SALEM — The Oregon Supreme Court rejected arguments from opponents of the proposed Boardman-to-Hemingway power transmission line that a state siting council erred in approving the 290-mile project that crosses parts of Baker, Union, Umatilla, Morrow and Malheur counties.
The court’s decision, written by Justice Stephen Bushong and dated Thursday, March 9, affirms the September 2022 decision by the Oregon Energy Facility Siting Council.
That council granted Idaho Power Company, which is leading the project first proposed about 17 years ago, a site certificate. That permit allows the company to construct the power line, which Idaho Power officials contend would be a vital link to move electricity between the Pacific Northwest and the Intermountain West.
Idaho Power hopes to start building the transmission line in the second half of 2023.
The route, between Boardman and Hemingway, Idaho, would cross parts of the Grande Ronde, Baker and Durkee valleys.
Critics, including the Stop B2H Coalition, which filed one of the petitions the state Supreme Court panel considered, contend that the power line would cause a host of environmental problems, including increasing the risk of wildfires and contributing to the spread of noxious weeds.
Critics also have cited the visual effects of the power line towers, some of which could stand 180 feet tall, as well as noise from the transmission lines.
The court considered appeals from the Stop B2H Coalition as well as Irene Gilbert and Michael McAllister.
Attorneys for the Stop B2H and McAllister argued before the state Supreme Court on Jan. 18.
Anne Morrison, a La Grande attorney and Stop B2H member, also filed a legal brief, as did Gilbert.
Among the issues that the petitioners raised, and the state Supreme Court analyzed:
Transmission line noise
In their ruling, the justices note that noise from the line would occasionally exceed limits set in a state administrative rule.
The siting council concluded it could grant both an exception and an variance to the noise standards for B2H.
Stop B2H Coalition argued that only the state Department of Environmental Quality can grant exceptions, and only the state Environmental Quality Commission can approve variances.
The state Supreme Court concluded that because those two state agencies have “made it clear by rule” that neither would address exceptions or variances to noise standards, it would be “futile” for the siting council to have asked the agencies to address the issue regarding B2H.
Further, the justices determined “there was substantial evidence supporting the grant of an exception and variance” to the noise standards for B2H.
Stop B2H Coalition argued that based on studies, the transmission line would cause noise violations 48 days a year, which the group contends meets a state law definition of “unusual or infrequent,” and thus doesn’t qualify for an exception.
The justices, though, note that the siting council determined the transmission line would exceed noise standards on “less than two percent of the total hours in a year.”
The justices’ ruling notes that state law doesn’t require the siting council to use number of days, rather than percentage of total hours in the year, to determine whether the noise violations are “unusual or infrequent.”
Stop B2H Coalition argued that Idaho Power’s method for assessing whether the visual effects of the power line were significant, under state rules, was flawed because it didn’t consider viewers’ subjective perceptions.
The justices concluded that “nothing in the rule required Idaho Power to utilize a particular methodology or specifically account for subjective perceptions and reactions in assessing whether the transmission line would be likely to result in ‘significant adverse visual impacts’ to scenic resources. Moreover, as explained in the final order, the methodology used to assess the visual impacts of the transmission line did take viewers’ subjective perceptions into account.”
Glass Hill alternative route
McAllister argued that the siting council was required to consider this section of the route near La Grande, which the Bureau of Land Management, during an earlier review of B2H, picked as the “environmentally preferable” alternative.
Instead, Idaho Power’s final application, which the siting council approved, has two different possible routes in that area.
The state Supreme Court concluded that the siting council was not required to pick the environmentally preferable route.
Assessment effects on historic sites
Gilbert, in her appeal, argued that the siting council abused its discretion by deferring the survey of some properties, for potential effects on historic sites, to the Oregon Department of Energy (ODOE) rather than doing those surveys before issuing the site certificate last September.
The Supreme Court justices disagreed, writing that the siting council “had statutory authority to delegate that assessement to ODOE for future review. We find no abuse of discretion under those circumstances.”
Gilbert also contended that the siting council was wrong to allow Idaho Power to use federal standards to mitigate effects on historic, cultural and archaeological resources rather than more stringent state standards.
The justices concluded that the siting council had “required Idaho Power to demonstrate that the mitigation efforts it adopted to comply with federal law would also satisfy state law.”
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