New Controversies in Wisconsin Administrative Law

Administrative law is enjoying a moment in the sun. Take, for example, the attention recently paid to the subject by the United States Supreme Court, which in a series of opinions (Loper Bright, Corner Post, andJarkesy) marked out a new path forward with respect to important aspects of federal administrative law. This post concerns noteworthy developments in the same field in Wisconsin. At both the federal and state levels, it has become clear that modern administrative law cases often involve disputes over very significant and substantive regulatory power, even when cloaked in what may seem to be procedural minutiae.

in recent years. I explored the topic in a series of writings, beginning in September 2017 with a post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose was to point out what I perceived as a significant makeover in longstanding principles of administrative law in the state, shifting power away from agencies and toward courts and the legislature. Eight years have passed since then, and while the ground has certainly shifted, the fundamental questions remain the same, relating to the uneasy balance of power between Wisconsin agencies, the Wisconsin state legislature, and Wisconsin courts.

The Wisconsin Supreme Court has twice acted to counter the trends I noted in the original post, restoring some of the discretion Wisconsin agencies historically enjoyed. First, as I described in a 2021 post, the court decided two cases (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72wi)) to address the scope of Wis. Stat. § 227.10(2m). That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted’ by statute or by rule. The Clean Wisconsin cases turned on a question of statutory interpretation: whether “explicit” means “specific,” in other words, whether under § 227.10(2m) the agency’s contested authority must be spelled out via “literal enumeration or verbatim mention” of the conditions in a statute or rule, or whether the authority must simply be “expressly conferred and clear.”

The court concluded that even when no statute or rule spells out verbatim the agency’s authority to impose certain disputed permit conditions, an agency “may rely upon a grant of authority that is explicit but broad when undertaking agency action.” Such broad grants of authority, the court found, comply with the requirements of § 227.10(2m). For example, statutes conferring on the Wisconsin Department of Natural Resources (WDNR) “general supervision and control over the waters of the state” and all “necessary powers” to protect the waters of the state, provided sufficiently “explicit” authority for WDNR to impose specific conditions related to groundwater monitoring on a permitted well.

Most recently, this summer the Wisconsin Supreme Court issued its opinion in Evers v. Marklein II, striking down the authority to pause, object to, or suspend administrative rules held by the powerful legislative Joint Committee for Review of Administrative Rules (JCRAR). This was another power shift that I discussed in my 2017 post. The basis for the court’s new ruling was a rather technical matter: JCRAR’s authority to block, suspend, and object to administrative rules was tantamount to legislative action, and therefore failed the constitutional requirements of bicameralism (a bill must pass both houses) and presentment (the bill must be provided to the governor for signature). Technical grounds notwithstanding, Evers v. Marklein II appeared to significantly reduce the legislature’s power to check agency action.

But rather than putting things to rest, the ruling touched off a new round of political maneuvering. First, Democratic Governor Tony Evers sought to finalize a set of new administrative rules without first submitting them to the JCRAR, citing the court’s opinion. Republican leaders responded with a plan to order the Legislative Reference Bureau not to publish any rules prior to review by legislative standing committees, arguing that the court’s opinion removing some authority from the JCRAR did not eliminate review of administrative rules by standing committees. The LRB director agreed, telling a media outlet that “If [the Joint Committee on Legislative Organization] so directs, the LRB will not finalize or publish any proposed administrative rules that have not completed standing committee review.” Many of the rules – which concern various aspects of important state policies – remain in limbo for now.

While the debate over the authority of Wisconsin administrative agencies currently pits the Republican legislature against the Democratic executive, there is always the possibility that those positions could be reversed in the future – just as has happened at the federal level, with a Republican-led EPA now seeking to impose the most ambitious deregulatory agenda in history. For that reason alone, this delicate balance of authority should be examined on more than partisan political terms.

Continue ReadingNew Controversies in Wisconsin Administrative Law

Wisconsin Supreme Court Confirms DNR’s Power to Enforce the Spills Law Amid Increasing Citizen Concerns Over PFAS

The latest edition of the Marquette Law School Poll revealed that 79 percent of registered Wisconsin voters are very or somewhat concerned about a class of emerging contaminants known as PFAS, often called the “forever chemicals,” in their water supply. PFAS have been used across a broad spectrum of commercial applications from firefighting foam to food packaging. They were prized for their resistance to breaking down; ironically, that trait has caused part of the problem, as PFAS are now present throughout the environment.

More recently, scientists have determined that PFAS cause a variety of serious adverse health effects including cancer. Significant quantities of PFAS have been detected in numerous Wisconsin public water distribution networks and private wells. The poll results show that Wisconsinites’ level of concern about PFAS has increased ten percent from last year, and twenty percent over 2022, when the question first appeared in the poll. When the sample is confined to those who have heard about PFAS in their community, a full 90% are very or somewhat concerned about PFAS.

