Washington Supreme Court Establishes Important Energy Siting Precedent

by Stoel Rives LLP

We’re very pleased to report on a significant energy siting victory achieved by our client SDS Lumber Co. and its subsidiary, Whistling Ridge Energy LLC, at the Washington Supreme Court yesterday. We believe the decision sets an important precedent for energy facility siting in Washington. The case is Friends of the Columbia Gorge, Inc. and Save our Scenic Area vs. State Energy Facility Siting Council and Governor Gregoire, et. al., No. 88089-1.

At issue was the approval of a wind energy project to be sited near the Columbia River Gorge National Scenic Area. Then-Washington Governor Christine Gregoire had approved the project in March 2012 following recommendation by the State of Washington's Energy Facility Site Evaluation Council (EFSEC). Two environmental groups, Friends of the Columbia Gorge, Inc. and Save our Scenic Area, then sued in an attempt to get the site approval overturned.

On August 29, 2013, the Supreme Court ruled there was "no basis" to reverse the EFSEC's recommendation or the Governor's approval, and dismissed the appeal. In so doing, the Court gave an unequivocal affirmation for an objective, criteria-based process for the approval of energy projects. The Court confirmed that it will defer to EFSEC and the Governor when the siting decision demonstrates consideration of the entire record and sound application of regulatory standards.

Stoel Rives represented Whistling Ridge Energy, LLC, throughout the three-year approval process, and prevailed in demonstrating the project's compliance with a host of federal, state and local regulatory standards. As the Court noted (quoting EFSEC), the comprehensive approval process "set a record for length, volume, and number of issues addressed." We subsequently represented Whistling Ridge throughout the trial and appeals process.

Review of the Court’s Decision

In its ruling, the Court emphasized that EFSEC operates in “unique statutory framework,” with the legislature granting much discretion to both EFSEC and the Governor. EFSEC conducts the project review process, based on statutory and regulatory standards, and makes a recommendation to the Governor. The framework “requires the involvement of various stakeholders, including environmental groups, throughout the process, and in EFSEC’s ultimate decision.” Further, the EFSEC statute is fundamentally based on the legislature’s recognition of the “importance of increasing the State’s energy output.” Consequently, the Court held that its review of EFSEC decisions will be deferential and “necessarily limited.”

The Court found that the opponents’ challenge focused on “technical” alleged deficiencies and an “extreme reading” of RCW Ch. 80.50 and EFSEC’s administrative rules, ignoring “the broader framework of the application process” and “misunderstand[ing] EFSEC’s role in balancing competing interests.” The Court found that the EFSEC application “is the starting point of a longer process,” where “specific decisions are addressed throughout the process.” Minor deficiencies in applications of the complexity of those involved in EFSEC proceedings “are to be expected and do not warrant reversal.” The Court added that “invalidation of the completed review and recommendation would also defeat the purpose of extended hearings and ongoing oversight of the project.”

The opponents further contended that EFSEC failed to render a final decision regarding Whistling Ridge’s voluntary offer to conserve a mitigation parcel to address potential wildlife impacts, contending that EFSEC lacked authority to defer consideration of this offer. The Court brushed aside the opponents’ attack on this issue, finding that “would be impractical” to achieve complete resolution of all mitigation issues “in the planning stage” due to the “complicated nature of [EFSEC] projects and the likelihood that additional issues will arise later.” Finding that EFSEC has the discretion to seek public comment and conduct adjudications later, if necessary, the Court dismissed this and similar issues as being “not ripe” for resolution.

Finally, breathing additional life into its prior holding in Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 197 P.3d 1153 (2008), the Court punctuated EFSEC’s authority to preempt conflicting regulations in order to allow energy facilities to move forward. Without question, projects like Whistling Ridge which are allowed by local zoning codes may be approved, notwithstanding alleged minor discrepancies with local comprehensive plans and other regulations. Moreover, locally adopted moratorium ordinances are subject to EFSEC’s preemptive authority, and may not interfere with EFSEC’s authority to approve energy facilities.

The Court found that the opponents could not prove that they were “substantially prejudiced” by the claimed (and unproven) “shortcomings,” holding that Whistling Ridge “substantially complied” with all of EFSEC’s regulatory standards. Reviewing a host of alleged deficiencies, the Court held that “EFSEC properly considered the conflicting evidence and made its recommendation in light of the entire record.” Consequently, the Court held that the opponents failed to meet their burden to prove error justifying reversal of Governor Gregoire’s decision.

The Right Decision Was Reached

We are pleased to have played our part in the evolution of the siting process, and we congratulate the EFSEC and the Governor for conducting open, public processes, where the “goal posts” are clearly and fairly defined for all parties, up front, and consistently throughout the siting process.

We also applaud our client for standing up against a significant environmental group challenge, and consistently “doing the right thing.” "The Siting Council, the Governor and now the state's Supreme Court have all recognized that this project is outside the National Scenic Area, and that all impacts have been appropriately mitigated," said Jason Spadaro, president of Whistling Ridge Energy, LLC. "We look forward to finally proceeding with the business of securing markets for our energy and creating local jobs."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP

Stoel Rives LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.