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.