Document text
Oral Argument 2026-030 Remington BESS, LLC v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=q8HVbLD4Uv4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Mhm. >> Good morning. This is the time set for oral argument >> [clears throat] >> in Luma number 2026-030 Remington Best LLC versus Marion County. I'm board chair Zamudio. Board members Wilson and Basham are also present. In this appeal we have received a motion for filing an amicus brief and an amicus brief. Are there any other pending matters that the parties need to bring to our attention? >> Not that I'm aware of. >> Okay, thank you. Uh, oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yeah, I'd reserve five, please. >> Okay, and I will keep track of time here, but ask that you also keep track of your own time and just note that the clock on the screen is for reference, but it's not keeping exact time. And then respondent county and intervener, have you decided how you'll share your 15 minutes? >> We have, yes. I'll speak for about five minutes and then I'll leave the remaining time for the county. >> Okay, thank you. And again, I'll keep track of your overall time, but leave it to you to make sure that you're dividing your time as you have agreed. Thank you for agreeing in advance how you'll divide your time. Uh, so with that, petitioner, please state your name for the record and begin. >> My name is Ryan Thomas of Ashurst Perkins Coie on behalf of petitioner Remington Best. Good morning, chair Zamudio, board members Wilson and Basham. This case is about two questions. First, is a battery energy storage system utility facility under ORS 215.283.1c and second, did Remington's alternative analysis satisfy 215.275.2? I'll address of course those two topics and welcome questions from the board at any point. Before I dive in, I want to note that I see this case is both critically important to the state of Oregon and also quite straightforward. Uh it's important because it asks whether a key element of the rapidly evolving utility grid infrastructure will be allowed to be cited where it needs to be in order for Oregon to meet today's climate challenges and statutory requirements. It's straightforward because when the law is applied to the facts of this case, it's apparent that battery storage are utility facilities that can be cited on EFU land. I expect you'll hear from the county and Friends of Marion County this is a complex case surrounded by slippery slopes and I assure you that it's not. The existing legal framework provides clear boundaries and this case falls Okay, on on point one, ORS 215.283.1.c allows utility facilities necessary for public service to be cited on EFU land as a matter of right but does not define utility facility. The term is defined in the most instructive case, Cox v. Polk County, which all parties here have cited extensively. There the course define the court defined utility facility broadly to mean equipment or apparatus standing alone or as part of a structure that functions to perform or provide a service such as production, transmission, delivery, or furnishing of electricity. The record shows that Remington's facility fits squarely within this definition and the county committed reversible error by adding new criteria in finding the best are not utility facilities. BEST collects energy from the grid. It uses an electrochemical process to store that electricity in rechargeable batteries and then furnish that electricity back to the grid to serve residential and commercial customers during peak demand. The project will connect with Pacific Corp's Parish Gap substation and deliver that electricity into the system in the Willamette Valley service area where it will be consumed by residential and commercial customers. This is precisely the kind of equipment functioning to service, to furnish, and deliver electricity that Cox describes. >> Uh Mr. Summers? >> yeah. >> I'm looking at that quote you have from from Cox and your your brief and it starts the part you just quoted it utility facility is something that provides production, transmission, delivery, or furnishing of electricity here. And then at the end of the paragraph it says, you know, at the least it has something that does production, transmission. So, it repeats the first two of that first part and then it just says of or similar functions or service. Is that the same thing as delivery or furnishing? Or my my question is, do you have to show that you're furnishing electricity or can you be doing a similar function or service as well? I know you're saying you do furnish it, but I'm wondering if those are >> Yeah. >> independent bases. >> I I read them as independent. So, I think you can deliver or furnish or you're providing a similar function or service. And I I read the best would would do all of those things. It's it's delivering and furnishing and it's also providing other service such as this credit balancing. It's allowing renewables to be delivered to the grid when they need to. Um it's providing a service by ensuring that during peak demand that power gets to the end customer. We have a you know, transmission is very constrained in the state. Um and as we know with