order approving or denying the application for a site

certificate. ORS 469.370(7); OAR 345-015-0085(7), (8). Any

party to the contested case may seek review in this court of

the council’s decision approving or rejecting the site certifi-

cate. ORS 469.403(2), (3).

Cite as 372 Or 194 (2024) 199

C. Historical Facts

In September 2017, Nolin Hills filed a Notice of

Intent to file an application for a site certificate for a pro-

posed 350-MW wind energy facility, along with related or

supporting facilities, including a 230-kV transmission line,

to be located on approximately 44,900 acres in Umatilla

County. The proposed wind facility and the transmission

line as described in the Notice of Intent would be entirely on

land that is zoned for exclusive farm use (EFU). The Notice

of Intent stated that the wind energy transmission line

would connect the wind facility to the proposed Bonneville

Power Administration (BPA) Stanfield Substation, located

about eight miles north of the “site boundary”—the outer

perimeter of the acreage comprising the proposed facility.3

That proposed transmission line would span 18 miles and is

referred to as the “BPA Stanfield Route.” The BPA Stanfield

Route also would be entirely on EFU land.

After Nolin Hills filed its Notice of Intent, DOE

asked Umatilla County’s Board of Commissioners (county

board) to recommend “applicable substantive criteria”—a

set of local land use rules and regulations to be used by

the council to evaluate Nolin Hills’s eventual application.4

3

The term “site boundary” is defined in OAR 345-001-0010(31) and means

“the perimeter of the site of a proposed energy facility, its related or supporting

facilities, all temporary laydown and staging areas and all corridors and micros-

iting corridors proposed by the applicant.”

4

ORS 469.504(5) provides that, on request by DOE, the “special advisory

group established under ORS 469.480” shall recommend to the council the “appli-

cable substantive criteria” that will be used to evaluate a proposed facility. ORS

469.480 does not expressly define the term “special advisory group,” but ORS

469.480(1) requires the council to “designate as a special advisory group the

governing body of any local government within whose jurisdiction the facility

is proposed to be located.” Umatilla County had designated its county board as

the special advisory group. The “applicable substantive criteria” that the special

advisory group must recommend to the council are approval criteria based on

“the affected local government’s acknowledged comprehensive plan and land use

regulations that are required by the statewide planning goals.” ORS 469.504(1)

(b)(A); see also OAR 345-022-0030(3) (providing same definition of “applicable

substantive criteria”). “Acknowledgment” is defined in ORS 197.015(1) to mean

that the Land Conservation and Development Commission [LCDC] has issued

an order certifying that a comprehensive plan and land use regulations complies

with the “goals,” which, in turn, is defined in ORS 197.015(8) to mean “the manda-

tory statewide land use planning standards adopted by [LCDC] pursuant to ORS

chapters 195, 196, 197 and 197A.” In addition, OAR 345-015-0180(4)(b)(A) defines

the phrase “applicable substantive criteria” to mean “the criteria and standards

200 Umatilla County v. Dept. of Energy

The county board then timely recommended that the coun-

cil apply several Umatilla County land use ordinances as

applicable substantive criteria, including, as relevant here,

Umatilla County Development Code 152.616(HHH)(6)(a)(3),

which requires a two-mile setback between any wind tur-

bine and rural residence on EFU-zoned land. The county

had adopted that ordinance pursuant to ORS 215.283(2)(g),

which allows the county to conditionally approve commer-

cial utility facilities as non-farm uses on EFU-zoned land.

The county board designated that ordinance as “Criterion

3” in its list of recommended applicable substantive criteria.

In February 2020, Nolin Hills submitted to DOE

a preliminary application for a site certificate for the pro-

posed wind energy facility and related facilities. That pro-

posal was identical in all material respects to the proposal

set out in the Notice of Intent. In November 2020, however,

Nolin Hills submitted a revised preliminary application

that increased the size of the facility to about 48,000 acres

and added several additional features, including, as perti-

nent here, an alternative energy transmission route (that

is, an alternative to the BPA Stanfield Route).5 The alterna-

tive route, referred to as the Umatilla Electric Cooperative

(UEC) Cottonwood Route, would connect the wind facility to

the BPA transmission system via transmission lines to the

UEC Cottonwood Substation. The UEC Cottonwood Route

would span about 25 miles (seven miles longer than the BPA

Stanfield Route). Whereas the BPA Stanfield Route would

be located entirely on EFU land, the UEC Cottonwood Route

would be located mostly on EFU land with small segments

in two other land-use zones: Light Industrial (0.4 mile) and

Rural Tourist Commercial (0.3 mile). In addition, part of the

total acreage within the site boundary associated with the

UEC Cottonwood Route is located within a fourth zone—

Agri-Business (0.35 acre).

The county board provided timely comments on the

preliminary application, asserting that the proposed facil-

ity does not comply with all of the applicable substantive

that the local government would apply in making all land use decisions neces-

sary to site the proposed facility in the absence of a Council proceeding.”

5

The revised application also included solar energy facilities.

Cite as 372 Or 194 (2024) 201

criteria. Specifically, the county board objected that the

facility would not comply with Criterion 3 because several

of the proposed wind turbine locations would be within two

miles of numerous rural residences. Nolin Hills then sub-

mitted a second revised preliminary application; that pro-

posal also did not comply with Criterion 3, which the county

board pointed out in its comments.

In January 2022, Nolin Hills submitted its applica-

tion. The application did not comply with Criterion 3, as it

continued to include wind turbines that were less than two

miles from rural residences. DOE issued a draft proposed

order recommending that the council find that the proposed

facility complies with all applicable requirements. The draft

proposed order acknowledged that the facility would not

comply with Criterion 3, but it concluded that Criterion 3 is

not an “applicable substantive criterion.” It also stated that,

even if Criterion 3 were an applicable substantive criterion,

the council was authorized to approve the proposed facility

under ORS 469.504(1)(b)(B), so long as the council finds that

the project “otherwise compl[ies] with the applicable state-

wide planning goals.”

DOE then issued its final Proposed Order, in which

it found that the proposed facility complies with all applica-

ble substantive criteria. In so concluding, DOE determined

that Criterion 3 is not an applicable substantive criterion,

because, under ORS 469.504(1)(b)(A), applicable substantive

criteria are land use regulations that are “required by the

statewide planning goals,” and no statewide planning goal

requires a two-mile setback between a wind turbine and a

residence.

