Wash. Farm Bureau v. Dep't Of Ecology

• Court: Washington Supreme Court
• Decided: June 25, 2026
• Docket: 103,413-0
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JUNE 25, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JUNE 25, 2026 SARAH R. PENDLETON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WASHINGTON FARM BUREAU, ) No. 103413-0 ) Appellant, ) ) WASHINGTON TRUCKING ) ASSOCIATION, ) EN BANC ) Plaintiff, ) v. ) ) WASHINGTON STATE ) Filed: June 25, 2026 DEPARTMENT OF ECOLOGY, ) ) Respondent. ) ______________________________ )

MONTOYA-LEWIS, J.—When the legislature passed the Washington

Climate Commitment Act (CCA), it found that climate change is an existential crisis

plaguing our planet and communities. RCW 70A.65.005(1); Climate Change

Impacts, NAT’L OCEANIC & ATMOSPHERIC ADMIN. 1 As global temperatures rise, we

see increasing wildfires, longer-lasting droughts, and severe hurricanes and flooding.

1 https://www.noaa.gov/education/resource-collections/climate/climate-change-impacts [https://perma.cc/T8EV-FS23] Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

RCW 70A.65.005(1); Courtney Lindwall, What Are the Effects of Climate Change?,

NAT. RES. DEF. COUNCIL. 2 Greenhouse gas emissions from the burning of fossil fuels

increase these negative impacts on environmental and human health.

RCW 70A.65.005(1). Absent preventative measures to limit those emissions, the

impacts of global warming include the destruction of hundreds of thousands of

species, harm to food production, increased diseases, and forced displacement of

entire communities. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra.

In an effort to address climate change and reduce greenhouse gas emissions

from the largest emitting sources, such as suppliers of fossil fuels, in 2021 the

Washington State Legislature enacted the CCA. RCW 70A.65.005, .080(1)(d);

LAWS OF 2021, ch. 316.3 The CCA generally imposes caps on the amount of

emissions from fuel suppliers but exempts fuel used exclusively for agricultural

purposes from these caps if the fuel buyer provides the seller with an exemption

certificate. LAWS OF 2021, ch. 316; former RCW 70A.65.070(1)(a) (2022); RCW

70A.65.020; former RCW 70A.65.080(7)(e)(i) (2022).

The legislature tasked the Department of Ecology (Ecology) with

2 https://www.nrdc.org/stories/what-are-effects-climate-change [https://perma.cc/7Y68- 37AE] 3 If an agency promulgated a rule when a former version of a statute was in effect, the validity of that administrative rule is assessed as of the date of its adoption. Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 148 Wn.2d 887, 905-06, 64 P.3d 606 (2003); RCW 34.05.570(1)(b). Thus, this opinion cites the CCA provisions in effect in 2022, the year the Department of Ecology adopted the rules challenged here. 2 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

promulgating a rule to implement the agricultural exemption. Former

RCW 70A.65.080(7)(e)(ii). It did so. The Washington Farm Bureau (WFB) filed a

petition for rule making, alleging Ecology’s rule did not provide a workable method

for claiming an agricultural exemption, resulting in fuel overcharges. Ecology

denied the petition. WFB then filed a petition for declaratory judgment and for

review of agency action in superior court under the Washington Administrative

Procedure Act (APA), ch. 34.05 RCW, asserting that Ecology’s rule and subsequent

denial of the petition for rule making exceeded the agency’s statutory authority and

constituted arbitrary and capricious action. The court dismissed the petition with

prejudice. On direct review, we retained the case.

We affirm. We hold that Ecology’s rule largely follows the CCA and did not

exceed its statutory authority, and that Ecology’s rule and denial of WFB’s petition

for rule making likewise did not rise to the level of arbitrary and capricious action.

FACTS AND PROCEDURAL HISTORY

A. The CCA and Agricultural Fuel Exemptions

The Washington State Legislature passed the CCA in 2021 to address the

harmful effects of greenhouse gas emissions on our environment and communities.

LAWS OF 2021, chs. 315-317; RCW 70A.65.005.

The legislature finds that climate change is one of the greatest challenges facing our state and the world today, an existential crisis with major negative impacts on environmental and human health. Washington is experiencing environmental and community impacts 3 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

due to climate change through increasingly devastating wildfires, flooding, droughts, rising temperatures and sea levels, and ocean acidification. Greenhouse gas emissions already in the atmosphere will increase impacts for some period of time. Actions to increase resilience of our communities, natural resource lands, and ecosystems can prevent and reduce impacts to communities and our environment and improve their ability to recover.

RCW 70A.65.005(1). The legislature recognized the detrimental repercussions of

climate change on our planet and its inhabitants, and the ways in which greenhouse

gas emissions exacerbate those impacts, and so the legislature took action to reduce

and repair harm at the state level. Id. Consequently, the CCA caps and reduces

greenhouse gas emissions from Washington’s largest emitting sources and industries

through a “cap and invest” program. LAWS OF 2021, ch. 316;

former RCW 70A.65.070(1)(a); RCW 70A.65.020. In other words, the program sets

an emissions limit and lowers the amount of emissions allowances over time to

ensure that Washington meets its greenhouse gas reduction commitments.

RCW 70A.45.020.

The CCA imposes emissions regulations on “covered entities.”

Former RCW 70A.65.060 (2021). Covered entities risk being fined if they fail to

comply with the prescribed emissions limits. RCW 70A.15.2200(5)(d). Relevant

here, suppliers of fossil fuels are covered entities if they emit 25,000 metric tons of

carbon dioxide or more per year. RCW 70A.65.080(1)(d).

However, the legislature exempted certain categories of greenhouse gas

4 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

emissions from coverage under the cap and invest program. One such exemption

applies to emissions from “[m]otor vehicle fuel or special fuel that is used

exclusively for agricultural purposes by a farm fuel user” if the “buyer of motor

vehicle fuel or special fuel provides the seller with an exemption certificate” as

prescribed by Ecology. Former RCW 70A.65.080(7)(e)(i). For purposes of the

agricultural exemption, “agricultural purposes” means “the performance

of activities directly related to the growing, raising, or producing of agricultural

products,” but does not include transporting agricultural products and

farm equipment on public roads. RCW 82.08.865(2)(a). “Farm fuel user” means

“[a] farmer” or “a person who provides horticultural services for farmers.”

