Application of Portland General Electric Co.

(561 P.2d 154, 277 Ore. 447) (Or. March 3, 1977)

ELR Digest

Reversing the Oregon Court of Appeals, 25 Ore. App. 469, 550 P.2d 465, the Oregon Supreme Court holds that a private citizen is entitled to judicial review of a decision of the Energy Facility Siting Council and that the Council did not make proper findings regarding the citing of two nuclear power plants at Pebble Springs in Gillham County.The Energy Facility Siting Act, Ore. Rev. Stat. § 469.300 et seq., prohibits construction of energy facilities without a Council certificate and gubernatorial approval. The Council's responsibilities include selection and certification of sites and ensuring facility safety and security. Site certification is implemented by three procedures: general studies of site selection, designation after hearings of suitable site areas, and actions on specific site applications. The Council must establish standards for applicants to meet in terms of ability to finance, construct, and operate the facility.

Portland General Electric (PGE) filed its application for a site certificate in December 1972. Petitioners intervened in the proceedings before the Council in order to dispute issues concerning the dangers of nuclear power plants. The Council, with one dissent, recommended approval of a site certificate for the Pebble Springs project.

Judicial review in this case is governed by the Oregon Administrative Procedure Act, Ore. Rev. Stat. §§ 183.310-183.500, which provides for judicial review for any party to the agency proceeding or any person adversely affected or aggrieved by the agency order. Ore. Rev. Stat. § 183.480. Intervention in agency proceedings is allowed to persons with an interest in the proceedings or who represent a public interest. Ore. Rev. Stat. § 469.380. They need not represent an organized interest group nor is the term "public interest" geographically limited. The Council has discretion to determine whether an intervenor will properly represent an element of the overall public interest. An intervenor is not restricted to judicial review of only those issues he raised below. See Hennesey v. SEC, 285 F.2d 511 (3d Cir. 1961). Exhaustion of administrative remedies does not apply here where agency authority is in question. Sunshine Dairy v. Peterson, 183 Ore. 305, 193 P.2d 543 (1958).

Turning to the merits, the court holds that the Act requires the Council to set standards for site certification by rule, see Ore. Rev. Stat. §§ 469.470, 469.510, prior to consideration of individual applications. Rulemaking under the Administrative Procedure Act (APA) is used to establish general agency policy, while adjudication in contested case hearings is used to apply that policy. Policymaking choices demand procedures open to the assertion of viewpoints beyond those of the applicant and the agency staff. While rulemaking is preferred, this purpose may also be accomplished by allowing participants to intervene in a contested case to assert non-party views.

The Council has adopted "standards," but these are mostly phrased as requests for information. Ore. Admin. R. 345-25-001 to -049. The standards for financial ability are inadequate insofar as they request merely financial information, but are minimally sufficient in requiring an applicant to show access to funds for construction and operation. Moreover, the Council did not make a finding of financial ability as required by statute. Ore. Rev. Stat. § 183.470.

Similarly, the Council has merely requested information on an applicant's qualifications to construct a facility. It cannot rely on federal regulations for nuclear power plant construction but must itself establish standards. As to power needs, the Council incorrectly equates power "need" with power "demand" in this instance; such a judgment must be decided by one of the policymaking procedures outlined previously.

Finally, many of the Council's findings are mere recitals of evidence rather than findings of ultimate facts as required by Ore. Rev. Stat. § 183.470. See Weight v. Insurance Comm'r, 252 Ore. 283, 449 P.2d 419 (1969).

The case is reversed and remanded to the Council to redefine its standards, some of which may be developed in the course of the proceedings, and to make revised findings under these standards and the record.

Justice Bryson, dissenting, argues that it is reasonable to conclude that an intervenor's right to challenge a final order is limited to the scope of his intervention. There is nothing incongruous about allowing persons persons "aggrieved or adversely affected" by agency action to seek a broader judicial review than may a limited intervenor. Otherwise, standing is granted to agency proceedings participants who would ordinarily lack standing under the APA. Also, simple fairness demands that participants raise issues before the administrative agency prior to seeking judicial review of those issues. United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952). Delay through litigation should not be sanctioned when part of the public interest lies in speedy and efficient administrative decisions. Where complex energy matters are involved, the court should exercise restraint in usurping powers properly belonging to other branches of government.

The full text of this opinion is available from ELR (21 pp. $2.75, ELR Order No. C-1118).

Counsel for Petitioner Lloyd K. Marbet
William L. Hallmark
Jones, Lang Klein, Wolf & Smith
One Southwest Columbia, Portland OR 97258
(503) 222-4422

Counsel for Respondent Energy Facility Siting Council
R. Lee Johnson, Attorney General; W. Michael Gillette, Solicitor General; Richard M. Sandrik, Ass't Attorney General
Department of Justice, Salem OR 97301
(503) 378-6002

Counsel for Respondent Portland General Electric Co.
David N. Hobson
Phillips, Coughlin, Buell, Stoloff & Black
121 SW Salmon St., Portland OR 97204
(503) 226-8883

Linde, J., joined by Denecke, C.J., Holman, Tongue, Lent & Bradshaw, JJ.; Bryson, J., dissents.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]