Alternatively, DOE stated, even if Criterion 3 were

an applicable substantive criterion, noncompliance with

that criterion would not be fatal to the application, because,

under ORS 469.504(5), if a proposed facility passes through

more than three land use zones, the council has the option

to evaluate the proposal against statewide planning goals

instead of the applicable substantive criteria.6 Noting that

Nolin Hills’s application included the possibility that the

facility would use the UEC Cottonwood Route, which, it

6

We set out and discuss the text of ORS 469.504(5) later in this opinion.

202 Umatilla County v. Dept. of Energy

stated, “passes through” more than three land use zones,

DOE concluded that the failure to comply with Criterion 3

was not dispositive.

Finally, DOE stated that, even if Criterion 3 were an

applicable substantive criterion as defined in ORS 469.504(1)

(b)(A), and even if the proposed facility does not pass through

more than three land use zones, the council could still

approve the proposed facility under yet another provision,

ORS 469.504(1)(b)(B), because the proposed facility otherwise

complies with the applicable statewide planning goals.7

Umatilla County objected to DOE’s Proposed Order.

The county argued that, contrary to DOE’s reasoning, the

UEC Cottonwood Route does not pass through more than

three land use zones; therefore, the applicable substantive

criteria govern. The county further argued that, contrary

to DOE’s reasoning, Criterion 3 was one of those applicable

substantive criteria. In the ensuing contested case proceed-

ing, Umatilla County, DOE, and Nolin Hills each moved for

summary determination. In May 2023, an ALJ issued a con-

tested case order denying Umatilla County’s motion, grant-

ing DOE’s and Nolin Hills’s motions, and proposing that the

council issue a final order granting Nolin Hills’s application.

In the contested case order, the ALJ determined that the

proposed facility complies with all applicable substantive

criteria. Like DOE, the ALJ concluded that Criterion 3 is

not an “applicable substantive criterion,” because the two-

mile setback required by the Umatilla County ordinance is

not specifically required by the statewide planning goals.

The ALJ further determined that, even if Criterion 3 were

applicable, the proposed facility otherwise complies with

applicable statewide planning goals.

The council issued its final order in August 2023.

The final order incorporated DOE’s Proposed Order and the

ALJ’s Contested Case Order, and it approved Nolin Hills’s

application.

7

ORS 469.504(1)(b)(B) allows the council to approve a proposed facility not-

withstanding its failure to comply with all applicable substantive criteria if the

council determines that the facility “does otherwise comply with the applicable

statewide planning goals, or that an exception” to the goals applies. We set out

and discuss the text of ORS 469.504(1)(b) later in this opinion.

Cite as 372 Or 194 (2024) 203

II. ANALYSIS

This court reviews final orders of the council for

errors of law, abuses of agency discretion, and lack of sub-

stantial evidence in the record to support challenged find-

ings of fact. See Friends of Parrett Mountain v. Northwest

Natural, 336 Or 93, 96, 79 P3d 869 (2003) (so stating); Save

Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 356,

121 P3d 1141 (2005) (same); ORS 469.403(6) (Supreme Court

review same as Court of Appeals’ review described in ORS

183.482); ORS 183.482(7), (8) (setting out those standards).

A. Statutory Framework

Before turning to the parties’ contentions on appeal,

we lay out the relevant statutes in detail.

ORS 469.503 sets out the requirements for approval

of energy facility site certificates:

“In order to issue a site certificate, the [council] shall deter-

mine that the preponderance of the evidence on the record

supports the following conclusions:

“(1) The facility complies with the applicable standards

[for facility siting, construction, operation, and retirement]

or 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.

“(2) * * * * * [8]

“(3) Except as provided in ORS 469.504 for land use

compliance and except for those statutes and rules for

which the decision on compliance has been delegated by

the federal government to a state agency other than the

council, the facility complies with all other Oregon statutes

and administrative rules identified in the project order, as

amended, as applicable to the issuance of a site certificate

for the proposed facility. * * *

“(4) The facility complies with the statewide planning

goals adopted by the Land Conservation and Development

Commission [LCDC].”

Only ORS 469.503(4) is at issue in this case. That is,

Umatilla County disputes only the council’s determination

8

Subsection (2) applies to fossil-fueled power plants and is not relevant here.

204 Umatilla County v. Dept. of Energy

that the proposed facility complies with statewide planning

goals notwithstanding its failure to comply with Criterion 3,

the county rule requiring a two-mile setback between wind

turbines and rural residences.

A different statute, ORS 469.504, sets out the cir-

cumstances under which a proposed facility “shall be found

in compliance” with statewide planning goals under ORS

469.503(4). Of the various subsections in ORS 469.504,

three are most relevant here: subsections (1), (4), and (5).

First, subsection (4) provides that an applicant for a site

certificate “shall elect whether to demonstrate compliance

with the statewide planning goals under [ORS 469.504(1)(a)

or ORS 469.504(1)(b)].” ORS 469.504(4). In other words, the

circumstances in which the proposed facility “shall be found

in compliance” depend initially on the applicant’s choice

between two alternative ways to proceed, which are set out

in subsection (1).

The first of those statutory alternatives, ORS

469.504(1)(a), provides that the council must find the pro-

posed facility to be in compliance with statewide planning

goals if “[t]he facility has received local land use approval

under the acknowledged comprehensive plan and land use

regulations of the affected local government.” In other words,

ORS 469.504(1)(a) allows the applicant to elect to demon-

strate that the proposed facility complies with local land use

requirements to the satisfaction of the local government, in

which case, if the applicant is successful, the council must

conclude that the facility complies with statewide planning

goals.

In this case, Nolin Hills did not seek local land use

approval under Umatilla County’s acknowledged compre-

hensive plan, and it did not elect to demonstrate compliance

under ORS 469.504(1)(a). Rather, it elected to demonstrate

compliance under the second statutory alternative, ORS

469.504(1)(b), which is considerably more complex.

