Washington Supreme Court weighs challenge to Horse Heaven Hills approval over tribal harms and procedure

The Washington Supreme Court heard oral arguments June 11 in Tri City Cares v. Energy Facility Site Evaluation Council over whether the governor’s approval of the Horse Heaven Hills wind, solar and battery project should be set aside because of alleged procedural failures and unaddressed tribal cultural harms.

Shona Volkers, who identified herself as counsel for the Confederated Tribes and Bands of the Yakama Nation, told the court that “approving the Horse Heaven Hills project as it currently stands means approving well documented enduring significant harm to Yakima Nation.” Volkers said FSEC’s second recommendation unlawfully reduced mitigation imposed in the council’s earlier recommendation and relied on a governor‑driven emphasis on preserving generation capacity rather than the balancing the statute requires. She asked the court either to set aside the site certification agreement or to remand to FSEC for a supplemental environmental impact statement and a limited adjudication that would allow meaningful tribal participation.

Why it matters: The case tests how administrative and statutory duties intersect when the Energy Facility Site Evaluation Council (FSEC) and the governor diverge on terms for a major energy project, and whether the record and process complied with RCW 80.50.010 and SEPA requirements.

Petitioners told the bench that FSEC’s responsibilities include (1) conducting a SEPA review and analysis, (2) adjudicating contested issues, and (3) engaging in government‑to‑government consultation with impacted tribes. Volkers argued those pillars were undermined when turbines and other elements removed in FSEC’s first recommendation were reinstated in a second recommendation that she said tracked the governor’s policy direction. She said the timing and sequencing of the environmental review were critical: the adjudication took place before issuance of what the petitioners call a final EIS, leaving no meaningful SEPA comment period on substantive changes to the project.

Representing Tri City Cares, Richard Aramburu emphasized that FSEC’s initial recommendation struck a balance and imposed what he called substantial mitigations to protect tribal interests and the Tri‑Cities community. “The unanimous council determined that mitigations, serious mitigations, to protect tribal interests… should be imposed,” Aramburu said, and argued the council’s 64,000‑page record, eight‑day adjudication and dozens of witnesses supported a carefully reasoned outcome that the governor later altered.

Ken Harper, representing Benton County, focused on public participation and SEPA sequencing, urging a narrow remand to develop and integrate the FEIS and adjudicative record where they were out of step. Harper argued the absence of a final EIS before adjudication impaired public opportunity to respond to substantive changes.

For the respondents, Jonathan Thompson, representing FSEC and the governor, urged deference. Thompson framed the core dispute as one over the standard of review and the allocation of responsibility: he said the operative review is of the final terms signed by the governor and reviewed under an arbitrary‑and‑capricious/abuse‑of‑discretion standard. “The Horse… siting decision should be upheld for three main reasons,” Thompson told the court, saying the council developed a legally sufficient record, followed required procedures, and exercised the discretionary balancing the statute assigns.

Phil Talmadge, counsel for the project proponent Scout, described a long permitting history, local land‑use consistency and substantial reductions from the initial proposal — from an original application of 244 turbines down to roughly 115 turbines in the proposal at issue — and defended the council’s and the governor’s consideration of statutory factors.

The justices repeatedly pressed counsel on two core questions: whose decision is the court reviewing (the governor’s approval or FSEC’s earlier recommendations), and what remedy would be appropriate if the court found a procedural or evidentiary error. Petitioners said the court can tailor a remand (for example, require a supplemental EIS and a focused adjudication); respondents said the governor’s role and the breadth of the record counsel deference to that final decision.

Several justices questioned whether any defect in process was prejudicial to the ultimate order, and whether any relief should be limited in scope rather than restarting the entire review. Counsel for the Yakama Nation repeatedly stressed the particularity of cultural harms that, in their view, cannot be mitigated if the project remains at near‑full capacity in sensitive areas.

The case was submitted after rebuttal arguments and the court adjourned. The justices did not announce a decision at argument’s end; a written opinion will follow.

What to watch next: The court’s opinion will clarify the standard of review applicable when a governor alters or approves FSEC recommendations, the extent to which procedural sequencing under SEPA and the council’s adjudication can render a final EIS or certification invalid, and the remedies — if any — available to tribes and local governments challenging the certification.