intermittent renewables, this is a necessary function to the modern grid. So, I think it's all of those things. >> Okay. Thank you. >> Mhm. LCDC described utility facility category is covering a wide range of things and the AG's office uh stated this is a general category that's interpreted broadly. The legislative history also shows that this category of utility facility is broad and open, whereas the other I think it's 24 or 25 or so of the categories in 2831 are very specific and narrow. Taken together with Cox, we understand utility facility definition is broad and equipment that provides that service I do think it's important to talk about how best fits within this larger statutory scheme in the modern grid. As I just mentioned to board member Wilson it's essential for utilities to have best in order to meet the energy and renewable targets that are set forth in House Bill 2021 and the storage procurement obligations in House Bill 2193. Pacific Core Zone IRP which is reviewed and approved by the commission the public utility commission identifies this need for a lot of storage 3800 megawatts of new storage resources in the 2025 RFP calls for at least 509 by the end of 2029. Um the need by utility alone does not make something utility facility, but what these show is these are integral parts of the modern grid in the system. So they weren't contemplated perhaps when the statute was first adopted, but they're serving a very similar function or service and they're furnishing electricity in a similar manner to a substation. Today's grid requires best with the increase in renewables, increased electrification and aging and constrained transmission system best provides an essential utility service. Given the broad standard and the functional reality of what this facility does along with the state policy backdrop, the best project is utility facility under 215 2831c and the county committed reversible So that brings me to the second question because best utility facilities the next inquiry is whether Remington showed that it satisfied ORS 215 275 through its alternatives analysis. That statute is the sole method for determining whether utility facility must be cited on EFU land. It requires an applicant to show that reasonable alternatives outside of EFU were considered and the facility nonetheless must be on EFU due to one or more and not all one or more of the six enumerated factors. The one or more language matters. Remington relied on three of the factors, the first three, technical and engineering feasibility, locational dependence, and the lack of urban and non-resource lands. Any one of those standing alone satisfies the test. The county tries to read out the words one or more by focusing on and used later in that list instead of finding that all of the factors must be considered. It treats all of these factors as if they must be weighed or balanced, which is reversible error. The statute clearly says one or more as does the supporting case law. The county cited no authority for a balancing test that would make that phrase meaningless. And Remington demonstrated necessity under these. And you know, I think it's important to note that this this legal error I think was committed first at the staff level and repeated by the HO and then by the board and it and it's really seemed to have infect the decision throughout where you know, I think for example, the health and safety factor was sprinkled throughout um some of these other factors and um that was not a basis upon which Remington is applying here and it really must only show one or more and The leading alternatives analysis case is Sprint and this was analyzed by all the parties here. In Sprint, the court said that the utility's decision about its service needs should be respected and the site that does not meet those needs is not a reasonable alternative. And it put boundaries on this so long as the utility's objectives advance the goal of providing utility service. The court acknowledged the tension between these two. On one end pure deference and in the other no consideration and it found that the balance between those two is appropriate. That the objectives should be respected so long as they're advancing the goal of providing service. The court actually found Sprint's desire to have its own tower rather than collocate on another tower could be reasonable. Here Remington prepared a detailed alternatives analysis that includes both high-level business objectives and then very specific siting criteria to identify the reasonable sites outside of EFU where it could perhaps provide service uh The record documents extensive methodical siting study. Remington first looked at 30 sites in the region with 115 kV substations have 115 kV or greater capacity. I'm sorry voltage. And then it narrowed that list to six substations that had available transfer capacity. Once it had the list of six substations that actually had capacity to take additional energy, it applied the 10 specific siting criteria. That's proximity within a mile of the substation, minimum acreage, slopes that are conducive to heavy batteries, the absence of wetlands, feasible network upgrades, etc. Only the Parish Gap substation met