The three plaintiffs challenging a wind and solar power facility in the Horse Heaven Hills share in their legal challenges a laundry list of how Gov. Jay Inslee, state agencies and the courts allegedly have violated everything from state environmental protection laws to local land use planning regulations and limited access to proceedings around the decision.

Within hundreds of pages of exhibits, nonprofit Tri-Cities CARES, the Benton County Board of Commissioners and the Confederated Tribes and Bands of the Yakama Nation have asked for the Washington State Supreme Court to review their lawsuits, void the Horse Heaven Hills Clean Energy Center site approval, and require the state’s Energy Facility Site Evaluation Council (EFSEC) to reevaluate its decision permitting it.

“The approved (site certification agreement) is not supported by the administrative record and instead runs contrary to substantial evidence when viewed in light of the whole record presented to EFSEC,” the Yakama Nation argues in its lawsuit.

All three lawsuits were filed in Thurston County Superior Court and are currently awaiting consolidation into a single case as required by state statutes. Mike Faulk, Inslee’s press secretary, declined to comment on the lawsuits, referring to the governor’s quasi-judicial role in the process.

Scout’s motion

Scout Energy, the developer for the wind and solar farm, has filed a motion to intervene in the legal challenges and a hearing was set for Jan. 17.

“The appeals were an anticipated step in the process, and we respect the right of all parties to pursue their legal options,” said Dave Kobus, Scout’s senior project developer for the wind and solar farm, in a statement. “We remain confident in the comprehensive review conducted by EFSEC and trust the judicial system to resolve these matters fairly and efficiently. In the meantime, we are committed to advancing the project to begin delivering clean, reliable energy on a timeline that aligns with Washington’s climate goals.”

EFSEC issued the site certification agreement for the project in November. The council’s decision came about a month after outgoing Gov. Jay Inslee gave his approval for the project in October. If constructed, the wind and solar farm would be the largest clean energy project in the state.

EFSEC initially issued a decision requiring the project be scaled back to mitigate impacts to animal habitat, access to Yakama cultural sites and the long-term effect on the landscape. Inslee rejected that decision and ordered the council to revisit it.

The plaintiffs point to the intervention by Inslee as a major source of their opposition.

The Yakama Nation said that while the original decision scaling back the project was not without repercussions to its members, “the council was clear in its public meetings that it found the need to recommend mitigation and avoidance of the project’s most concerning impacts to viewshed, the state-listed ferruginous hawk and Yakama Nation’s traditional cultural properties.”

All three plaintiffs said the evidence and testimony they offered, ranging from statements by wildlife biologists to energy experts, were wrongly refused or stricken from the record by Administrative Law Judge Adam Torem.

“EFSEC violated its obligation to balance demand for energy with the public interest by not allowing testimony of (Tri-Cities CARES) witnesses on need, grid reliability and project performance, particularly in light of the remand order of the governor which was based on these factors,” Tri-Cities CARES states in its lawsuit.

Processes like the State Environmental Policy Act (SEPA), which identifies and analyzes environmental impacts associated with governmental decisions, and conditional use permits from Benton County also were circumvented or disregarded, the plaintiffs said, which they expect to continue “unless there is a prompt determination by the Supreme Court  that there must be a (final environmental impact statement) prior to the commencement of adjudicative public hearings,” the county argued.

The Yakama Nation also “expressed concerns about Yakama members’ ability to advocate on behalf of their treaty-reserved resources in a culturally appropriate manner” should the council revisit its siting decision in a virtual rather than an in-person or hybrid format. In the end, that hearing was held only virtually, which the Yakama Nation argued was an arbitrary and capricious choice.

Bill would restrict governor’s influence

The controversial wind farm decision also prompted a Kennewick Republican to introduce legislation that would remove the governor from the approval process.

State Sen. Matt Boehnke filed the bill saying the recent EFSEC process to approve a revised site certification agreement for the Horse Heaven wind farm in his district did not properly account for local concerns and gave the governor too much authority.

“Removing the governor from the final approval process would have the added benefits of depoliticizing the process and help make this process more efficient and effective,” Boehnke said in a release. “This bill will apply to any governor and seeks to improve an important state process.”

Boehnke expects the bill to be considered by the Senate Environment, Energy and Technology Committee, of which he is the ranking Republican for the 2025 legislative session.

If passed, the bill is not retroactive or specific to any particular project.