RCW 82.08.865(2)(e). Thus, while the CCA generally caps emissions from fuel

suppliers, the agricultural exemption operates to exclude emissions from fuel

used for agricultural purposes if the buyer of the fuel provides the seller with

an exemption certificate.

The cap and invest program uses a market force structure, meaning the CCA

relies on market forces by requiring the largest fuel suppliers in the state to purchase

allowances or credits equal to their annual greenhouse gas emissions to comply

with emissions limits. See RCW 70A.65.010(18)-(19). The exemption certificate

framework likewise provides a market-based incentive for suppliers to track and

report agricultural exemptions. See former RCW 70A.65.080(7)(e)(i). If suppliers

5 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

fail to claim those exemptions, the fuel will be more expensive than that

of competitors who do claim exemptions on said fuel. The structure of the CCA

rests on the presumption that a capitalist market will drive suppliers toward

compliance.

B. Factual Background

The legislature directed Ecology to adopt rules to implement the cap and

invest program, and to “determine a method for expanding” this agricultural

exemption to include emissions from “fuels used for the purpose of transporting

agricultural products on public highways.” Former RCW 70A.65.080(7)(e)(ii).

Ecology adopted a final rule in 2022, defining “supplier emissions” exempt from

emissions regulations as “[m]otor vehicle fuel or special fuel used exclusively for

agricultural purposes by a farm fuel user” and “[f]uels used for transporting

agricultural products on public highways.” WAC 173-446-040(2)(b)(iii)-(iv).

Ecology then became aware that some fuel suppliers had been adding

a surcharge to the wholesale price of fuels—even fuel sold to farm users

for agricultural purposes—to offset the economic losses from the emissions cap.

Ecology responded by publishing interim guidance for fuel exemptions, including

information on how to report and document emissions from fuel used for agricultural

purposes. As part of that guidance, Ecology explained that fuel suppliers could use

a Department of Revenue (DOR) form as the exemption certificate to prove fuel

6 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

sales fall under the agricultural exemptions. See former RCW 70A.65.080(7)(e)(i).

The certificate provides that “[t]his form may be utilized to document fuel

transactions that are exempt under these provisions, but fuel users and covered

entities are not required to use it.” Clerk’s Papers (CP) at 599.

C. Procedural History

WFB then filed a petition for rule making, asking that Ecology open rule

making to establish a more workable method to claim an agricultural exemption

under the CCA before purchasing fuel as well as a process for those

in the agricultural industry to receive refunds for surcharges on fuel. Ecology formed

a work group to address the issue and noted it would be nearly impossible to “create

a paper-trail of receipts showing that fuel produced was end-used for [agricultural]

purposes.” Id. at 247. Ecology also determined that accurate exemption of emissions

is a matter of compliance enforcement as opposed to implementation.

Ecology denied WFB’s petition for rule making. Ecology reasoned that

the interim guidance it previously issued assisted fuel suppliers in documenting sales

of exempt fuel and in avoiding surcharges on that fuel. Ecology also explained that

since the guidance was being implemented successfully by many fuel suppliers, it

was unnecessary to change the current rules. Moreover, Ecology stated that it lacked

authority to allocate refunds for fuel surcharges and that WFB did not identify

7 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

any mandatory duty for Ecology to do so.

In superior court, WFB filed a petition for declaratory judgment and

for review of agency action under the APA. WFB requested that the court declare

invalid chapter 173-446 WAC because Ecology’s rule implementing the agricultural

fuel exemption failed to create a workable mechanism to receive CCA exemptions,

which imposed a large financial burden on those in the agricultural and

trucking sectors. WFB argued that Ecology exceeded its statutory authority and

acted in an arbitrary and capricious manner by implementing a rule that was contrary

to the CCA, and that Ecology wrongly denied WFB’s petition for rule making, which

could have presented an opportunity to fix the original rule.

The superior court dismissed WFB’s action with prejudice. WFB sought

this court’s direct review, and we retained the case.

ANALYSIS

Under Washington’s APA, a rule promulgated by an agency is valid

unless it is unconstitutional, exceeds the statutory authority of the agency,

was adopted without compliance with statutory rule-making procedures, or

is arbitrary and capricious. RCW 34.05.570(2)(c). Other agency actions

are reviewed for similar considerations, including whether the action exceeds

the agency’s statutory authority or is arbitrary and capricious. RCW 34.05.570(4)(c).

The party challenging an agency action bears the burden to demonstrate

8 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

its invalidity. RCW 34.05.570(1)(a). Additionally, relief will be granted only

if the invalid action substantially prejudiced the party seeking to invalidate it.

RCW 34.05.570(1)(d).

A. Statutory Authority

WFB argues that Ecology exceeded its statutory authority by adopting a rule

applying the CCA’s agricultural exemption exclusively to suppliers rather than farm

fuel users, which allows suppliers to impose surcharges. Ecology agrees that its rule

places the point of regulation on fuel suppliers, not farm fuel users, but asserts that

the rule is consistent with the plain language and statutory framework of the CCA

and is therefore within its statutory authority. We agree and hold that Ecology did

not exceed its statutory authority.

Administrative rules are presumptively valid. Spokane County v.

Dep’t of Fish & Wildlife, 192 Wn.2d 453, 457, 430 P.3d 655 (2018);

Wash. Fed’n of State Emps. v. Dep’t of Gen. Admin., 152 Wn. App. 368, 378,

216 P.3d 1061 (2009). Agency rules are invalid where they are “inconsistent” with

the statutes they implement. Bostain v. Food Express, Inc., 159 Wn.2d 700, 715,

153 P.3d 846 (2007). But where a rule is “reasonably consistent” with the

underlying statute, the rule should be upheld. Id.; Campbell v.

Dep’t of Soc. & Health Servs., 150 Wn.2d 881, 892, 83 P.3d 999 (2004).

WFB bears the burden of demonstrating the invalidity of Ecology’s action and

9 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

must show “compelling reasons” why the rule conflicts with the intent and

purpose of the legislation. See RCW 34.05.570(1)(a); see also Weyerhaeuser Co. v.