When an applicant elects to demonstrate compli-

ance under ORS 469.504(1)(b), then the way in which the

council must proceed depends on the particular circum-

stances presented by the application. That statute provides

Cite as 372 Or 194 (2024) 205

that the proposed facility must be found in compliance with

statewide planning goals if the council determines that:

“(A) The facility complies with applicable substantive

criteria from the affected local government’s acknowledged

comprehensive plan and land use regulations that are

required by the statewide planning goals and in effect on

the date the application is submitted, and with any Land

Conservation and Development Commission administra-

tive rules and goals and any land use statutes that apply

directly to the facility * * *;

“(B) For an energy facility or a related or supporting

facility that must be evaluated against the applicable sub-

stantive criteria pursuant to subsection (5) of this section,

that the proposed facility does not comply with one or more

of the applicable substantive criteria but does otherwise

comply with the applicable statewide planning goals, or that

an exception to any applicable statewide planning goal is

justified under subsection (2) of this section; or

“(C) For a facility that the council elects to evaluate

against the statewide planning goals pursuant to subsec-

tion (5) of this section, that the proposed facility complies

with the applicable statewide planning goals or that an

exception to any applicable statewide planning goal is jus-

tified under subsection (2) of this section.”

ORS 469.504(1)(b) (emphases added). As explained in

greater detail below, the italicized terms are important to

the parties’ arguments in this case.

The third subsection relevant here is subsection (5),

which is cross-referenced in subparagraph (1)(b)(B), as set

out above. ORS 469.504(5) provides:

“Upon request by the State Department of Energy, the

special advisory group established under ORS 469.480

shall recommend to the council, within the time stated

in the request, the applicable substantive criteria under

subsection (1)(b)(A) of this section. If the special advisory

group does not recommend applicable substantive criteria

within the time established in the department’s request,

the council may either determine and apply the applicable

substantive criteria under subsection (1)(b) of this section

or determine compliance with the statewide planning goals

under subsection (1)(b)(B) or (C) of this section. If the special

206 Umatilla County v. Dept. of Energy

advisory group recommends applicable substantive criteria

for an energy facility * * * or a related or supporting facility

that does not pass through more than one local government

jurisdiction or more than three zones in any one jurisdiction,

the council shall apply the criteria recommended by the spe-

cial advisory group. If the special advisory group recom-

mends applicable substantive criteria for an energy facility

* * * or a related or supporting facility that passes through

more than one jurisdiction or more than three zones in any

one jurisdiction, the council shall review the recommended

criteria and determine whether to evaluate the proposed

facility against the applicable substantive criteria recom-

mended by the special advisory group, against the state-

wide planning goals or against a combination of the appli-

cable substantive criteria and statewide planning goals.

* * *”

(Emphases added.) Thus, subsection (5) concerns what the

council is required to do with the “applicable substantive

criteria” that may have been recommended by the “spe-

cial advisory group,” which, in this case, was the Umatilla

County board.

The county and the state respondents describe sub-

section (5) as containing different “tracks,” a term that we

adopt here.9

Track 1, the second sentence in subsection (5),

applies if the special advisory group does not timely recom-

mend applicable substantive criteria. In that situation, the

council “either” may determine the applicable substantive

criteria itself and apply those criteria, or it may “determine

compliance with the statewide planning goals under subsec-

tion (1)(b)(B) or (C).” Here, the special advisory group—the

Umatilla County board—timely recommended applicable

substantive criteria, so track 1 undisputedly does not apply.

9

We recognize that we are using the shorthand term “tracks” in this opin-

ion differently than did this court in Save Our Rural Oregon. In that case, the

court referred to the three subparagraphs in ORS 469.504(1)(b) as “tracks.” 339

Or at 363. However, there was no need to refer to those three subparagraphs

as “tracks” in Save Our Rural Oregon, because they are easily referred to and

identified by their citations. By contrast, the descriptions of the ways the council

is to use the applicable substantive criteria in the three circumstances set out in

ORS 469.504(5) are all part of one section and are not separately identifiable by

citation. For ease of reference, therefore, we refer to those three circumstances as

“tracks.”

Cite as 372 Or 194 (2024) 207

Track 2, the third sentence in subsection (5), applies

if the special advisory group timely recommends applicable

substantive criteria for a facility or a related or supporting

facility that does not pass through more than one jurisdic-

tion or more than three land use zones. In that circum-

stance, the council “shall apply” the special advisory group’s

recommended applicable substantive criteria.

Finally, track 3, the fourth sentence in subsection

(5), applies if the special advisory group recommends appli-

cable substantive criteria for an energy facility or related

or supporting facility that does pass through more than one

jurisdiction or more than three zones in any one jurisdic-

tion. In that circumstance, the council must review the rec-

ommended criteria and “determine whether” to evaluate the

proposed facility against the recommended criteria, against

the statewide planning goals, or against a combination of

the two.

In this case, the council evaluated Nolin Hills’s

application under ORS 469.504(1)(b)(A), concluding that

the proposed facility complies with all “applicable substan-

tive criteria from the affected local government’s acknowl-

edged comprehensive plan and land use regulations that are

required by the statewide planning goals.” As discussed, it

based that conclusion on its finding that, although the pro-

posed facility does not comply with Criterion 3, the two-mile

setback rule, that criterion is not an “applicable substantive

criterion” because it is not “required by the statewide plan-

ning goals.”

In addition, the council made “the separate and

alternative findings” that, even if Criterion 3 were an appli-

cable substantive criterion, “the facility meets the Land Use

standard under ORS 469.504(1)(b)(B) and ORS 460.504(5).”

The council went on to state that, as a first alternative basis

for approving the proposed facility, the council found that

track 3 applied because the UEC Cottonwood Route passes

through more than three land use zones, and therefore the

council was entitled to, and did, evaluate the proposed facility

against a combination of the applicable substantive criteria

and the statewide planning goals. In addition, as a second

alternative basis for its ruling, the council stated that it had

208 Umatilla County v. Dept. of Energy

evaluated the proposed facility under ORS 469.504(1)(b)(B),

which allows it to approve a proposed facility that does not

comply with all the local government’s applicable substantive

criteria if it “does otherwise comply with the applicable state-

wide planning goals.” The council considered all the state-

wide planning goals that it considered to be applicable to the

proposed facility, and it concluded that the proposed facility

did comply with them.

B. The Parties’ Arguments on Review

On review, the core of Umatilla County’s argument

is that the council erred in approving Nolin Hills’s appli-

cation because the proposed facility includes multiple wind

turbines that are less than two miles from rural residences

and thus does not comply with Criterion 3. That argument

has three main parts.

