Gilbert / March v. Dept. of Energy: Jurisdiction and Contested Case Standards for Amending Energy Facility Site Certificates

Introduction

In Gilbert / March v. Department of Energy, 373 Or 289 (2025), the Oregon Supreme Court addressed the scope of judicial review and procedural requirements that apply when the Oregon Energy Facility Siting Council (“EFSC”) considers amendments to an existing site certificate for a high-voltage transmission line. Petitioners Irene Gilbert and Kevin March, both pro se, challenged EFSC’s decision to (1) deny their requests for contested case proceedings under OAR chapter 345, division 27, and (2) approve Idaho Power Company’s application to amend a previously granted site certificate. The transmission line at issue—the Boardman-to-Hemingway (“B2H”) project—had been the subject of the court’s earlier decision in Stop B2H Coalition v. Dept. of Energy, 370 Or 792, 525 P.3d 864 (2023). In Stop B2H the court affirmed EFSC’s original site certificate award and extensive bond and environmental conditions. Idaho Power later sought a second amendment to that certificate, expanding the “site boundary” without enlarging the authorized construction corridors. Petitioners claimed they were entitled to fresh contested case proceedings and that two substantive aspects of the amendment—the bond provisions and the boundary expansion—were legally defective.

Summary of the Judgment

The Supreme Court, in an opinion by Justice Bushong, consolidated three petitions and affirmed EFSC’s orders. The court held:

1. Jurisdiction: Under ORS 469.403(3), this court has exclusive jurisdiction to review EFSC’s approval or rejection of an amended site certificate, including the denial of requests for contested case proceedings in that context.
2. Contested Case Proceedings: OAR 345-027-0371(9) requires a contested case only when an amendment “raises a significant issue of fact or law reasonably likely to affect” EFSC’s determination whether the amended facility meets applicable laws and standards. Petitioners failed to identify such an issue: Gilbert’s bond challenge concerned terms set in the original certificate, and neither petitioner pointed to any new factual or legal controversy regarding construction corridors or environmental compliance.
3. Bond Adequacy: Petitioners’ challenge to a nominal \$1 bond for 50 years of operation was untimely under ORS 469.403(3), as those bond conditions were fixed by the original certificate approved in Stop B2H and not changed by the amendment.
4. Site Boundary Expansion: The amendment expanded the “site boundary” but did not enlarge the micrositing corridors where construction may occur. Under OAR 345-001-0010(21) and (31), all construction remains confined to the previously approved corridors. Thus EFSC reasonably found no new surveys or contested case needed for environmental protections in areas outside those corridors.

Accordingly, EFSC’s order approving the amended site certificate and denying contested case proceedings was affirmed in full.

Analysis

Precedents Cited

• Stop B2H Coalition v. Dept. of Energy, 370 Or 792 (2023): The court’s own decision affirming EFSC’s original site certificate for the B2H transmission line, including bond requirements, environmental conditions, and micrositing corridors.
• Blue Mountain Alliance v. Energy Facility Siting Council, 353 Or 465 (2013): The Supreme Court addressed whether EFSC properly denied contested case requests when amending a wind‐facility certificate, implicitly confirming this court’s jurisdiction under ORS 469.403(3).
• Friends of Columbia Gorge v. Energy Facility Siting Council (Friends I), 365 Or 371 (2019): The court invalidated EFSC rules that improperly limited contested‐case access, and discussed the expedited “Type C” amendment review procedure.
• Friends of Columbia Gorge v. Energy Facility Siting Council (Friends II), 314 Or App 143 (2021), rev. den. 369 Or 338 (2022): A Court of Appeals decision on contested case jurisdiction in “other than contested cases,” which the Supreme Court distinguished in Gilbert / March.
• Save Our Rural Oregon v. Energy Facility Siting Council, 339 Or 353 (2005): Held that ORS 469.403 conferred jurisdiction to review EFSC’s final order even when rulemaking was improperly denied.

Legal Reasoning

The court’s reasoning can be summarized in four major pillars:

1. Supreme Court Jurisdiction: ORS 469.403(3) grants this court exclusive review of orders “approving or rejecting” site certificate amendments. A denial of a contested case in that context is part and parcel of the final approval or rejection and thus falls within this court’s exclusive remit.
2. Contested Cases Under OAR 345-027-0371: Division 27’s amendment procedure permits contested cases only when the amendment raises new, significant factual or legal issues. Petitioners’ bond critique merely re-litigated the original certificate’s financial assurance, and their environmental concerns concerned areas outside existing micrositing corridors—areas into which the amendment did not authorize construction.
3. Timeliness of Bond Challenge: Under ORS 469.403(3), challenges to financial conditions set in the original site certificate must be filed within 60 days of EFSC’s final order approving that certificate (or 30 days from denial of rehearing). Gilbert’s petition in Stop B2H already gave her an opportunity to contest the bond; her late attack in the amendment case is untimely.
4. Scope of Site Boundary and Micrositing Corridors: By statute (ORS 469.320(5)(b)) and OAR definition, a “site boundary” denotes the outer perimeter of all potential lands. Micrositing corridors define where construction may occur. The court held that expanding the boundary without expanding corridors does not permit new construction or relieve Idaho Power of pre-construction survey and protection requirements for watersheds and wildlife.

Impact

This decision cements several important principles in Oregon energy-facility siting law:

• Procedural Finality: Parties must raise all challenges to bond terms and construction corridors in their first review petition; they cannot re-open settled issues in later amendment proceedings.
• Clear Contested Case Standard: Only genuinely new factual or legal issues triggered by an amendment merit a contested case under OAR 345-027-0371. Minor boundary adjustments—without new construction rights—do not.
• Strict Boundary/Construction Distinction: Expanding the site boundary alone does not authorize construction; micrositing corridors remain the exclusive zones where future facilities may be built.
• Judicial Efficiency: By confirming exclusive Supreme Court review under ORS 469.403(3), the court avoids parallel circuit‐court proceedings and ensures uniform standards govern certificate amendments statewide.

Complex Concepts Simplified

• Site Certificate: The permit issued by EFSC under ORS 469.320 that authorizes the location, design, and operation of an energy facility in Oregon.
• Amendment Process (OAR 345-027-0351 et seq.): The administrative pathway parties follow when they seek to change an existing site certificate. It includes three “types” of review (A: full; B: expedited; C: truly expedited) depending on the nature and impact of the changes.
• Contested Case: An administrative hearing, akin to a trial, governed by the contested case provisions in ORS chapter 183 and OAR chapter 345, division 27. It is granted when the amendment raises significant, novel issues.
• Site Boundary vs. Micrositing Corridor: The site boundary is the broad perimeter of all potential areas involved in the project; micrositing corridors are the narrower strips where actual construction may occur. Only corridors matter for surveys and build-out rights.
• Bond or Letter of Credit: A financial assurance mechanism (secured by an approved financial institution) that ensures funding will be available to restore the site to safe, non-hazardous condition once operations cease.

Conclusion

Gilbert / March v. Dept. of Energy clarifies the interplay among ORS 469.403, OAR 345-027, and EFSC’s amendment process. It confirms that the Oregon Supreme Court has exclusive jurisdiction over certificate amendments; that contested cases are reserved for genuinely new, material issues; that bond terms set in the original certificate cannot be relitigated in amendment proceedings; and that boundary expansions alone do not confer new construction rights outside pre-approved corridors. The decision reinforces procedural finality, promotes judicial economy, and preserves strong environmental and financial safeguards in Oregon’s energy-facility siting regime.