State Supreme Court Upholds Ecology’s Farm Fuel Rules Amid Unusual Internal Dispute Over a Footnote
The Washington State Supreme Court unanimously ruled on June 25, 2026, that the Department of Ecology acted lawfully when it implemented agricultural fuel exemptions under the state’s Climate Commitment Act, dealing a blow to farming and trucking groups seeking relief from emissions-related fuel surcharges.
However, while the participating justices were united on the legal merits of the case, the release of the opinion revealed a highly unusual behind-the-scenes dispute over a footnote that delayed the ruling for more than a month.
The core of the legal challenge in Washington Farm Bureau v. Washington State Department of Ecology centered on the 2021 Climate Commitment Act.
The law created a “cap-and-invest” program that imposes limits on greenhouse gas emissions from Washington’s largest emitters, including major fossil fuel suppliers.
To protect the state’s agricultural sector, the legislature exempted fuel used “exclusively for agricultural purposes by a farm fuel user.”
However, fuel suppliers facing high compliance costs under the CCA began adding surcharges to the wholesale price of their fuels—including the fuel sold to farmers for exempt agricultural use—to offset their economic losses.
Represented by attorneys from Ballard Spahr LLP, the Washington Farm Bureau and the Washington Trucking Association challenged the Department of Ecology’s rules.
They argued that the agency failed to create a workable method for farmers to claim the exemption and avoid the financial burden.
After Ecology denied a petition to rewrite the rules and issue refunds, the Farm Bureau sued, claiming the agency had acted arbitrarily and exceeded its statutory authority.
The state was represented by the Washington Attorney General’s Office.
Thurston County Superior Court Judge Christopher Lanese dismissed the petition with prejudice in July 2024, leading to a direct appeal to the state’s highest court.
Writing for the En Banc court, Justice Raquel Montoya-Lewis affirmed the lower court’s dismissal.
The Court found that the CCA’s plain language places the point of regulation squarely on fuel suppliers as “covered entities,” not on the end-users purchasing the fuel.
Because the Department of Ecology was not granted the statutory authority to regulate fuel prices or sales, it cannot legally stop suppliers from passing their costs down to consumers through surcharges.
“Fuel suppliers have autonomy to decide how to offset those losses, including whether to impose surcharges on all fuel or on only nonexempt fuel,” Justice Montoya-Lewis wrote in the opinion.
“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.”
The Court noted that lawmakers have been considering legislative fixes, citing a 2025 Senate bill that proposed removing a five-year limitation on agricultural exemptions and potentially mandating relief payments to the agricultural sector.
A Court Divided Over a Footnote
While the Court was united 9-0 on the environmental and administrative law questions, the case exposed a sharp division among the jurists regarding judicial traditions.
According to concurring opinions attached to the ruling, the publication of the decision was delayed for over a month because Justice Montoya-Lewis, who is leaving the court at the end of her term in January 2027, originally included a footnote thanking her law clerk, Bailey Warrior Pahang, for her assistance in drafting the opinion.
A majority of the sitting justices refused to sign the opinion unless the acknowledgment was removed, prompting a series of pointed concurring opinions from the bench.
Justice Steven C. González filed a concurrence—joined by Justices Montoya-Lewis and Salvador A. Mungia—lamenting the footnote’s removal.
Opening his opinion with the Japanese proverb Deru kui wa utareru (”the post that protrudes will be hammered down”), González praised the clerk’s work and criticized the Court’s rigidity regarding the expression of gratitude.
“I lament that we are not flexible enough to support a different cultural tradition,” Justice González wrote. “Unfortunately, those who are exceptional, outspoken, or challenge conformity face criticism, jealousy, or pressure to conform. Not all of our traditions are venerable.”
Justice Pro Tempore Barbara A. Madsen wrote a separate concurrence defending the majority’s insistence on removing the footnote.
Joined by Justice Pro Tempore Mary I. Yu, Madsen argued that an appellate majority opinion is an “institutional product” owned by the Court as a whole, not any individual justice or clerk.
She revealed that six justices had been prepared to formally file a concurrence and dissent over the issue before the footnote was removed.
“At best, attribution to a law clerk in a majority opinion may create confusion and invite questions that are left unanswered,” Madsen wrote, noting it “may erroneously lead some to believe that the law clerk decided the case.”
Meanwhile, Justice Sheryl Gordon McCloud expressed clear frustration over the internal squabble.
“The debate in this court over a withdrawn footnote has now delayed the issuance of this opinion for more than a month,” Gordon McCloud wrote in a concurrence also signed by Justices Madsen and Yu.
“The debate about whether to adopt one particular academic convention for expressing gratitude... 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 is lawful. Our main job is to resolve that legal dispute.”
With the legal dispute now officially resolved, Ecology’s current rules stand, and Washington farmers looking for relief from CCA-related fuel surcharges will have to turn their attention to the state legislature.