First, the county argues that the council erred in

concluding that Criterion 3 is not “required by the statewide

planning goals” and therefore is not among the “applicable

substantive criteria” that the council must consider under

ORS 469.504(1)(b)(A). The county asserts that Criterion 3

is a conditional land use standard that it adopted in con-

formance with Statewide Planning Goal 2, OAR 660-015-

0000(2). Among other things, Statewide Planning Goal

2 requires local governments to adopt a “land use plan-

ning process and policy framework” that would serve as a

“basis for all decision[s] and actions related to use of land.”

According to the county, Criterion 3 is a part of that frame-

work and addresses issues relevant to several statewide

planning goals, and, because Criterion 3 was adopted pur-

suant to Goal 2, it is “required by” Goal 2.

Second, the county argues that the council erred,

as a matter of fact and as a matter of law, in concluding

that the UEC Cottonwood Route “passes through” more

than three land use zones. That is important because, for

facilities that pass through more than three land use zones,

ORS 469.504(5) allows the council to evaluate the proposed

facility against the applicable substantive criteria, against

the statewide planning goals, or against a combination of

the two. As a result, the proposed facility’s failure to comply

Cite as 372 Or 194 (2024) 209

with Criterion 3 would not be a reason to deny the applica-

tion.

Third, Umatilla County argues that, because

Criterion 3 is an applicable substantive criterion, and

because the proposed facility does not pass through more

than three zones, the council was required to analyze Nolin

Hills’s application under track 2 in ORS 469.504(5). The

county argues that that is important because track 2 pro-

vides that the council “shall apply” the applicable substan-

tive criteria. In the county’s view, that wording means that

the council was required to apply Criterion 3 and must deny

Nolin Hills’s application for a site permit because the pro-

posed facility violates the two-mile setback requirement.

Put another way, Umatilla County contends that the stat-

utory directive in track 2 that the council “shall apply” the

local criteria necessarily means that, if the proposed facility

does not comply with the local criteria, then the council may

not approve the application.

The state respondents argue that, even if track 2 in

ORS 469.504(5) does apply for the reasons that the county

contends—that is, even assuming that Criterion 3 is one of

the applicable substantive criteria, and further assuming

that the proposed facility does not pass through more than

three zones—the council was nevertheless authorized to

approve the application under ORS 469.504(1)(b)(B). Again,

that provision applies when a proposed facility “must be

evaluated against” the applicable substantive criteria, and

it allows the council to approve a facility that does not com-

ply with all the applicable substantive criteria if the facility

“does otherwise comply with the applicable statewide plan-

ning goals.”

In response to that argument by the state respon-

dents, the county contends that ORS 469.504(1)(b)(B) applies

only to track 1—situations in which the special advisory

group does not recommend applicable substantive criteria to

DOE and the council then exercises its option to determine

applicable substantive criteria itself. Moreover, Umatilla

County argues, nothing in track 2 suggests that the leg-

islature intended for ORS 469.504(1)(b)(B) to override the

directive in track 2 that the council “shall apply” Umatilla

210 Umatilla County v. Dept. of Energy

County’s applicable substantive criteria. On that point, the

county argues that the state respondents’ interpretation of

ORS 469.504(1)(b)(B)—that it gives broad authority to the

council to grant a site certificate for a proposed facility that

falls within track 2, regardless of compliance with local cri-

teria—cannot be correct, because that would make it point-

less for ORS 469.504(5) to differentiate between proposed

facilities that pass through more than three land use zones

and those that do not: In each case, the council would be free

to disregard the proposed facility’s failure to comply with

all applicable substantive criteria and simply evaluate the

proposed facility against the statewide planning goals.

Although, as is apparent from the foregoing, the par-

ties dispute numerous points of law and fact in this appeal,

we conclude that it is unnecessary to resolve most of those

disputes. Specifically, we need not decide whether Criterion

3 is “required by the statewide planning goals” and is there-

fore an applicable substantive criterion; nor need we decide

whether the council erred as a matter of fact or of law in

concluding that the proposed facility passes through more

than three land use zones. That is because, even assuming

for purposes of this opinion that Umatilla County is correct

as to both those points—and that the council, therefore, was

required to evaluate the proposed facility under track 2 in

ORS 469.504(5)—we conclude that ORS 469.504(1)(b)(B)

authorized the council to grant Nolin Hills’s application for

a site permit for the proposed wind facility notwithstanding

the failure of the proposed facility to comply with Criterion 3.

C. ORS 469.504(1)(b)(B) Applies to Track 2 in ORS

469.504(5).

We review the council’s interpretation of ORS

469.504 for errors of law. In doing so, we attempt to dis-

cern the legislature’s intent by employing the framework

for statutory construction set out in State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009): We examine the text and

context of the relevant statute, and we consider legislative

history to the extent that we find it useful to our analysis.

ORS 469.504(1)(b)(B) confers broad authority on the

council. It provides that the council may approve a proposed

Cite as 372 Or 194 (2024) 211

facility if it determines that the facility “does not comply

with one or more of the applicable substantive criteria but

does otherwise comply with the applicable statewide plan-

ning goals, or that an exception to any applicable statewide

planning goal is justified under subsection (2) of this sec-

tion.” Thus, if that provision is applicable, the proposed facil-

ity need not comply with all local recommended criteria, and

it need not even comply with all statewide planning goals if

the council determines that an exception to a goal is justi-

fied. However, by its terms, that provision’s applicability is

limited to situations when “an energy facility or a related or

supporting facility * * * must be evaluated against the appli-

cable substantive criteria pursuant to [ORS 469.504(5)].”

(Emphasis added.) The statute thus appears to contemplate

that a situation may arise in which a proposed facility “must

be evaluated against” the applicable substantive criteria,

yet may still be approved even if it does not comply with one

or more of those criteria. According to the state respondents,

the statute means exactly that.

In response, Umatilla County argues that ORS

469.504(1)(b)(B) does not apply to this case, because this was

not a circumstance in which a facility “must be evaluated”

against the “applicable substantive criteria” pursuant to

ORS 469.504(5). The county makes several points in support

of that contention, none of which we find persuasive.

According to the county, the only time that the

council “must” evaluate the proposed facility against the

“applicable substantive criteria” is when track 1 applies—

i.e., when the special advisory group has not recommended

applicable substantive criteria and the council decides to

determine them itself. To repeat, track 1 provides:

“If the special advisory group does not recommend appli-

cable substantive criteria within the time established in

the department’s request, the council may either determine

and apply the applicable substantive criteria under subsec-

tion (1)(b) of this section or determine compliance with the

statewide planning goals under subsection (1)(b)(B) or (C)

of this section.”

