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Story By MATEUSZ PERKOWSKI - Capital Press - Story Source
Published on Tuesday April 20, 2021 - 9:19 AM

SALEM — The legal question of whether a solar facility qualifies as a "rural industrial development" may decide the fate of an 80-acre project in Oregon's Jackson County.

Last year, the Oregon Court of Appeals ruled the solar array was wrongly approved under an "exception" to the statewide goal of preserving farmland that allows for certain industrial developments.

A subsidiary of solar developer Origis Energy is now asking the Oregon Supreme Court to overrule that decision, arguing the project does fit the definition of an "industrial development" under land use law.

"The manufacture of electricity is the production of goods," said Josh Newton, attorney for the solar company. "There is nothing in the record, there is nothing in the rules that says electricity is not a good."

Energy is a commodity that's bought, sold and moved over transmission lines, Newton said during recent oral arguments in Salem. "Electricity is a physical thing. You know it when you feel it."

When asked by Chief Justice Martha Walters whether a solar facility is eligible for "industrial" status even though it doesn't generate many jobs, Newton said that shouldn't be a consideration.

"The common definition of industry does not include any employment level," he said.

The Oregon land use goal of conserving energy also supports the project's approval by county officials, since renewable energy can substitute for electricity generated by non-renewable sources, he said.

Land use regulations intend to provide an opportunity for solar projects to be sited in farm zones when the benefits are found to outweigh the costs, he said.

Without the "exceptions" related to industrial development or energy conservation, developers would lack a pathway to build larger solar arrays on farmland, Newton said.

"What is left to the solar project developer?" he asked.

However, Oregon's goal of energy conservation does not require the building of renewable energy facilities, said Denise Fjordbeck, attorney for the Oregon Department of Agriculture and Department of Land Conservation and Development.

"What's happening here is development, it's not conservation," Fjordbeck said.

Under Oregon's land use law, "terms of art" define specific policies for industrial uses, which are different than policies for energy uses, said Meriel Darzen, rural lands attorney for the 1,000 Friends of Oregon conservation group.

"These facilities, power generation facilities, are utilities," Darzen said. "They're not manufacturing a good. In land use, they're considered a utility."

An exception for solar development should instead be sought under a different land use goal that pertains to utilities, she said.

The employment opportunities created by an industrial facility are pertinent because the county must decide whether those jobs justify the loss of farmland, she said.

"There is a distinction in the way land use law treats utilities versus something that's more of an economic development driver," Darzen said.

The Oregon Supreme Court's justices concluded the oral arguments without stating when they'd issue a decision in the case.