Dep’t of Ecology, 86 Wn.2d 310, 317, 545 P.2d 5 (1976).

To determine whether a rule is consistent with a statute, we must engage

in statutory interpretation, where our “objective is to ascertain and

carry out the Legislature’s intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC,

146 Wn.2d 1, 9, 43 P.3d 4 (2002); Dep’t of Fish & Wildlife, 192 Wn.2d at 457.

Statutory interpretation is a question of law we review de novo. Campbell & Gwinn,

146 Wn.2d at 9. We discern the plain meaning by considering the language of the

statute and related statutes. Id. at 10-11. It is well established that ‘“[t]he drafters of

legislation . . . are presumed to have used no superfluous words and we must accord

meaning, if possible, to every word in a statute.”’ In re Recall of Pearsall-Stipek,

141 Wn.2d 756, 767, 10 P.3d 1034 (2000) (alterations in original) (quoting

Greenwood v. Dep’t of Motor Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975)).

WFB argues that in promulgating the cap and invest rule in

chapter 173-446 WAC, Ecology exceeded its authority under the CCA,

former RCW 70A.65.080 (2022), because Ecology failed to create a system

exempting farm fuel users from paying surcharges when purchasing fuel for

agricultural purposes. Specifically, WFB claims that the CCA’s agricultural fuel

exemption applies to end users of fuel, not suppliers. In other words, WFB asserts

10 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

that the plain language and structure of the CCA demonstrates that the legislature

intended to exempt farmers—the end users of agricultural fuel—from increased fuel

costs.

In support of this assertion, WFB emphasizes that the CCA states that Ecology

must maintain the agricultural exemption “in order to provide the agricultural sector

with a feasible transition period” and places the decision of whether to seek

the exemption on agricultural users by providing that the “exemption is available

only if a buyer of motor vehicle fuel or special fuel provides the seller with

an exemption certificate.” Former RCW 70A.65.080(7)(e)(i)-(ii) (emphasis added).

WFB argues further that the user-focused purpose of the exemption is reinforced

by the CCA’s reference to RCW 82.08.865, which exempts farm fuel users from

business and operation taxes as well as sales for agricultural purposes. Thus, WFB

would have us conclude that the legislative intent is that those in the agricultural

sector be absolved of the costs associated with the cap and invest program;

if we so concluded, WFB contends we would have to find that Ecology’s regulations

are inconsistent with the plain statutory meaning of the CCA.

We decline to adopt WFB’s position because the plain language of the CCA

places the point of regulation on fuel suppliers, not end users. The CCA generally

restricts fuel suppliers from selling more than a certain allowance of fuel unless they

have an exemption certificate from the buyer showing that the fuel is going to be

11 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

used exclusively for agricultural purposes by a farm fuel user.

RCW 70A.65.080(1)(d); former 70A.65.080(7)(e)(i). The CCA imposes compliance

obligations on covered entities, including large “supplier[s] of fossil fuel.”

RCW 70A.65.080(1)(d) (emphasis added). The CCA indicates that fuel suppliers are

permitted to exceed the emissions cap if the supplier can demonstrate that the excess

emissions were used exclusively for agricultural and related transportation purposes.

Id.; former RCW 70A.65.080(7)(e)(i)-(ii); see also Campbell & Gwinn, 146 Wn.2d

at 11. As fuel suppliers are the covered entities regulated by the CCA, fuel suppliers

(not end users) are the entities that can claim agricultural exemptions for fuel used

for agricultural purposes. RCW 70A.65.080(1)(d); former RCW 70A.65.080(7).

While agricultural fuel users benefit from this exemption, the CCA does not

directly regulate those end users. Although the CCA predicates a supplier’s

eligibility to claim agricultural exemptions on the ultimate end-use of the fuel, the

exemptions expressly apply to supplier “emissions [that] are exempt from coverage

in the program,” not end users. Former RCW 70A.65.080(7)(e)(i)-(ii)

(emphasis added).

WFB’s argument about the CCA’s reference to RCW 82.08.865 is

similarly misplaced. Former RCW 70A.65.080(7)(e)(i) defines “agricultural

purposes” and “farm fuel user” as having the same meanings as provided in

RCW 82.08.865, which defines those terms for purposes of a tax exemption. But the

12 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

definition of those terms does not modify the definition of “covered entities”—

which includes suppliers, not fuel users—or the general language of the agricultural

exemption that applies to the fuel itself.

WFB has not met its burden to show “compelling reasons” why

Ecology’s rule conflicts with the intent and purpose of the CCA’s

agricultural exemption. RCW 34.05.570; Weyerhaeuser, 86 Wn.2d at 317. Instead,

Ecology’s rule is “reasonably consistent” with the CCA and therefore is a valid rule

that does not exceed the scope of the agency’s statutory authority. Bostain, 159

Wn.2d at 715; Campbell, 150 Wn.2d at 892. The chart below is a side-by-side

demonstration of the relevant CCA provisions setting out the agricultural exemption

(left) and the rule promulgated by Ecology to carry out the statutory purpose (right).

See RCW 70A.65.220 (tasking Ecology with adopting rules to implement the

provisions of the CCA).

13 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0 CCA’s Agricultural Exemption Ecology’s Rule Former RCW 70A.65.080(7)(e)(i)-(ii) WAC 173-446-040(2)(b)(iii)-(iv) (7) The following emissions are exempt (2)(b) The following supplier emissions from coverage in the program, regardless of are not covered emissions if the supplier the emissions reported under can demonstrate to ecology’s satisfaction RCW 70A.15.2200 or provided as required as specified under WAC 173-441- by this chapter: 122(5)(d)(xi) that the emissions originate .... from: (e)(i) Motor vehicle fuel or special fuel that is .... used exclusively for agricultural purposes by (iii) Motor vehicle fuel or special fuel a farm fuel user. This exemption is available used exclusively for agricultural purposes only if a buyer of motor vehicle fuel or by a farm fuel user as described in special fuel provides the seller with an WAC 173-441-122(5)(d)(xi)(C).[4] exemption certificate in a form and (iv) Fuels used for transporting manner prescribed by the department. For agricultural products on public highways the purposes of this subsection, “agricultural if it meets the requirements in purposes” and “farm fuel user” have the same RCW 82.08.865 as described in meanings as provided in RCW 82.08.865. WAC 173-441-122(5)(d)(xi)(C). (ii) The department must determine a method This exemption is in effect for emissions for expanding the exemption provided under years 2023 through 2027 and is not (e)(i) of this subsection to include fuels used available for emissions after 2027. for the purpose of transporting agricultural products on public highways. The department must maintain this expanded exemption for a period of five years, in order to provide the agricultural sector with a feasible transition period.