ORS 469.504(5).

212 Umatilla County v. Dept. of Energy

We agree with the county that, if the special advi-

sory group has not timely recommended applicable substan-

tive criteria for a proposed facility and the council decides to

determine and apply them itself as allowed in track 1, that

is a situation in which the proposed facility “must be eval-

uated against the applicable substantive criteria” pursuant

to subparagraph (1)(b)(B). Indeed, this court said as much

in Save Our Rural Oregon. In that case, the special advisory

group did not timely recommend applicable substantive cri-

teria, and the council determined the local criteria itself by

looking at the local land use comprehensive plan and zoning

ordinances and directly applicable statutes and rules. 339

Or at 362-63. This court held that, once the council opted

to “determine and apply the applicable substantive criteria”

under track 1, “the facility was one that ‘must’ be evaluated

against the applicable substantive criteria [and therefore]

ORS 469.504(1)(b)(B) was an appropriate mechanism for

reviewing the proposed facility.” Id. at 368 n 10.

But it does not follow from Save Our Rural Oregon

that track 1 is the only circumstance in which the council

must evaluate a proposed facility against the applicable sub-

stantive criteria. The wording of track 2 arguably suggests

even more clearly a legislative intent to make ORS 469.504(1)

(b)(B) an “appropriate mechanism” for review. Again, track 2

states that, where a proposed facility does not pass through

more than three land use zones, the council “shall apply the

criteria recommended by the special advisory group.” ORS

469.504(5) (emphasis added). “Shall,” like “must,” is a word

denoting an obligation or a command. See Preble v. Dept. of

Rev., 331 Or 320, 324, 14 P3d 613 (2000) (“ ‘Shall’ is a com-

mand: it is ‘used in laws, regulations, or directives to express

what is mandatory.’ ” (Citation omitted.)); Stanley, Adm.

v. Mueller, 211 Or 198, 208, 315 P2d 125 (1957) (“Words or

phrases which are generally regarded as making a provision

mandatory, include ‘shall,’ and ‘must.’ ”). The phrase “shall

apply the [applicable substantive] criteria,” then, appears

to make the proposed facility one that “must be evaluated”

against the applicable substantive criteria.

Umatilla County argues that that is not correct,

because “evaluate” in ORS 469.504(1)(b)(B) means something

Cite as 372 Or 194 (2024) 213

different than “apply” in track 2. That is, Umatilla County

argues that, under track 2, the council is required to apply

the criteria, but evaluation is not required. The county does

not, however, explain how such a distinction could make

practical sense. Again, ORS 469.504(1)(b)(B) is triggered

when, under ORS 469.504(5), the council must evaluate the

proposed facility “against the applicable substantive crite-

ria.” It is difficult to understand how the council, acting pur-

suant to track 2, could “apply” the applicable substantive

criteria to a proposed facility without also evaluating the

proposed facility against those criteria, and the county does

not explain how that could be so.

Umatilla County also argues that applying ORS

469.504(1)(b)(B) to track 2 would make a nullity of the com-

mand in track 2 that the council “shall apply” the applicable

substantive criteria. That is, according to Umatilla County,

it does not make sense to interpret the statutory scheme in a

way that requires the council, acting pursuant to track 2, to

“apply” the substantive criteria, but then allows the council

to use ORS 469.504(1)(b)(B) to effectively disregard those

criteria by approving a project that does not comply with

them. That seeming anomaly, according to the county, is a

reason to conclude that ORS 469.504(1)(b)(B) does not apply

to track 2.

We disagree. The unspoken premise underlying

the county’s argument is that the requirement in track 2

that the council “shall apply” the recommended substan-

tive criteria means that a proposed facility must be rejected

if it does not comply with those criteria. That is a possible

interpretation of “shall apply,” but it is not the only plausi-

ble one. “Apply” means “to make use of as suitable, fitting,

or relevant” or “to put to use[,] esp. for some practical pur-

pose.” Webster’s Third New Int’l Dictionary 105 (unabridged

ed 2002). Under that ordinary meaning, one might “apply”

the applicable substantive criteria in evaluating a proposed

facility—meaning, “make use of” them by examining the

degree to which the facility is consistent with those crite-

ria—even if one may also approve a proposed facility that

does not comply with one or more of them. Contrary to the

county’s argument, such an interpretation does not render

214 Umatilla County v. Dept. of Energy

the local criteria irrelevant. Rather, it requires the council

to consider those criteria in determining whether to ulti-

mately approve a proposed facility.

Finally, the county points to two other land use stat-

utes, ORS 215.283(2)(g) and ORS 215.190, as context for its

interpretation of ORS 469.504(1)(b)(B). ORS 215.283(2)(g)

requires county approval of commercial utility facilities

for the purpose of generating power for public use on high-

value farmland in areas zoned for exclusive farm use.10 ORS

215.190 prohibits, among other things, construction of any

structure in violation of an ordinance or regulation.11 The

county argues that those statutes mean that a facility such

as Nolin Hills proposes can be approved only if it meets local

conditional use standards, and if the facility does not meet

those standards, the application must be denied. According

to Umatilla County, it follows that ORS 469.504(1)(b)(B)

cannot apply to track 2.

Again, we disagree. ORS 469.504(7) alleviates any

tension between ORS 469.504, on the one hand, and ORS

215.283(2)(g) and ORS 215.190, on the other. That subsec-

tion specifically contemplates council approval of a facility

that violates local land use rules:

“On or before its next periodic review, each affected local

government shall amend its comprehensive plan and land

use regulations as necessary to reflect the decision of the

council pertaining to a site certificate or amended site

certificate.”

ORS 469.504(7). In other words, if the council issues a site

certificate for a proposed facility that does not comply with

all of a local government’s land use regulations adopted

10

ORS 215.283(2)(g) provides:

“(2) The following nonfarm uses may be established, subject to the

approval of the governing body or its designee in any area zoned for exclusive

farm use * * *:

“* * * * *

“(g) Commercial utility facilities for the purpose of generating power for

public use by sale.”

11

ORS 215.190 provides:

“No person shall locate, construct, maintain, repair, alter, or use a build-

ing or other structure or use or transfer land in violation of an ordinance or

regulation authorized by [various land use statutes].”