Meanwhile, late last month the Wisconsin Supreme Court sided with the Wisconsin Department of Natural Resources in a dispute over the extent of the DNR’s authority to require responsible parties to clean up releases of PFAS and other emerging contaminants under the state’s “Spills Law,” Wis. Stat. s. 292.11. At its core, the Spills Law requires a person who causes the discharge of a “hazardous substance” (or who possesses or controls a hazardous substance that has been discharged) to notify WDNR of the spill and then to “take the actions necessary to restore the environment”—a potentially time-consuming and expensive process.

We have known for a long time that some substances, such as PCBs, are “hazardous.” But others, such as PFAS, have lurked unknown or undetectable until very recently, hence the name “emerging contaminants.” The statute does not enumerate which “substances” are “hazardous.” Instead, it broadly defines the term to include anything that causes a substantial threat to human health or the environment. Historically, the DNR enjoyed considerable flexibility in determining what qualifies as a “hazardous substance” on an ad hoc basis, sometimes even construing it to include everyday substances (milk, for example, when released in sufficient quantities to sensitive receiving waters).

The central question in the case decided in June, Wisconsin Manufacturers and Commerce, Inc. et al. v. Wisconsin Natural Resources Board, et al., arose over whether WDNR could continue to determine “hazardous substances” on a case-by-case basis, or whether it had to engage in administrative rulemaking to create a list identifying which substances it considered hazardous, and at what quantities or concentrations in the environment. The rulemaking process is lengthy and often controversial, so a decision against DNR would have posed substantial challenges for it, potentially eliminating its ability to respond in real time to spills of emerging contaminants. On the other hand, a list of hazardous substances would provide predictability and certainty to parties responsible for cleanups under the Spills Law. Both the trial court and the court of appeals ruled against DNR and would have required the agency to create the list. The agency would presumably also have had to revise the list via rulemaking whenever it wanted to add a new “emerging contaminant,” a difficult task when considering that PFAS are not a single chemical compound but rather a generalized term for a class of thousands of slightly different substances.

The supreme court reversed, holding in DNR’s favor that the agency could continue its practice of determining whether a release involved a “hazardous substance” based on the individual circumstances of each case. The court held that the statute’s “broad and open-ended” definition of “hazardous substance” is cabined by the requirement that the substance significantly increase mortality or contribute to serious illness in humans, or that it may pose a substantial hazard to human health or the environment.

The court also found no definitional rulemaking requirement in the plain text of the statute, despite the Legislature’s inclusion of such a requirement in other provisions of the Spills Law. In considering how the Spills Law works, context is important, the court observed: “a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose [such a hazard] to the stream’s fish and environment.” Thus, the court thought it was important for DNR to retain some flexibility in interpreting the statute.

Moreover, the court held the DNR’s interpretation did not violate Wis. Stat. s. 227.10(2m), a provision that I have blogged about before. It requires “explicit” statutory or regulatory authority for an agency to “implement or enforce any standard, requirement, or threshold.” The court reiterated its holding in the Clean Wisconsin cases that the statute  “may be satisfied by a grant of authority that is explicit but broad.” The requisite authority was present in the Spills Law itself, the court found.

The court’s affirmation of DNR’s authority to require responsible parties to remediate spills of emerging contaminants such as PFAS on a case-by-case basis is, no doubt, a victory for the agency. It allows DNR to require cleanup for spills not only of PFAS but of any other emerging contaminant that comes along in the future. But it also likely provides some comfort to the 79 percent of Wisconsinites who are concerned about PFAS entering their water supply.

Read the Wisconsin Supreme Court’s opinion here.

Continue ReadingWisconsin Supreme Court Confirms DNR’s Power to Enforce the Spills Law Amid Increasing Citizen Concerns Over PFAS

Resolving the Tension Between Agriculture and Water Quality in Wisconsin

Wisconsin is known for its invaluable array of water resources on the one hand and its heritage as an agricultural powerhouse on the other. At first glance, it seems that Wisconsin policymakers face a dilemma, because these two aspects of the state’s identity can be in tension with one another. The federal government’s most recent National Water Quality Assessment concluded that agricultural runoff and the like are the leading cause of adverse water quality impacts on rivers and streams, and the third-leading cause of such impacts on lakes. On March 18 (which also happened to be National Agriculture Day) the Marquette Water Law and Policy Initiative, part of the Law School’s broader Lubar Center for Public Policy Research and Civic Education, hosted an event to help illuminate a path forward for agriculture and water to coexist. The speakers at the event generally delivered a hopeful message anticipating improved cooperation among farmers, affected citizens, the conservation community, and state and local governments.