4 WAC 173-441-122(5)(d)(xi) provides: Owners and operators may separately indicate the quantity of each fuel type if the fuel supplier can demonstrate to ecology’s satisfaction that the fuel is used for one of the following purposes: .... (C) Motor vehicle fuel or special fuel that is used exclusively for agricultural purposes by a farm fuel user. The supplier must demonstrate to ecology’s satisfaction that the buyer of the fuel provided the seller with an exemption certificate as described in RCW 82.08.865. Fuel used for the purpose of transporting agricultural products on public highways may be included if it is flagged separately and meets the requirements in RCW 82.08.865. For the purposes of (d)(xi) of this subsection, “agricultural purposes” and “farm fuel user” have the same meanings as provided in RCW 82.08.865 and motor vehicle fuel and special fuel have the same meanings as provided in RCW 82.38.020. 14 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

(Formatting altered.)

Ecology’s rule follows the CCA’s agricultural exemption in both form and

substance. An agency rule need only be “reasonably consistent” with the statute.

Bostain, 159 Wn.2d at 715; Campbell, 150 Wn.2d at 892. This rule satisfies

that standard. The CCA sets out an agricultural exemption to the general mandate

for regulations on emissions for large-scale fuel suppliers, and for fuel suppliers

to qualify for the exemption, the CCA provides that the fuel must be “used

exclusively for agricultural purposes by a farm fuel user,” which Ecology expressly

reflected in its rule. Compare RCW 70A.65.080(1)(d);

former RCW 70A.65.080(7)(e)(i)-(ii), with WAC 173-446-040(2)(b)(iii). The CCA

also requires Ecology to determine a method for expanding the exemption to include

fuels used for transporting agricultural products on public highways. Former

RCW 70A.65.080(7)(e)(ii). Ecology did just that by promulgating a rule exempting

fuels used for that precise purpose, those “used for transporting agricultural products

on public highways.” WAC 173-446-040(2)(b)(iv).

At its heart, WFB’s challenge seems to be a disagreement with the legislature,

not with Ecology. WFB’s concern is that agricultural fuel buyers are not adequately

protected from surcharges on fuel that suppliers are imposing to defray the costs of

complying with the CCA. The CCA was not enacted to protect those in the

agricultural sector from emissions-related costs but rather to reduce emissions from

15 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

large-scale greenhouse gas emitters in an effort to address climate change—to

“increase resilience of our communities, natural resource lands, and ecosystems”

and to “prevent and reduce impacts to communities and our environment and

improve their ability to recover.” RCW 70A.65.005(1), .020. The legislature did not

grant Ecology the statutory authority to regulate fuel sales in the CCA. Absent this

authority, Ecology does not have the power to require fuel suppliers to stop imposing

surcharges. RCW 34.05.570(4)(c)(ii) (agency action must not be “[o]utside the

statutory authority of the agency or the authority conferred by a provision of law”).

In accordance with the CCA, Ecology has determined a method for fuel

suppliers to use a DOR form as the exemption certificate to prove fuel sales fall

under the agricultural exemptions. Compare former RCW 70A.65.080(7)(e)(i), with

WAC 173-446-040(2)(b)(iii). With the CCA restrictions on fuel sales, fuel suppliers

will have to bear certain economic losses, and fuel suppliers have autonomy to

decide how to offset those losses, including whether to impose surcharges on all fuel

or on only nonexempt fuel. Although WFB takes issue with the imposition of

surcharges on those in the agricultural sector, nothing in the CCA precludes

fuel suppliers from doing so. This complaint is outside of Ecology’s purview;

that policy-level decision remains within that of the legislature. See Rios v.

Dep’t of Lab. & Indus., 145 Wn.2d 483, 510, 39 P.3d 961 (2002)

(Alexander, C.J., concurring) (noting agency discretion is limited to terms of the

16 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

statutory scheme providing the agency its authority); see also Campbell & Gwinn,

146 Wn.2d at 18 n.9 (directing policy issues to the legislature because “[i]t is

inappropriate for this court to rewrite statutes”). Ecology carried out the directive

of the legislature.

WFB also argues that the CCA’s agricultural exemption is mandatory for

suppliers, not optional. Consequently, WFB contends that even if this court

determines that Ecology lacks authority to provide the benefits of the exemption

directly to farm fuel users, we should find that the plain language of the CCA

requires the reporting requirement to be mandatory for suppliers. According to

WFB, under Ecology’s rules, suppliers may, but are not required to, distinguish

between farm fuel used for agricultural purposes and fuel used for nonexempt

purposes, and the exemption certificate for fuel used for agricultural purposes is

meaningless if fuel suppliers impose surcharges to the costs of exempt fuel.

The rule at issue is WAC 173-441-122(5)(d)(xi)(c) (the emissions reporting

rule), which provides that for “[m]otor vehicle fuel or special fuel that is used

exclusively for agricultural purposes by a farm fuel user,” “[t]he supplier must

demonstrate to [E]cology’s satisfaction that the buyer of the fuel provided the seller

with an exemption certificate as described in RCW 82.08.865.” RCW 82.08.865(1)

indicates that the “exemption is available only if the buyer provides the seller with

an exemption certificate in a form and manner prescribed by the department.”

17 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

See also former RCW 70A.65.080(7)(e)(i) (same).