all of those reasonable criteria and that advanced the goal of providing utility service. The county's only counter evidence is a map of PGE substations in the county without any information as to whether those substations had capacity and without addressing how that would satisfy the business objectives of providing service to PacifiCorp. PGE substations are irrelevant. And Sprint makes clear that an applicant's reasonable business objectives here meeting PacifiCorp's service need must be respected. And the site that doesn't meet those objectives is not reasonable. Requiring Remington to partner with a different utility to solve a different utility's problem is not a reasonable alternative. It's an objective the statute and Sprint don't require Remington to pursue. It would also lead to problematic outcome where one utility's needs might need might go unsatisfied until a competitor's utilities are all completely met and that I think would be One final note on the alternatives analysis. One of the siting criteria is that the underlying zone must allow battery storage. And if a site doesn't allow battery storage, then it wouldn't be a reasonable alternative. Here, Marion County adopted ordinance 1480, which I think we all agree doesn't apply to this application. But, what it said when it adopted it was that BESS are not allowed anywhere in Marion County, and that ordinance is merely adopting what was already true. And that record citation there's 2645. Remington >> Before you run out of time, Mr. Thomas. The county says that you didn't raise the I think it's your first sub-assignment of error under the second assignment of error. So, there's no If you can't cite it anywhere in the county, then there's no reasonable alternatives. They're saying you didn't raise that issue below, that you were only arguing that the that ordinance doesn't apply. What's your response to that? >> Yeah, I think we raised it because it's a citing factor, but we didn't actually eliminate any sites based on that because we agreed that 1480 didn't apply. So, I think what's critical there is it's more of a consequence. So, if this case were to be remanded back to the county, there's no alternative sites even if 1480 doesn't apply because the county said BESS before 1480 and after 1480, BESS can't be cited anywhere. So, it's a really unique situation I think to this case with the timing of the application, the timing of this ordinance that I think creates an awkward situation where upon remand there wouldn't be any alternative sites. >> Were any of the alternative sites you >> Were they within cities? I believe that some were. Certainly, they were all outside of EFU. I'd have to double-check that. >> Okay. I'm just thinking if if it if it did go back and then or if if the county's going to say, "Oh, well, you could cite it in a city." then then it wouldn't really matter that there's nowhere else in the county you could cite it. >> Sure. Yeah, we did not eliminate any sites based on on zoning, it should be noted. Uh they were all due to other factors. >> All right, thanks. >> And I'm going to ask about what the proper remedy is for what you've argued or the errors. What's what's your position on the remedy here? >> Yeah, the position would be the reversal is warranted under both utility facility definition and the alternatives analysis. The county misapplied the law on both. It brought in factors that shouldn't be considered for utility facility definition, such things as is you know, a but for test, but for the best does electricity get to the grid still, get to consumers? That's not the test. Is it a regulated utility? That's not the test. And similarly with 215 275, I think that it's balancing of the factors rather than looking at one or more and and addressing and and bringing in public health and safety into multiple factors really colored and affected that analysis and so they got the the law wrong enough that it should be reversed. >> Okay. Any further questions from the board? All right. You will have two and a half minutes for your rebuttal and we will turn to intervening respondent. Please go ahead. >> Good morning, board members. John Butterfield for Friends of Marion County. Um I think we all seem to agree that their 215 283 1C sort of breaks down into two parts. Is this a utility facility? And then the necessary standard that that then goes into the additional factors. So, I'm just focused on the first part of of is this facility a utility facility? And Mr. Thomas said it seems straightforward and and I would respectfully disagree. I think this is an example of a on the line question of this new technology. It's not spelled out in the um it's not even really considered in Cox specifically and and the definition. And so, I think it's important to to sort of step back and revisit McCaw Communications sites. The sort of underlying principle that when we're when we're deciding whether non-farm uses are going to be allowed in farm zones, we want to interpret them in a way that best protects the farm zone while while meeting the other needs that we have and in this case utility service to people um and so that's where I think the Cox court was really going was looking