Court decision could nullify Deschutes wind farm permit

“Our conclusion is that none of the amendments applied for since that 2017 date can be processed further since all are filed under invalid rules,” said Nathan Baker, senior staff attorney for Friends. “A state agency cannot apply invalid rules and certainly cannot approve projects under said invalid rules.”

The court agreed with the conservation groups that the siting council never decided how it would track the success of its new rules, a component required of agencies under state law.

The court also agreed that the new rules improperly limited who could appeal certain amended site certificates.

Baker said the ruling is expected to terminate the amendment application of Summit Ridge, owned by Pattern Energy, which had applied for an extension to its construction dates. The controversy surrounding Summit Ridge involved wildlife surveys deemed outdated by Friends, as well as risks to the environment and wildlife habitats.

Summit Ridge, which would have up to 72 wind turbines on 11,000 acres about 17 miles southeast of The Dalles and eight miles east of Dufur, was approved in 2009, but never proceeded because it didn’t have buyers for the power.

New owner Pattern Energy found a potential buyer, Puget Sound Energy, and had applied for extensions to a construction deadline.

“Nobody knows for sure whether Pattern will reapply,” said Baker. “But what we have observed since they purchased the project, they have put in minimal effort in proceeding with it. They haven’t updated wildlife surveys, have barely participated in hearings or public meetings over the last couple of years.

“It seems unlikely that they file a new application after 10 years since the initial application; if the project were worthwhile and viable, it would have been built.”

How state agencies will proceed is also unclear. In an email exchange between attorney Gary Kahn, who argued the case for the conservation groups, and Patrick Rowe, senior assistant attorney general for the Oregon Department of Justice, Kahn asked for confirmation that “all pending applications filed pursuant to the invalidated rules will not be processed any further, and will not be approved.”

Kahn asked for a response prior to the end of business day on Friday, Aug. 2, due to a Monday, Aug. 5 deadline to request a contested case in the Summit Ridge matter.

If the Oregon Department of Energy decides to continue processing the pending applications despite the Court’s decision, and their decision is made after the deadline, then no request for a contested case will be possible on Summit Ridge, though an appeal of the matter could still be pursued back to the Supreme Court.

Rowe’s response stated that the DOJ and ODOE had begun evaluating the Court’s decision and assessing how ODOE will handle applications currently being processed.

“We will not have completed that evaluation nor reached any decisions prior to the deadline for the second opportunity to request a contested case in the Summit Ridge Wind Farm matter,” wrote Rowe.

Pattern Energy responded in an email saying they have no comment on the matter.