Cite as 372 Or 194 (2024) 215

pursuant to ORS 215.283(2)(g) and ORS 215.190, including

those recommended as applicable substantive criteria in an

energy facility siting proceeding, the county must amend its

conflicting regulations to conform to the site certificate and

issue any permits necessary for the construction of the facili-

ty.12 Notably, nothing in subsection (7) limits its applicability

to proposed facilities approved under tracks 1 and 3.13 Once

the local government amends its regulations to conform to

the site certificate, there is no longer a conflict between a

site certificate and the local conditional use standards.

Our analysis thus far points to the conclusion that

ORS 469.504(1)(b)(B) applies to track 2 and that it autho-

rizes the council to issue a site certificate for a proposed

facility notwithstanding that the proposed facility does not

comply with all applicable substantive criteria, so long as it

“does otherwise comply with the applicable statewide plan-

ning goals.” That interpretation of the statute is consistent

12

As the council’s final order states, “[I]t is the [c]ounty that must amend its

comprehensive plans and regulations to be consistent with the [council’s] deci-

sion, not vice versa.”

13

We also observe that, if Umatilla County were correct that ORS 215.283(2)

(g) and ORS 215.190 mean that a proposed facility that does not comply with local

land use regulations must be denied, then it would not matter whether track 2

or track 3 applied, because the council would never be able to approve a proposed

facility that did not comply with all of the local government’s applicable sub-

stantive criteria. But the legislature has expressly authorized facilities to obtain

site certificates without the local governing body’s approval in ORS 469.504(1)

(b), and both ORS 469.504(1)(b)(B) and (C) clearly contemplate approval when

a facility does not comply with all applicable substantive criteria. As we have

discussed, ORS 469.504(1)(b)(B) does so expressly, but ORS 469.504(1)(b)(C) also

applies implicitly when a facility does not comply with all applicable substantive

criteria. That subparagraph applies when the council “elects to evaluate [a pro-

posed facility] against the statewide planning goals” and clearly applies to track

3, which applies to a proposed facility that passes through more than three land

use zones, because only track 3 gives the council that option. Track 3 requires the

council to review the recommended criteria and then determine whether to eval-

uate the proposed facility against the recommended criteria, against the state-

wide planning goals, or against a combination of the two. Obviously, if the council

chooses the first option—if it determines to evaluate the proposed facility against

the applicable substantive criteria—and it further determines that the facility

fully complies with the applicable substantive criteria, then the council can

approve the proposed facility under ORS 469.504(1)(b)(A). But ORS 469.504(1)

(b)(C) would apply both when the council elects to evaluate the proposed facility

under the statewide planning goals alone and when it elects to evaluate the facil-

ity against a combination of the applicable substantive criteria and the statewide

planning goals, having determined that the proposed facility does not comply

with all of the applicable substantive criteria.

216 Umatilla County v. Dept. of Energy

with the overarching goal of the energy facility siting pro-

cess: to ensure that energy facilities comply with Oregon’s

statewide planning goals. ORS 469.503(4). We disagree with

Umatilla County that that interpretation makes a nullity of

the different treatment in ORS 469.504(5) for proposed facil-

ities that pass through more than three land use zones and

those that do not. Rather, our interpretation reflects a leg-

islative intent to ensure that local government interests are

given robust consideration, while at the same time giving

the council ultimate decision-making authority to approve

proposed facilities that comply with statewide planning

goals.

D. The Legislative History Confirms Our Interpretation of

ORS 469.504.

The legislative history of ORS 469.503 and ORS

469.504 confirms, generally, our understanding that the leg-

islature intended, in ORS 469.504(1)(b), to provide a role for

local land use regulations in the energy facility siting pro-

cess while making clear that the council, and not the local

government, makes the ultimate determination whether to

issue a site certificate for a proposed facility.14 In particu-

lar, it confirms our understanding of the interrelationship

between ORS 469.504(1)(b)(B) and track 2, and it reveals

that, although ORS 469.504(5) provides in track 2 that the

council “shall apply” the local criteria, the legislature did

not intend to require compliance with all local criteria as

a prerequisite for issuance of a site certificate for facilities

evaluated under track 2.

The statutes setting requirements for approval of

energy facility site certificates and facility compliance with

statewide planning goals, ORS 469.503 and ORS 469.504,

began to take their present form in 1993. In that year, the

legislature repealed the list of standards, set out in former

ORS 469.500 and former ORS 469.510, that the council was

required to adopt governing the safety, siting, construc-

tion, and operation of thermal power plants and nuclear

14

As discussed, there is one exception: the council cedes its authority to the

affected local government when the applicant elects to demonstrate compliance

with the statewide planning goals by seeking approval from the local govern-

ment under its acknowledged comprehensive plan and land use regulations. ORS

469.504(1)(a), (4).

Cite as 372 Or 194 (2024) 217

installations, and it enacted new standards for the siting,

construction, operation, and retirement of “energy facili-

ties.”15 Or Laws 1993, ch 569, §§ 22-23. The 1993 bill, as

enacted, reflected the legislature’s overarching concern that

proposed facilities comply with statewide planning goals,

and it clarified the ways in which the council could make

that determination.16 Compare former ORS 469.503(1)(c)

(1993), renumbered as ORS 469.503(4) (1997) (to issue a site

certificate, the council shall determine by a preponderance

of the evidence that “[t]he facility complies with the state-

wide planning goals adopted by the Land Conservation

and Development Commission”), with former ORS 469.510

(1991), repealed by Or Laws 1993, ch 569, § 21 (containing no

provision regarding land use or statewide planning goals).

Like ORS 469.504(1)(a) and (b) today, former ORS

469.503 (1993) anticipated two types of circumstances in

which a proposed facility could or must be found in com-

pliance with statewide planning goals: where the applicant

had sought and received local land use approval for the pro-

posed facility, former ORS 469.503(2)(a) (1993), and where

the applicant had not sought local land use approval and

instead asked the council to make the determination, former

ORS 469.503(2)(b) (1993). Former ORS 469.503(2)(b) (1993),

in turn, set out two circumstances in which the council was

required to find that a proposed facility was in compliance

with the statewide planning goals: (1) when the proposed

facility complied with all the local government’s applicable

substantive criteria, as well as LCDC’s rules and goals and

any applicable land use statutes (former ORS 469.503(2)(b)

(A) and (B) (1993)), and (2) when the proposed facility “[did]

not comply with the applicable local government criteria,”

but the council found that the proposed facility did “other-

wise comply with the statewide planning goals,” (former

ORS 469.503(2)(b)(C) (1993)). Further, former 469.503(6)

15

The definition of “energy facility” covered more types of facilities than

merely thermal power plants and nuclear installations; it covered any electric

power generating plant with a generating capacity of 25 megawatts or more.