The parties disagree as to whether a challenge to that emissions reporting rule

is before this court. Ecology argues that since WFB failed to request invalidation

of any provision of chapter 173-441 WAC in its petition for review of agency action

before the superior court, any arguments regarding WAC 173-441-122 are not

properly before us. See CP at 6 (petition for declaratory judgment and for review of

agency action seeking relief only from “Ecology’s adoption of the regulatory

framework under WAC 173-446” (emphasis added)). WFB contends that it

challenged both chapters 173-441 WAC and 173-446 WAC directly to Ecology in

its petition for rule making, and the petition for declaratory judgment and review of

agency action included that request for relief by reference. See CP at 627 (petition

for rule making, arguing that “WAC 173-446-040(2)(b) and WAC 173-441-

122(5)(d)(xi) create an arbitrary exemption process that is not consistent with

[RCW] 70A.65.080(7)(e)(i)-(ii)”), 6 (petition for declaratory judgment and review

of agency action “seek[ing] judicial review of Ecology’s denial of their petition for

rulemaking, as well as Ecology’s rules adopted under WAC 173-446”). Although

there was a general reference to WFB’s petition for rule making (to the agency),

since WFB failed to request invalidation of any provision within chapter

173-441 WAC in its petition for review of agency action to the superior court, that

rule making file is not included in the agency record; thus, any arguments regarding

18 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

the validity of WAC 173-441-122 were not before the superior court and are not now

properly before us. See St. Joseph Hosp. & Health Care Ctr. v. Dep’t of Health,

125 Wn.2d 733, 745, 887 P.2d 891 (1995) (declining to decide on the validity

of a rule where the rule making file was not part of the record).

Even if WFB had properly raised its attack on the validity of the emissions

reporting rule in chapter 173-441 WAC by broadly challenging the regulatory

framework of the cap and invest rule in chapter 173-446 WAC, WFB has not

demonstrated that any of the rule provisions are “inconsistent” with the CCA.

Bostain, 159 Wn.2d at 715. Nowhere does the CCA mandate reporting

of exempt emissions. WFB argues that the CCA mandates suppliers to report exempt

fuel uses because it says Ecology “‘must determine a method for expanding

the exemption . . . to include fuels used for the purpose of transporting agricultural

products on public highways.’” Opening Br. at 50-51 (alteration in original) (quoting

former RCW 70A.65.080(7)(e)(ii)). But Ecology is the subject of “must” in that

provision, not emissions or the reporting of those emissions. That “must” requires

only that Ecology expand the exemption to a separate subset of emissions

(transporting agricultural products); it does not require that Ecology impose

mandatory reporting of exempt emissions. Former RCW 70A.65.080(7)(e)(ii).

The legislature has expressly mandated reporting of certain categories

of emissions in other related statutes, such as the Washington Clean Air Act, but

19 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

chose not to do so in the CCA. See RCW 70A.15.220(5)(a)(i) (providing “the rules

must require that . . . [e]missions of greenhouse gases resulting from the combustion

of fossil fuels be reported separately from emission of greenhouse gases resulting

from the combustion of biomass” (emphasis added)); see also Regence Blueshield

v. Off. of Ins. Comm’r, 131 Wn. App. 639, 650, 128 P.3d 640 (2006) (contrasting

“may” as permissive language with “shall” as mandatory language). The absence of

plain language mandating reporting in the CCA indicates the statute is consistent

with Ecology’s rule to make reporting optional for suppliers. The legislature has also

amended the CCA and continues to consider further amendments, such as removing

a five-year limitation on agricultural exemptions and mandating payments to those

in the agricultural sector. See S.B. 5630, 69th Leg., Reg. Sess. (Wash. 2025). At this

juncture, the legislature has not amended the CCA’s voluntary exemption reporting

framework.5

Ecology’s rule is reasonably consistent with the CCA’s agricultural

exemption substantively and structurally. Compare WAC 173-446-040(2)(b)(iii)-

(iv), with former RCW 70A.65.080(7)(e)(i)-(ii). Ecology’s rule is reasonably

consistent with the plain language of the CCA, which defines fuel suppliers (not end

5 WFB also appears to argue that Ecology acted outside its statutory authority and in an arbitrary and capricious manner by subsequently denying its petition for rule making. We reject that argument because it recycles WFB’s former argument that the denial was based on a flawed interpretation that the CCA regulates suppliers rather than end users. WFB’s issue here likewise seems to be with the substance of the original rule and does not provide anything new. 20 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

users) as the covered entities that can claim agricultural exemptions for fuel used for

agricultural purposes. RCW 70A.65.080(1)(d); former RCW 70A.65.080(7)(e);

Bostain, 159 Wn.2d at 715; Campbell, 150 Wn.2d at 892. Likewise, Ecology’s

voluntary exemption reporting framework is also reasonably consistent with the

CCA because the CCA does not require Ecology to impose mandatory reporting of

exempt emissions.

We presume Ecology’s rules are valid and conclude that WFB did not satisfy

its burden of demonstrating “compelling reasons” that Ecology’s rules conflict with

the intent and purpose of the CCA, which are both aimed at reducing greenhouse gas

emissions from the largest emitting suppliers, while providing more flexibility for

those in the agricultural sector. Spokane County, 192 Wn.2d at 457;

RCW 34.05.570(1)(a); Weyerhaeuser, 86 Wn.2d at 317. Thus, we hold that Ecology

did not exceed its statutory authority.

B. Arbitrary and Capricious Rule Making

WFB argues that Ecology acted in an arbitrary and capricious manner by first

adopting an unworkable agricultural exemption and again by denying WFB’s

subsequent petition for rule making after being alerted to the pitfalls of the

exemption. We reject WFB’s arguments and hold that Ecology did not act in an

arbitrary and capricious manner.

We must give due deference to the specialized knowledge and expertise

21 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

of an administrative agency. Port of Seattle v. Pollution Control Hr’gs Bd.,

151 Wn.2d 568, 595, 90 P.3d 659 (2004); Schneider v. Snyder’s Foods, Inc.,

116 Wn. App. 706, 716, 66 P.3d 640 (2003). The legislature charged Ecology

with promulgating a rule to implement the agricultural exemption of the CCA

in former RCW 70A.65.080(7)(e)(ii). Thus, “Ecology is in a far better position

to judge what is in the public interest regarding” an agricultural exemption

to a broader effort to address climate change through greenhouse gas emissions.

