The Oregon Energy Facility Siting Council (EFSC) oversees the siting of large-scale energy facilities like wind and solar power projects, which often include an associated Battery Energy Storage System (BESS). BESS is a critical tool in the decarbonization toolbox, offering backup power when it’s needed and addressing intermittency and other grid limitation problems. Though many approved hybrid solar and wind projects to date have included BESS, the permitting landscape for standalone BESS projects in Oregon has been disparate, largely county-specific and dependent on local land use codes. And it was uncertain whether or how EFSC could exercise jurisdiction to certify standalone BESS.
To address this uncertainty and the pressing need for new BESS, last month the Oregon legislature passed House Bill 4015 (HB 4015). The legislation, effective June 2024, allows standalone BESS developers to proceed through the EFSC permitting process and allows local jurisdictions to defer regulatory authority over the same to EFSC. Importantly, it confirms that EFSC’s jurisdiction now extends to certify not only BESS associated with other energy facilities, but also standalone BESS. The bill’s key elements are summarized below.
- Defines BESS, but not as an “energy facility” generally: HB 4015 provides a statutory definition of BESS: “an energy storage system that, other than for personal, noncommercial use: (a) Collects energy from the electric grid or an energy generation facility; (b) Uses rechargeable batteries to retain and store the energy for a period of time; and (c) Discharges the energy after storage to provide electricity when needed.” HB 4015, § 1. It does not, however, add BESS to the definition of an “energy facility” independently subject to EFSC jurisdiction under ORS 469.300(11)(a).
- Expressly allows BESS siting under the same site certificate as an energy facility: HB 4015 adds BESS to the list of “related or supporting facilities” covered under an associated primary facility’s (i.e., hybrid solar or wind) site certificate, HB 4015, § 2, confirming BESS doesn’t require a separate site certificate.
- Allows developers (or a local government) to elect to permit a standalone BESS through EFSC: BESS can now be permitted through EFSC “[i]f the developer of a facility elects, or the governing body of the local government after consulting with the developer elects” to do so. HB 4015, § 2. Though the statute itself is silent on this point, legislative history shows the drafters intended to provide an EFSC permitting pathway for not just supporting BESS but also standalone BESS.
While this legislation provides needed clarity as to permitting venue, it does not solve a major substantive permitting hurdle for BESS developers. Importantly, an applicant proceeding under the EFSC process still needs to demonstrate land use compliance. HB 4015 does not change existing state land use standards to expressly authorize BESS as an approved use (most notably, in exclusive farm use zones). Nor does it address how EFSC may certify land use consistency for a standalone BESS if a county’s code does not independently, expressly allow for BESS as an approved land use. Absent these elements, there remains no uniform, state-wide pathway to land use approval for standalone BESS. In short, this new legislation could be helpful for BESS developers looking to pursue certification from EFSC with projects located in counties with codes favorable to standalone BESS. But because the bill does not independently facilitate land use authorization for standalone BESS use, it may not provide a viable permitting pathway for projects sited in counties where the code does not authorize standalone BESS. Even so, with the significant demand for standalone BESS currently throttled by regulatory obstacles, expect to see more legislative efforts on the land use front in the near future.