Former ORS 469.300(10) (1993). That definition is substantially identical to the

definition of “energy facility” set out in ORS 469.300(11)(a).

16

As enacted in 1993, the provisions of the statute that are analogous to

those found today in ORS 469.503 and ORS 469.504 all were found in former ORS

469.503 (1993).

218 Umatilla County v. Dept. of Energy

(1993) provided, “In accordance with subsection (2)(b) of

this section, the council shall apply the substantive crite-

ria recommended by the special advisory group.” (Emphasis

added.)

The original wording of former ORS 469.503(6)

(1993) shows that the council was required to “apply” the

local criteria in both circumstances set out in former ORS

469.503(2)(b) (1993)—it “shall apply” them. If the council

applied the local criteria and found that the proposed facil-

ity complied with them, then it was required to find that

the proposed facility was in compliance with the statewide

planning goals and approve the site certificate. However, it

also could approve the site certificate if it determined that

the proposed facility did not comply with the local criteria

but that it “does otherwise comply with the statewide plan-

ning goals.” Thus, former ORS 469.503 (1993) reflects not

only a legislative intent to allow the council to approve pro-

posed facilities that do not comply with the applicable sub-

stantive criteria, it also shows that the legislature intended

the phrase “shall apply” to be understood as we interpret

it here: The phrase directs the council to consider the local

criteria, but it does not require the council to reject a pro-

posed facility simply because it does not comply with a local

criterion.17

Nothing in the later amendments to that statute

suggests a different legislative intent. In 1995, the leg-

islature considered a bill to amend former ORS 469.503

(1993)—SB 951. As introduced, SB 951 would have allowed

the council to consider compliance with the statewide

planning goals without first considering compliance with

the local criteria. See Exhibit D, Senate Committee on

Agriculture, Natural Resources and Environment, SB 951,

April 10, 1995 (proposed amendments). Many stakeholders,

including DOE, opposed those amendments on the ground

that they would render local criteria unnecessary to the

17

This interpretation is consistent with the written statement of then-Sen-

ator Joyce Cohen, equating “applying” with “considering.” Senator Cohen stated

that, in the proposed amendments to former ORS 469.503 (1993), “we have made

sure that the local governments[’] comprehensive plans will be considered by the

Siting Council.” Exhibit A, House Committee on Natural Resources, SB 1016,

June 29, 1993 (accompanying testimony of Senator Joyce Cohen).

Cite as 372 Or 194 (2024) 219

council’s determination. See Exhibit H, Senate Committee

on Agriculture, Natural Resources and Environment, SB

951, Apr 10, 1995 (accompanying testimony of DOE Acting

Director John Savage) (opposing proposed amendments

because the bill would allow the council “to make a deter-

mination of consistency with statewide planning goals with-

out considering local government plans”); see also Exhibit F,

Senate Committee on Agriculture, Natural Resources and

Environment, SB 951, April 10, 1995 (accompanying tes-

timony of the council’s Vice Chair Terry Edvalson) (“[The

bill] allows developers to ignore local comprehensive plans

and zoning ordinances, and instead apply the broader state

land use goals to demonstrate land use compliance.”); Tape

Recording, Senate Committee on Agriculture, Natural

Resources and Environment, SB 951, Apr 10, 1995, Tape 71,

Side B (statement of Senior Staff Associate for the League of

Oregon Cities Jane Cummins) (the League of Oregon Cities

opposed “language which allow[ed] the local plan criteria to

be ignored”).

Ultimately, the legislature amended former ORS

469.503 (1993) to repeal former ORS 469.503(2)(b)(C) (1993)

and replace it with the following two subparagraphs:

“(C) For an energy facility or a related or supporting

facility that must be evaluated against the applicable sub-

stantive criteria pursuant to subsection (6) of this section,

that the proposed facility does not comply with one or more

of the applicable substantive criteria but does otherwise

comply with the applicable statewide planning goals, or

that an exception to any applicable statewide planning goal

is justified under subsection (3) of this section; or

“(D) For a facility that the council elects to evaluate

against the statewide planning goals pursuant to subsec-

tion (6) of this section, that the proposed facility complies

with the applicable statewide planning goals or that an

exception to any applicable statewide planning goal is jus-

tified under subsection (3) of this section.”

Or Laws 1995, ch 505, § 21. Those provisions are identical in

all material respects to the current statute, ORS 469.504(1)

(b)(B) and (C). In addition, the legislature amended former

ORS 469.503(6) (1993) to include two additional “tracks”

now present in ORS 469.504(5). That is, in addition to track

220 Umatilla County v. Dept. of Energy

1, which applies when the special advisory group does not

recommend applicable substantive criteria (and which was

already a part of former ORS 469.503(6) (1993)), former ORS

469.503(6) (1995) included the following:

“If the special advisory group recommends applicable sub-

stantive criteria for an energy facility * * * or a related or

supporting facility that does not pass through more than

one local government jurisdiction or more than three zones

in any one jurisdiction, the council shall apply the criteria

recommended by the special advisory group. If the special

advisory group recommends applicable substantive criteria

for an energy facility * * * or a related or supporting facil-

ity that passes through more than one jurisdiction or more

than three zones in any one jurisdiction, the council shall

review the recommended criteria and determine whether

to evaluate the proposed facility against the applicable

substantive criteria recommended by the special advisory

group, against the statewide planning goals or against

a combination of the applicable substantive criteria and

statewide planning goals.”

Or Laws 1995, ch 505, § 21. That wording is identical in all

material respects to the second and third tracks that now

appear in ORS 469.504(5). Notably, former ORS 469.503(6)

(1995) continued to provide that the council “shall apply”

the local criteria, although that directive was then limited

to circumstances in which the proposed facility did not pass

through more than one jurisdiction or more than three land

use zones in any one jurisdiction.