at uh you know producing delivering furnishing power from its generation site to the people who are actually going to use it and but remember Wilson asked about okay we have the four that are defined in Cox and then we have these or other similar services and I think um Remington doesn't really explain what their other similar service would be if they don't qualify under furnishing they really seem to have hung their argument on that furnishing um function and I think Cox itself sort of lays out the limit of what what you could say is an other similar function because in Cox there was a storage facility that was being used for the water before it got applied to the trees and there was a um transmitting pipes to get the water from the uh original pre-treatment into these storage pipes and the court held those aren't utility facilities because they're not actually providing the service in that case it was disinfection of water and and I think that that's a good analogy for what's happening here where um in their in their reply brief Remington actually sort seems to say that if Bess is just storage, it wouldn't qualify. Um and they say Bess is something more than storage, but I I don't see that. It takes electricity out of the grid and then it puts actually less electricity back at some point in the future. And and Remington criticizes this as as we are claiming for a but-for test. I think Cox actually even and and the South Suburban Water case actually set up something that's even kind of stronger than a but-for test. Like in South Suburban Water, the the chemical treatment was happening inside of a pipeline. And if you didn't have that pipeline, the water would be spilling everywhere. There wouldn't be any treatment. Uh but the Lujan in that case said, "Well, but what's what's actually doing the treating is the chemicals, not the pipeline." And I think that's similar to what's happening here. What's actually providing the service is the electrons. And they need to move from generation to delivery to the consumer. And that happens through transmission and substations. But then at some point they're removed and then returned to the dis- to the grid through storage um in a market play about buying electricity when it's cheaper and selling it back to the grid when it might be more expensive. And that it is not um a a furnishing or a delivery of electricity to people. It's It's a commercial uh storage activity. Uh I think it's more similar to the wastewater ponds in Cox or the the pipeline that contains where the actual treatment is happening. So, I agree with with Mr. with Mr. Thomas said that need I I you know Oregon may very well need battery energy storage systems. That doesn't make them a utility facility that then can be cited anywhere in the EFU that they can demonstrate the necessity and they you know that can be the legislature knows how to change the law if it needs to you know it has set out specific statutory guidelines for things like solar sighting and it hasn't done that for the battery energy for for storage systems and I think that that's instructive that they're not considered utility facilities and and if the legislature does want to you know believes that they're so important that they should be cited in farm zones they could change the law to accomplish that. So happy to have any questions or otherwise I'll defer to Mr. Mittendorf from the county at this point. >> No questions from the board for intervener respondent we'll move to the county. >> Good morning chair and members of the board Andrew Mittendorf from Marion County. The county asks Luba to affirm the county's decision to deny the application for this best facility. The county's order rests on two independent grounds. First the standalone merchant battery energy storage system is not a utility facility within the meaning of ORS 215.283 subsection 1 C. Second even assuming it is a utility facility Remington did not carry its burden under ORS 215.275 to prove that this facility must keyword must be cited on EFU land. I will focus primarily on the second ground because it independently requires that the decision be affirmed. ORS 215-275 does not ask whether Parrish Gap Substation is Remington's best site, its least expensive site, or the site that best fits a particular request for proposals. It asks whether the facility must be cited in an EFU zone in order to provide the asserted service. The applicant bears that burden. On review, the question is not whether LUBA would have weighed the evidence differently. The question is whether a reasonable decision-maker considering the whole record could conclude that Remington did not prove EFU necessity. The county could reach that conclusion here because Remington's alternative analysis begins with a predetermined commercial project and then defines the universe of alternatives around that project. In the record, Remington identifies its objectives as competing successfully in Pacific Corp 2025 uh Oregon RFP using Pacific Corp as the offeror taker, preserving a 199-MW interconnection queue position, achieving commercial operation by the end of 2029, and maintaining commercial viability. Its screening criteria then require a Pacific