Hillis v. Dep’t of Ecology, 131 Wn.2d 373, 396, 932 P.2d 139 (1997) (courts give

“substantial judicial deference” to agencies where factual matters are “close to the

heart of the agency’s expertise”); cf. Port of Seattle, 151 Wn.2d at 612 (finding that

because “Ecology is the agency charged with interpreting and applying

the water code, its interpretation of a provision deserves deference, so long as

that interpretation is not contrary to the plain language of the statute”);

see also About Us,6 WASH. STATE DEP’T OF ECOLOGY (stating Ecology’s mission is

“[t]o protect, preserve, and enhance Washington’s environment for current and

future generations”); see also Air & Climate,7 WASH. STATE DEP’T OF ECOLOGY

(listing “Air & Climate” as one of Ecology’s focus areas and stating Ecology

“regulate[s] unhealthy emissions from vehicles, burning, and industrial activities to

6 https://ecology.wa.gov/about-us [https://perma.cc/2RPJ-RN8S] 7 https://ecology.wa.gov/air-climate [https://perma.cc/S6FB-SFPD] 22 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

help protect air quality and reduce greenhouse gases that warm the planet”).

Although such deference does not extend to rule making that is arbitrary and

capricious, WFB bears a heavy burden to show Ecology’s actions rise

to that level. Pierce County Sheriff v. Civ. Serv. Comm’n,

98 Wn.2d 690, 695, 658 P.2d 648 (1983); Schneider, 116 Wn. App. at 716. As we

have stated repeatedly, rule making is arbitrary and capricious when an agency

engages in “willful and unreasoning action, taken without regard to or consideration

of the facts and circumstances surrounding the action.” Abbenhaus v. City of Yakima,

89 Wn.2d 855, 858, 576 P.2d 888 (1978); see also Pierce County Sheriff,

98 Wn.2d at 695; State v. Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980).

“Where there is room for two opinions, an action taken after due consideration

is not arbitrary and capricious even though a reviewing court may believe it

to be erroneous.” Abbenhaus, 89 Wn.2d at 858-59; Lane v. Port of Seattle,

178 Wn. App. 110, 126, 316 P.3d 1070 (2013). We should not “‘undertake to

exercise the discretion that the legislature has placed in the agency.’” Port of Seattle,

151 Wn.2d at 589 (quoting RCW 34.05.574(1)).

First, WFB argues Ecology acted in an arbitrary and capricious manner

by adopting an agricultural exemption framework that is unworkable for those in the

agricultural sector. Opening Br. at 56-59. Specifically, WFB asserts that Ecology

recognized the difficulties of tracing fuel to an exempt agricultural end use but still

23 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

created an exemption program that exempts fuel only if the buyer of the fuel provides

the seller with an exemption certificate. Id. Simply stated, WFB alleges that Ecology

acknowledged the problems with its rule but failed to consider other alternatives,

which amounts to “willful and unreasoning’” action. Id. at 58-59 (quoting Puget

Sound Harvesters Ass’n v. Dep’t of Fish & Wildlife, 157 Wn. App. 935, 945, 239

P.3d 1140 (2010)). But WFB conflates enforcement of the CCA with Ecology’s duty

to determine a means for fuel suppliers to claim exemptions. See Abbenhaus, 89

Wn.2d at 858; see also Lane, 178 Wn. App. at 126. Ecology’s acknowledgement of

the challenges of promulgating a workable agricultural exemption framework shows

quite the opposite of willful, unreasoning action: Ecology engaged in “due

consideration” regarding the implementation of the exemption within the confines

of the statute. See Abbenhaus, 89 Wn.2d at 858-59.

For instance, Ecology recognized that the current exemption framework

would make it challenging to “create a paper-trail of receipts showing that fuel

produced was end-used for [agricultural] purposes.” CP at 247. This challenging

accounting issue does not indicate that Ecology disregarded its statutory mandate.

Instead, it indicates that Ecology anticipated it would be challenging to prevent

incorrect or fraudulent CCA exemption claims. In response, Ecology—consistent

with the CCA’s mandate—adopted a voluntary exemption reporting system, which

incentivizes fuel suppliers to accurately document and report exempt sales. Although

24 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

WFB is correct that optional exemption certificates do not ameliorate surcharges on

exempt fuel, WFB does not demonstrate this is an unreasonable method for claiming

exemptions so as to rise to the level of arbitrary and capricious decision-making.

See Abbenhaus, 89 Wn.2d at 858-59 (leaving room for more than one opinion and

deferring to agency decisions that were made with due consideration).

Additionally, Ecology considered other alternatives and determined

they were not feasible. For example, while brainstorming a method for expanding

the agricultural exemption to include fuels used for the purpose of transporting

agricultural products on public highways, Ecology drafted an implementation plan.

The plan included a consultation “with [the Department of Licensing] and

DOR to determine a method, and to coordinate on legislative or budget proposals

needed to authorize implementation of this exemption.” CP at 241.

Ecology considered, as an alternative, “the easiest way” to implement the expansion

of the agricultural exemption framework, which would be to use “dyed fuel”

for agricultural use. Id. “Dyed fuel” is diesel fuel with red dye to visually signify

that there are no federal or state fuel taxes paid and is often used for farming

equipment. Dyed Diesel, WASH. STATE DEP’T OF LICENSING. 8 Thus, use of dyed fuel

would avoid added costs and ensure easy implementation of the agricultural

8 https://dol.wa.gov/vehicles-and-boats/prorate-and-fuel-tax/fuel-tax/dyed-diesel [https://perma.cc/J5MQ-NNLA] 25 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

exemption. But as Ecology noted, “it is currently illegal to drive on a highway

using dyed fuel (i.e., for agricultural use),” meaning that method was not “viable.”

CP at 241; see also RCW 82.38.072; WAC 308-77-114. This demonstrates that

Ecology thought through alternative regulatory structures and determined none were

viable. Ecology’s due consideration of alternative methods and the challenges with

the current agricultural exemption framework does not rise to the level of arbitrary

and capricious action. See Abbenhaus, 89 Wn.2d at 858-59.

Second, WFB argues that Ecology’s subsequent denial of WFB’s petition for

rule making was arbitrary and capricious. Opening Br. at 59-64. Specifically, it

asserts Ecology “knew that some agricultural fuel users were paying CCA

surcharges on exempt fuel” and denied further rule making based on a “flawed

interpretation that the CCA only allowed it to regulate suppliers.” Id. at 61.

