SC Number:
CA Number:
Case Title:
The Blue Mountain Alliance v. Energy Facility Siting Council
03:00 PM
Supreme Court Courtroom
Daniel H. Kearns on behalf of The Blue Mountain Alliance, Norman Kralman, Richard Jolly, Dave Price, Robin Severe, and Cindy Severe
Michael Casper on Behalf of Energy Facility Siting Council
James N. Westwood on behalf of Site Certificate Holder Helix Windpower Facility
Statement of Issues:
The Blue Mountain Alliance v. Energy Facility Siting Council (S060803)

The Blue Mountain Alliance et al v. Energy Facility Siting Council et al (S060803) (petition for judicial review of Final Order of the Energy Facility Siting Council, dated August 24, 2012).

On judicial review of a Final Order issued by the Energy Facility Siting Council (EFSC), approving "Amendment #2" to a site certificate previously issued and held by Helix Wind Power Facility LLC. The certificate, as amended, approves a new wind energy facility in unincorporated Umatilla County, approximately nine miles northwest of Helix Oregon, and permits up to 134 wind turbines on more than 20, 000 private acreage.

On judicial review, the issues are:

(1) How the "goal-post" rule set out in ORS 469.504(1)(b)(A), which provides for application of site-certification criteria including local "land use regulations * * * in effect on the date the application is submitted" applies to Amendment #2, as to an ordinance adopted after the application date, but before the execution date, requiring a two-mile residential setback for wind energy facilities (Ordinance 2012-04).

(2) Whether ORS 469.401(2), which provides for required compliance in a site certificate with local "public health and safety" regulations in effect as of the certificate's execution, required Amendment #2 to include a condition requiring compliance with Ordinance 2012-04.

(3) Whether EFSC abused its discretion in not including in Amendment #2 a condition requiring compliance with Ordinance 2012-04, in light of further wording in ORS 469.401(2), providing that a site certificate condition may require compliance with a "later-adopted" law or rule, upon a clear showing of a "significant threat to the public health [or] safety."

(4) Whether petitioners raised "significant issues of law and fact" under OAR 345-027-0070(7), such that EFSC should have granted their requests for a contested case hearing, regarding Amendment #2.

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Merit Briefs

Last Revised: 01/07/2013