Corp Substation within 1 mile, at least 15 contiguous acres, space for up to 40 MW of future expansion, and network upgrades below a self-selected $20 million threshold. Those may be all may be legitimate business considerations, but the board was not required to treat each of them as proof that EFU siting was necessary. First, going to the or going to the three uh areas or factors that Remington cited to. The first is technical and engineering feasibility. Remington's own analysis states that it's that it's available transfer capacity review only predicts where capacity may exist. Only PacifiCorp can confirm capacity through the interconnection study and Remington acknowledged that process can take years. Remington did not provide completed project specific studies showing that non-EFU alternatives could not be interconnected. The board therefore found that the evidence showed differences in cost, timing, and commercial attractiveness, not technical infeasibility. Petitioner emphasizes the order's use of the phrase "technically impossible." Read in context, that phrase did not create a new impossibility criterion. The findings identify the actual evidentiary deficiency. Remington did not provide engineering evidence establishing that a non-EFU alternative site could not be designed or interconnected. A self-selected cost ceiling and an RFP deadline do not by themselves transform a possible site into a technically infeasible site. Second, moving to locational dependence. The statutory definition requires a reasonably direct route or unique geographical need that cannot be satisfied on other lands. Remington established that Parish Gap is advantageous. It did not establish that a 15-acre site within 1 mile of that particular substation is a unique geographical need. There's no evidence that PacifiCorp required the Parish Gap substation, the 1-mile radius, the space for future expansion, or the precise project configuration. Remington stated reasons include transmission line cost, wheeling charges, electricity loss, crossing agreements, procurement timing, and commercial competitiveness. Those considerations may support Remington's decision to choose Parish Gap. They do not, however, compel the statutory conclusion that the project must occupy EFU land and instead are cost-based arguments, which the statute clearly says can be considered, but cost alone cannot provide necessity. Third, moving to the lack of urban or non-resource land, Remington excluded every non-Pacific Corp substation before evaluating whether land around those substations was available. It also excluded sites that did not satisfy its 1-mi acreage expansion, acreage expansion, cost, or timing screens. Sprint PCS requires respect for reasonable service objectives. However, it does not require a county to accept every applicant-defined commercial parameter as dispositive. Even assuming that will it that Remington may define the service as providing service to Pacific Corp's Willamette Valley system, the record does not establish that providing that service required every one of Remington's screening criteria. Remington rejected alternatives because a 2-mi transmission line and or a potential Interstate 5 crossing would make the project financially infeasible, which its analysis equated with being not commercially competitive. That's exactly a cost-based analysis that the statute says can be considered, but can't be the only reason that a site is is disqualified as a potential alternative. The board >> Um before we move on, I have a question about the first sub-assignment of the second assignment of error and about the ordinance that says you can't have these anywhere. Um what is your response to uh Mr. Thomas's point that if the county's decision gets affirmed, they go because of that use you found oh, you have reasonable alternatives, they go back and they just they'd have to file a new application, and all of a sudden under the new application, you're not allowed to do these anywhere in the county. What's what's your response to that? >> There's two response to that, Board Member Wilson. The first is that the county has been working with with industry partners to develop ordinance that would allow for sighting of best in Marion County, but coming up with conditions for approval of that because the county firmly believes it's not a subsection one use as of the right, and therefore the county can permit them, but it would have conditional uses. The second part is >> Let's let's well, assuming that if if the petition prevails and says oh, yeah, this is a utility facility and it's a sub one use, >> Sure. >> and then you send it back. Has this new ordinance been adopted that would supersede the one that doesn't allow them anywhere? >> Uh it hasn't been adopted yet, but it would it's forthcoming. We're doing a set of code updates and it's anticipated that that will be a part of it. >> I just want to be really clear at this juncture that we'll decide this case based on the record before us and what the county has or hasn't done or intends to do won't be a basis for our decision. >> That's fair, and I think the more dispositive part frankly on that question is what Board Member Wilson