There is little explanation in the legislative history

as to why the legislature concluded that those particular

amendments were necessary.18 However, DOE did not object

18

The legislative history suggests that, in differentiating between pro-

posed facilities that pass through more than one jurisdiction or more than three

land use zones and those that do not, the legislature was attempting to address

“problems associated with the siting of transmission lines and pipelines that go

through multiple zones and multiple jurisdictions.” Exhibit B, Senate Committee

on Agriculture, Natural Resources and Environment, SB 951, Apr 10, 1995

(accompanying testimony of Margaret D. Kirkpatrick). Kirkpatrick explained

that, under current law, it was unclear how “multiple provisions of different zon-

ing ordinances and comprehensive plans come into play when you have a large

linear facility” that goes through multiple zones or jurisdictions. Tape Recording,

Senate Committee on Agriculture, Natural Resources and Environment, SB 951,

Apr 10, 1995, Tape 70, Side A. Tracks 2 and 3 appear to be a compromise that

requires the council to consider the applicable substantive criteria when the

Cite as 372 Or 194 (2024) 221

to the proposed amendments and, in a section-by-section

analysis of SB 951, explained that the proposed amendments

“allow the [council] to evaluate the land use impacts of a

facility under the statewide planning goals rather than

local land use criteria if: (i) the relevant local government

fails to provide [the council] with the applicable local cri-

teria; (ii) [the council] finds that one or more of the local

criteria are not met; or (iii) the facility passes through more

than one jurisdiction or more than three zoning districts in

one jurisdiction.”

Exhibit E, House Legislative Rules Committee, SB 951,

May 17, 1995 (DOE section-by-section analysis of SB 951).

In addition, in a memorandum submitted with that sec-

tion-by-section analysis, a lawyer for DOE stated that “[t]he

existing [land use] system is maintained, except that the

council is authorized—but not required—to apply the state-

wide land use goals directly (rather than applying the appli-

cable substantive criteria from the local government)” in

the three circumstances set out above. Id. (memorandum of

Assistant Attorney General Meg Reeves).19

The legislative history pertaining to the 1995

amendments, therefore, confirms that the legislature

intended to allow the council to apply the statewide plan-

ning goals rather than the local applicable substantive cri-

teria for a proposed facility that does not comply with one

or more of the applicable substantive criteria. In addition,

nothing in the legislative history suggests that the 1995 leg-

islature intended the phrase “shall apply” to have a differ-

ent meaning than it had in the 1993 version of the statute.

proposed facility does not pass through more than one jurisdiction or more than

three land use zones but allows the council to elect to apply only the statewide

planning goals for a facility that does pass through more than one jurisdiction or

more than three land use zones. However, the legislative history does not shed

light on precisely what the legislature intended in using the words “must be eval-

uated” in ORS 469.504(1)(b)(B) and “elects to evaluate” in ORS 469.504(1)(b)(C).

19

Subsequent amendments did not change the statute in any material way.

In 1997, the legislature moved the provisions governing the council’s determina-

tion of a proposed facility’s compliance with statewide planning goals, without

substantive change, from former ORS 469.503 (1993) to ORS 469.504. See Or

Laws 1997, ch 428, § 5; Exhibit F, Senate Livability Committee, HB 3283, May

13, 1997 (section-by-section analysis of HB 3283). ORS 469.504 was subsequently

amended in 1999, 2001, 2003, and 2005 in ways that do not affect our analysis of

this case.

222 Umatilla County v. Dept. of Energy

E. Umatilla County Has Not Shown that the Proposed

Facility Fails to Comply with the Applicable Statewide

Planning Goals.

We turn to address Umatilla County’s final argu-

ment: that the council erred in concluding that the proposed

facility “otherwise compl[ies] with the applicable state-

wide planning goals.” Umatilla County argues that Goal 2

applies to the proposed facility and “requires that all state

agency actions respecting land use comply with the compre-

hensive plans of local governments,” and that includes their

implementing ordinances. It follows, according to Umatilla

County, that the facility’s failure to comply with Criterion 3

necessarily means that it does not comply with Goal 2.20

The county’s argument is untenable. It is true

that Goal 2 states that, in general, state agency plans and

actions “shall be consistent with the comprehensive plans of

cities and counties.” OAR 660-015-0000(2). However, a dis-

tinct statutory scheme sets out the specific powers and obli-

gations of the council. Those powers include the authority

to take an exception to any of the statewide planning goals

when considering approving a proposed energy facility if the

council deems such an exception justified. ORS 469.504(1)(b)

(B), (C); ORS 469.504(2). Moreover, under ORS 469.504(6),

the council is expressly exempted from ORS 197.180(b),

which otherwise provides that state agencies shall “carry

out their planning duties, powers and responsibilities and

take actions that are authorized by law with respect to pro-

grams affecting land use * * * [i]n a manner compatible with

acknowledged comprehensive plans and land use regula-

tions.” Finally, ORS 469.504(7) provides that “each affected

local government shall amend its comprehensive plan and

land use regulations as necessary to reflect the decision of

the council pertaining to a site certificate or amended site

certificate.” Thus, it is the local government’s comprehensive

plan that must ultimately conform to a council siting deci-

sion—not the other way around. Taken together, those stat-

utes demonstrate that the legislature has devised a specific

20

Goal 2 is “[t]o establish a land use planning process and policy framework

as a basis for all decision[s] and actions related to use of land and to assure an

adequate factual base for such decisions and actions.” OAR 660-015-0000(2).

Cite as 372 Or 194 (2024) 223

plan for the siting of energy facilities that controls over the

more general requirements of Goal 2. Accordingly, we reject

Umatilla County’s argument that the council erred in con-

cluding that the proposed facility “does otherwise comply

with the applicable statewide planning goals.”

III. CONCLUSION

To summarize, based on our analysis of the text,

context, and legislative history of ORS 469.504(1)(b)(B)

and (5), we conclude that the legislature intended ORS

469.504(1)(b)(B) to apply to track 2. In other words, we con-

clude that, in enacting ORS 469.504(1)(b)(B), the legislature

intended to allow the council to evaluate a proposed facility

that does not pass through more than three land use zones

against a local government’s applicable substantive criteria

and to approve a site certificate for it even if the facility does

not comply with all of the applicable substantive criteria, if

it determines that the facility does otherwise comply with

applicable statewide planning goals. Thus, we conclude that

compliance with local land use regulations is one way for a

facility to demonstrate compliance with statewide planning

goals, but it is not the only way. If a facility does not com-

ply with all applicable local land use criteria, then, under

ORS 469.504(1)(b), compliance with the statewide planning

goals themselves is also a sufficient basis for the council’s

approval of a site certificate.

The final order of the Energy Facility Siting Council

is affirmed.