Oregon Supreme Court affirms state council's approval of B2H power line

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, co-chair of Stop B2H Coalition, 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.

Gilbert said in a phone interview on Friday morning, March 10, that although she’s disappointed with the court’s decision, “it isn’t a done deal.”

Gilbert said she believes B2H opponents might have opportunities to pursue legal challenges when Idaho Power seeks permission for the project through the Oregon Public Utility Commission.

“Stop B2H is not going away,” Gilbert said.

She said she feels that opponents are “fighting an uphill battle” and that the state’s process, through the siting council, precludes the public from having as much influence as it should have.

“The public really has never had an opportunity to see, comment on and object to plans that could affect public resources,” she said.

Morrison said in a phone interview Friday morning that she is “deeply disappointed but not really surprised by this outcome.”

Morrison said Oregon laws that govern the siting of transmission lines and other energy facilities were “created to benefit the industry. I don’t think they benefit the public.”

She believes the system in effect allows energy companies to “run” the Oregon Department of Energy. Morrison said companies such as Idaho Power contribute to the salaries of state employees involved in the process.

“That’s a crazy conflict of interest,” Morrison said.

She also noted that Idaho Power has employed two prominent attorneys from Portland to represent the company in the Supreme Court case.

“It’s really hard for individual Oregonians or a small organization like Stop B2H to compete with that kind of legal firepower,” Morrison said.

Among the issues that the petitioners raised, and the state Supreme Court analyzed:

Transmission line noise

In their ruling, the justices note that occasionally noise from the line would exceed limits set in a state administrative rule.

The siting council concluded it could grant both an exception and a variance to the noise standards for B2H.

Stop B2H Coalition argued that only the state Department of Environmental Quality (DEQ) can grant exceptions, and only the state Environmental Quality Commission (EQC) 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.”

Visual impacts

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 assessment 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.”