WFB also argues Ecology did not take significant actions to address the problems

raised in the work group regarding regulatory exposure for suppliers who have no

way to verify the use of fuel they sell and the imposition of surcharges on farm fuel

users. Id. at 61-63.

WFB relies on Rios as an example of arbitrary and capricious action. 145

Wn.2d 483. At issue in that case was whether the Department of Labor and Industries

(L&I) acted in an arbitrary and capricious manner when it adopted a rule

recommending but not requiring a blood testing program monitoring cholinesterase

26 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

levels for agricultural pesticide handlers. Id. at 487-88. The court held that L&I’s

failure to act constituted arbitrary and capricious action because L&I “had already

invested its resources in studying cholinesterase-inhibiting pesticides and because

the report of its own team of technical experts had, in light of the most current

research, deemed a monitoring program both necessary and doable.” Id. at 508.

Rios is inapposite to our analysis. Unlike in Rios, where the work group report

found a monitoring program necessary and feasible before denying the request for

rule making, id., here, Ecology’s work group report offered no consensus that

Ecology’s rules and guidance were unworkable, and it was published after Ecology

denied the petition for rule making. Ecology’s decision not to change the rule does

not render it arbitrary and capricious because the rule in and of itself is reasonably

consistent with the CCA. Compare WAC 173-446-040(2)(b)(iii)-(iv), with former

RCW 70A.65.080(7)(e)(i)-(ii); see also Bostain, 159 Wn.2d at 715; Campbell,

150 Wn.2d at 892.

Ecology demonstrated its due consideration by providing reasons for its denial

of WFB’s petition for rule making. Namely, Ecology issued two guidance

documents and an exemption certificate form as its selected method for claiming

exemptions on fuel used exclusively for agricultural purposes, which has been

successfully implemented by fuel suppliers to track and document sales of exempt

fuels without assessing surcharges on those fuels. Ecology explained that the

27 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

successful implementation demonstrates that there was no need for a change to

Ecology’s rule. Ecology also acknowledged that fuel suppliers imposing surcharges

on farm fuel users deprives end users of the benefits of the CCA exemptions, and in

response, it established a work group to develop recommendations related to

reimbursement. But as Ecology explained, it lacked authority to address this issue

through rule making. The legislature did not appropriate funds to be used for the

requested refunds, and agencies lack authority to allocate money from the state

treasury absent specific statutory authority. WFB’s opinion is that the exemption

method is impractical, but “there is room for two opinions,” and “an action taken

after due consideration is not arbitrary and capricious.” Abbenhaus, 89 Wn.2d at

858-59.

Therefore, WFB failed to demonstrate that Ecology engaged in “willful and

unreasoning action” by adopting an agricultural exemption that, while unsatisfactory

to WFB, was reasonably consistent with the CCA and was taken with due

consideration of the facts and circumstances. Id. at 858. WFB likewise failed to meet

its burden in arguing that Ecology’s denial of WFB’s subsequent petition to reopen

rule making constituted arbitrary and capricious action when, again, the rule in and

of itself was reasonably consistent with the CCA, and Ecology made a reasoned

decision to provide guidance on how to claim the exemption under the existing rule

and lacked authority to take the specific actions WFB requested. Bostain,

28 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

159 Wn.2d at 715; Campbell, 150 Wn.2d at 892. We give due deference to Ecology’s

specialized knowledge and expertise and hold that Ecology did not act in an arbitrary

and capricious manner. Schneider, 116 Wn. App. at 716.

CONCLUSION

The legislature enacted the CCA to limit greenhouse gas emissions in an effort

to address the harms of climate change to our environment and communities.

Although the legislature exempted fuel used exclusively for agricultural purposes

from these emissions limits if the buyer of the fuel provides the seller with an

exemption certificate, the supplier-focused statute does not directly provide

protections for those in the agricultural sector from emissions-related costs. Ecology

promulgated a rule to carry out the expressed statutory purpose of the CCA and

otherwise lacks statutory authority to provide refunds to those in the agricultural

sector. WFB raises concerns regarding Ecology’s method for claiming an

agricultural exemption being unworkable, but Ecology is not required to implement

WFB’s preferred exemption framework; Ecology developed its exemption

certificate framework through due consideration, which provides a method for

tracking and reporting agricultural exemptions that is currently being utilized by

suppliers and is reasonably consistent with the CCA.

29 Washington Farm Bureau v. Washington State Department of Ecology No. 103413-0

We affirm. We hold that Ecology’s rule and subsequent denial of WFB’s

petition for further rule making did not exceed its statutory authority and did not

constitute arbitrary and capricious action.

______________________________

WE CONCUR:

___________________________ ______________________________

___________________________ ______________________________ Madsen, J.P.T.

___________________________ ______________________________ Yu, J.P.T.

30 Washington Farm Bureau v. Washington State Dep’t of Ecology, No. 103413-0 (González, J., concurring)

No. 103413-0 GONZÁLEZ, J. (concurring) — Deru kui wa utareru (出る杭は打たれる).1

No justice on this court could do their work without the assistance of

brilliant and hardworking law clerks and other staff. I have signed the majority

opinion written with the assistance of the author’s outstanding law clerk, Bailey

Warrior Pahang.

Justice Montoya-Lewis will leave this court in January 2027 when her term

ends since she has decided not to run for another term. She has done exemplary

work these past seven years. Readers of our recent opinions may have noticed that

she has been thanking her staff in her opinions without any problems except for an

1 “Deru kui wa utareru” (出る杭は打たれる) is a Japanese proverb that means “the post that protrudes will be hammered down.” It is often replaced with the malaprop “Deru kugi wa utareru” (出る釘は 打たれる), which means “the nail that protrudes up will be hammered down.” The meanings are quite different in that protruding nails may be dangerous and should be made flush by hammering. Fences, on the other hand, may benefit from some variations without posing any danger. Unfortunately, those who are exceptional, outspoken, or challenge conformity face criticism, jealousy, or pressure to conform. Not all of our traditions are venerable. 1 Washington Farm Bureau v. Washington State Dep’t of Ecology, No. 103413-0 (González, J., concurring)

opaque reference to it in the concurrence in In re Recall of Clouse, 6 Wn.3d 42, 54,