The event’s keynote speaker, Dr. Marin Skidmore of the Department of Agricultural and Consumer Economics at the University of Illinois Urbana-Champaign, presented the findings of her team’s study of the effectiveness of local (county-level) regulations targeted at controlling nonpoint source pollution from Wisconsin dairy farms. As Dr. Skidmore explained, by definition nonpoint source pollution does not emanate from a single point; rather, it typically consists of diffuse runoff across broad landscapes. In the case of agriculture, that runoff may carry with it fertilizer or manure that has been applied to farm fields and deposit those pollutants in surface waters. Agriculture is a major economic and cultural force in the state, she acknowledged, but it also often creates serious water quality problems resulting from the “enormous nutrient [manure] output coming from dairy production.” That can impact recreational activities and even public health, she said.

The pollutant load can cause hypoxia, or “dead zones” in surface waters, and in some Wisconsin communities, can contaminate drinking water supplies with elevated levels of nitrates and bacteria. This has led to substantial community opposition to large-scale “concentrated animal feeding operations” – defined by state law as an animal feeding operation with 1,000 animal units or more – in some parts of the state.

Skidmore and her team set out to find a way to test Wisconsin’s efforts to manage the pollution’s impacts while maintaining an industry so important to the state. Nonpoint source pollution is exceedingly difficult to control. It isn’t well regulated under federal or state laws, including the Clean Water Act, Skidmore said, partly because “we don’t have a reliable way to map and quantify the amount of pollution coming from one single farm.” As a result, policy makers can’t use traditional regulatory tools such as command-and-control regulation, pollution taxes, or a cap-and-trade system.

But there is hope, Skidmore said, because “Wisconsin is innovative.” Its leaders have tried solutions that other states haven’t. Skidmore cited the state’s farmer-led watershed groups, farmland preservation program, and water quality trading program as examples. But the program that most captured the attention of Skidmore and her research team was the state government’s decision to delegate the option to regulate manure management to county governments – a program unheard of in other states. The delegation was intended not as a substitute for state authority, but as a complement or addition to it. Perhaps the counties could serve as “laboratories of democracy” for the state, in the same way that the states have sometimes done for the federal government.

So what happened when counties got involved in writing and enforcing local manure management ordinances? By comparing many different county ordinances – and the resulting water quality benefits (or lack thereof) – Skidmore’s team found that some aspects of the ordinances had a measurable impact on water quality, while others did not. The most significant positive impact on water quality resulted from adding a requirement that farmers prepare a “nutrient management plan.” That effectively means a plan for the rate, timing, and method of nutrient application to farm fields. If farmers fine-tune those variables, they can dramatically reduce pollutant runoff to surface waters, Skidmore said, because a lot of the problem comes from nutrient overapplication above what the crop needs. That leaves the excess nutrients vulnerable to precipitation-induced runoff.

Developing a nutrient management plan can be a “light bulb moment” for some farmers, Skidmore found. It can significantly adjust their behavior in the near term and even save them money by decreasing the amounts of fertilizer applied to the fields. And because the state has offered some funding to incentivize the development of the plans, the process can be a win-win for farmers and the environment

Following Skidmore’s presentation, a panel of Wisconsin experts offered their own perspectives on the interface between agriculture and water quality.

Brian Weigel, the Deputy Administrator for the Division of External Services at the Wisconsin Department of Natural Resources, noted that state governments have sometimes been caught in the middle of struggles between farmers, affected citizens, and environmentalists. “There are myriad opportunities for change,” he said, but that won’t happen until the various factions move forward together. DNR is trying to do its part, he said, by developing an office of agriculture and water quality with two goals: trying to communicate effectively with stakeholders, and connecting with governmental partners in neighboring agricultural states to explore best practices for science and policy. But government won’t have sufficient resources to do it alone, he predicted; society and culture need to change, with consumers demanding more sustainably-produced food, to really drive reforms.

“Farmers are the original environmentalists,” because they see firsthand the impacts of pollution on nearby drinking water sources, said Jason Mugnaini, Executive Director of Government Relations at the Wisconsin Farm Bureau. Mugnaini predicted that the farm community in the state will soon enter a time of transition, with farmers open to new conservation practices in part because of government-funded incentive programs. He conceded, though, that some farmers are afraid to seek compliance assistance because of concerns over enforcement actions that might result.

Sara Walling, the Water and Agriculture Program Director at Clean Wisconsin, an environmental advocacy group that has often squared off in litigation with agricultural interests over water quality concerns, emphasized the need for a collaborative approach that includes both famers and affected citizens. “We recognize that there are a lot of farmers out there who are very interested in doing what they can to change the impacts they are having on water quality,” she said. Part of Clean Wisconsin’s role is helping to bridge some of the gaps in understanding the impacts of agriculture on water quality, Walling stated.

Cheryl Heilman, the DNR’s Chief Legal Counsel, reiterated that the agency’s focus is on protecting water quality. Existing laws aren’t enough to solve the problem, and even regulation at the county level has sometimes created a “patchwork” of requirements, with some very effective and others not. Like the other panelists, she emphasized the need for more mutual support among the factions. What can best drive such cooperation? “I think we should have more forums like this,” she said.

 Vide of the full program is available here.

Continue ReadingResolving the Tension Between Agriculture and Water Quality in Wisconsin
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