was alluding to earlier is the fact that any Marion County code doesn't apply inside of a city. So, if it's cited inside of a city, then the code is irrelevant because it's the city's determination and city code and ordinances that would dictate whether or not it's allowed or or banned. >> Okay. >> And I that kind of gets to part of this analysis too of there are urban alternatives that don't require EFU land, and that gets into that locational dependence Um and the lack of urban or non resource land that is one of the factors under 215 275. Um but for various reasons like I was saying the two mile transmission line or an I5 crossing those were ruled out because Remington said that it would make it not commercially competitive which is a complete cost based analysis. Petitioner repeatedly calls its evidence uncontroverted but the uncontroverted evidence is not automatically conclusive. The applicant continues to bear the burden of persuasion and a fact finder may reject evidence that does not persuasively establish the required statutory conclusion. The county was not required to commission its own engineering study or identify and design an alternative best project for Remington nor were the findings merely conclusory. They identified the one mile screen. >> We've We've reached your 15 minutes so if you'll just wrap up, please. >> Sure. The The threshold question here is that the county believes it's it's not a subsection one use as of right and even if it is the alternative sighting analysis didn't meet its burden um and that the county asks for the decision to be affirmed. Thank you. >> Thank you. Now for the questions from the board, we will return to petitioner for rebuttal and you'll have two and a half minutes for rebuttal. Go ahead. >> Thank you. Uh I'll again put these in two buckets of utility facility and alternatives analysis. So on the utility facility definition what we heard from Mr. Butterfield is an extremely narrow focus on actual electrons and if that test were to be applied as whether whether the facility is necessary for the electrons to get from generation to consumer I think that that's so narrow that I think we're all of a sudden saying well, transmission towers themselves might not be utility facilities cuz the electrons don't go through the towers. Would it just be the lines? But is a line kind of like a pipe in South Suburban and so wouldn't be the pipe? Is it only just the electrons? So I think it's a it's an overly narrow reading that that leads to some pretty absurd outcomes. Um as to Cox and South Suburban, those are also both water treatment cases and don't deal at all with electricity. Our focus on on what happens Oh, I I think it's important actually to answer this question. Um Mr. Butterfield indicated he thought we conceded that storage alone would not qualify and we certainly don't concede that. Um here >> [clears throat] >> excuse me. In Cox and South Suburban, there was discussion about what's actually occurring, whether there's a process or some service. Here, storage is the service for the grid and there's also a process occurring at the storage facilities. So in both in both situations, I think we satisfy those tests and Cox and South Suburban are are not a problem when it comes to battery storage facilities. Um on the the second points with the alternatives analysis, I think it's important to look at look at the boundaries under Sprint. So I think for example with the 10 siting criteria, those are not all costs. I think we we saw that in the briefing and we heard that again from Mr. Mittendorf that these are all just dressed up cost factors and they're really not. Um I think boundaries are important when you look at what what's the boundaries under Sprint. So for location for example, it may be that if if you said it you had to be adjacent to a substation, that could be too restrictive and you'd need to look beyond that. Here Remington said a mile works. Um the two mile example with the I-5 crossing, that's not just a cost factor. It's very difficult to secure property rights across two mile stretch. Um people don't have to grant you property rights. It's not a transmission project. Um so that is actually a locational dependence issue where it becomes prohibitive for a project. I think another boundary would be size. You could say we need 150 acres for this project. I think the county could come back and say that seems too large. Most of these commercial projects are 15 to 20 acres. So that would be a reasonable way that a county could impose some limits. Similarly with cost here, we've said 20 million dollars in upgrades, which is a significant amount of money. If an applicant were to come in and say, "We're going to eliminate a site if there's any upgrades." I think that would be unreasonable. So I I urge LUB to consider that there are boundaries baked in into Sprint and it's not just a slippery slope. >> Okay. Thank you. I'll conclude our argument and our statutory due date for a decision in this appeal is August 8th. We'll ask the parties to agree to an extension so that we issue our opinion no later than August 26th. Is that okay with these parties? >> See no. That's okay for petitioner. >> Okay.