584 P.3d 386 (2026) (Madsen, J., concurring).

This time, a majority of this court refused to sign the majority opinion

assigned to her with that expression of gratitude included, so it goes out without it.2

I understand why some justices object to thanking a staff member in an

opinion, and I will continue to take all the credit in my opinions for the work of

this court’s extraordinary staff. But I lament that we are not flexible enough to

support a different cultural tradition. We should respect that acting within that

2 I respectfully disagree with my concurring colleague. While justices may assert that they have the right to absolute secrecy in their internal deliberation after an opinion has been issued, no such right exists. Many justices have donated their papers to libraries. See generally Tony Mauro, Lifting the Veil: Justice Blackmun’s Papers and the Public Perception of the Supreme Court, 70 MO. L. REV. 1037, 1039 (2005) (discussing Justice Blackmun’s donated papers); Elizabeth Garrett, New Voices in Politics: Justice Marshall’s Jurisprudence on Law and Politics, 52 HOW. L.J. 655, 667 (2009) (discussing Justice Marshall’s donated papers). Many of Justice Utter’s working files on cases of significance are at our state archives. Wash. Sec. of State, Wash. State Archives, Sup. Ct. Just. Papers, Robert Utter; see also, e.g., Frederick G. Hamley Papers, 1934-1956, ARCHIVES W. (“The Washington Supreme Court subgroup contains opinions, apparently drafted by Hamley before the justices discussed the cases. Of particular significance are notes Hamley kept on cases heard by the court, 1949-1956. On printed forms he briefly noted the positions of his fellow judges and himself on each case. Also included are typed drafts and handwritten notes on some cases.”), https://archiveswest.orbiscascade.org/ark:80444/xv16767 [https://perma.cc/D5KF-C866]. Indeed, opinions of this court have referred to internal proceedings before. For example, a former chief justice wrote separately to observe in an infamous case that “[t]his case was heard En Banc February 26, 1960. In justice to the writer of the foregoing [majority] opinion, it should be stated that it was not reassigned to him for opinion until September 20, 1960.” Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 355, 357 P.2d 702 (1960) (separate opinion of Weaver, C.J.), overruled by Garfield County Transp. Auth. v. State, 196 Wn.2d 378, 473 P.3d 1205 (2020). 2 Washington Farm Bureau v. Washington State Dep’t of Ecology, No. 103413-0 (González, J., concurring)

cultural tradition, one of our colleagues has decided to recognize out loud those

who assist us and make us better.

With these observations, I respectfully concur.

3 Wash. Farm Bureau v. Wash. State Dep’t of Ecology

No. 103413-0

GORDON McCLOUD, J. (concurring)—The debate in this court over

a withdrawn footnote has now delayed the issuance of this opinion for more

than a month.

The debate about whether to adopt one particular academic convention

for expressing gratitude in published articles, about whether that method of

expressing gratitude implicates a particular heritage or value system, and

about whether one justice needs to speak up for another justice who is more

than capable of speaking up for herself is certainly interesting. But there’s

another debate going on in this case, and it is also interesting: whether a

Department of Ecology rule implementing an aspect of the Climate

Commitment Act 1 is lawful. Our main job is to resolve that legal dispute.

When and how to express gratitude, whether and when to elevate

transparency, and how best to foster respect for the court are also important.

And I welcome the continuation of that discussion elsewhere.

1 Former RCW 70A.65.080(7)(e)(ii) (2022). Wash. Farm Bureau v. Wash. State Dep’t of Ecology, No. 103413-0 (Gordon McCloud, J., concurring)

But not in the course of debating a withdrawn footnote in an otherwise

unanimous decision.

________________________________________ Madsen, J.P.T.

______________________________________ Yu, J.P.T.

2 Washington Farm Bureau v. Washington State Dep’t of Ecology

MADSEN, J. ∗ (concurring)—I agree with the majority. However, I write

separately to give context to the concurrence by Justice González, which reveals

confidential information about the internal actions of the court. Six justices agreed with

the following concurrence/dissent before the majority revised:

I completely agree with the majority opinion, however I decline to join the asterisk located above footnote 1 as it is outside of our appellate record. RAP 9.1(a) (appellate courts consider only the record on review). It is also a practice with which I disagree. I understand the desire to recognize the contributions of dedicated court staff, but “[a] majority opinion is the product of a collegiate court and . . . when filed, it no longer retains any proprietary aspect so far as the drafter is concerned . . . [i]t becomes an institutional product that is owned only by the court.” Engberg v. Meyer, 820 P.2d 70, 170 (Wyo. 1991) (Thomas, J., dissenting). Similar to the United States Supreme Court, this court “is a collegial institution, and its decisions reflect the views of a majority of the sitting Justices.” Holtzman v. Schlesinger, 414 U.S. 1304, 1313, 94 S. Ct. 1, 38 L. Ed. 2d 18 (1973). I do not mean to detract from the work of law clerks, student volunteers, and staff—they are invaluable resources and essential to the work of this court. I write separately because a majority opinion represents

∗ Justice Barbara Madsen is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a). No. 103413-0 (Madsen, J.P.T., concurring)

the judgment of the court speaking with one voice, not the views or work product of any individual justice or clerk. 1 At best, attribution to a law clerk in a majority opinion may create confusion and invite questions that are left unanswered in the court’s opinion. E.g., Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988) (the practice of attributing credit to a law clerk “may erroneously lead some to believe that the law clerk decided the case”). Law clerks serve vital and instrumental roles; however, it is the justices themselves who make the final determination in cases. In my view, a majority opinion should reflect the judgment of the court as a whole rather than emphasize any one individual’s contribution. Accordingly, I respectfully concur in part and dissent in part.

______________________________________ Madsen, J.P.T.

_________________________________________ Yu, J.P.T.

1 In the rare case that explicit acknowledgments of law clerk contributions are made, they are often authored by federal district court judges. See Parker B. Potter, Jr., Judges Gone Wild, 37 Ohio N.U. L. Rev. 327, 345-360 (2011). In that context, such recognition presents fewer concerns, as a district court judge speaks solely in an individual capacity rather than on behalf of a multimember court, as is the case in the appellate setting.