Climate litigation comes to Wisconsin

Wisconsin’s climate is warming. Despite its characterization in some quarters as a “climate haven” and destination for people migrating away from the worst impacts of climate change, the state is not immune to some of those same consequences. Even setting aside the significantly warming temperature here, the effects already include more frequent, intense precipitation events, increased flood risk, and decreased opportunities for winter recreation. Wisconsinites living in the southeastern part of the state will long remember the August 9-10, 2025 rainfall event that hammered some areas with over 14 inches of rain in under 24 hours, leading to widespread flooding. No doubt that was a “1,000-year storm” by reference to past experience. But when it comes to climate, the past is no longer a good guide to the future; indeed, some parts of the state have recently experienced multiple “500-year storms” or “500-year floods” within only a few years of time.

Perhaps it is no coincidence, then, that as the state increasingly feels the effects of climate change, climate law cases are similarly piling up here. From constitutional claims that seek to reform the implementation of energy law in the state, to litigation over the federal government’s efforts to claw back funding for the development of renewable energy resources, Wisconsin has become increasingly involved with legal battles over the climate. Interestingly, one of the cases prominently invokes a constitutional doctrine connected to the state’s water resources.

Dunn v. Public Service Commission. In August 2025, fifteen Wisconsin youth filed suit in the Circuit Court for Dane County alleging that certain Wisconsin statutes “create and perpetuate a fossil fuel-dominated electricity sector,” resulting in climate change-driven injuries to plaintiffs caused by air pollution, extreme weather events, and degradation of Wisconsin’s public trust (water) resources. Plaintiffs assert this amounts to a violation of the Wisconsin Constitution’s guarantees of life, liberty, and “a stable climate system.” That last phrase doesn’t appear in the constitution, but plaintiffs argue that it is inherent in the enumerated rights of life, liberty, and the pursuit of happiness. The case is a cousin of similar youth-led suits filed across the country, including a recent notable success in the Supreme Court of Montana.

The claims involve the work of the Wisconsin Public Service Commission (PSC), which is charged with approving the construction of new facilities that will generate electricity in the state. The Dunn plaintiffs allege that one Wisconsin statute unlawfully prohibits the PSC from considering the air pollution these proposed facilities will emit, leading to an artificial bias in favor of electricity generation from fossil fuels rather than renewable resources. A second set of challenged laws, plaintiffs allege, creates an artificial and unlawful ceiling on the amount of renewable energy generation the PSC may require energy providers to supply.

Alternatively – and particularly thought-provoking for those interested in Wisconsin water law – the plaintiffs allege that the same statutes also violate the Wisconsin public trust doctrine by depriving the plaintiffs of “the [constitutionally guaranteed] right to access, enjoy, and use public trust waters.” Over the years I have written several times in this space about the Wisconsin public trust doctrine, including its recent re-solidification after a period of erosion. In short, Wisconsin courts have interpreted Article IX, Section 1 of the state’s constitution to mean that Wisconsin holds its navigable waters in trust for its people, but the courts have had some difficulty operationalizing exactly what that duty requires in terms of day-to-day management of Wisconsin waters. The plaintiffs in Dunn argue that climate-driven damage to Wisconsin water resources enabled by the PSC’s (statutorily mandated) decisions related to electricity generation equates to a breach of the state’s constitutional public trust obligations. If a Wisconsin court accepts that framing, Dunn could become a nationally significant point of climate law evolution.

While Dunn targets the legal architecture of the state’s energy system, another pending case is focused on funding for the development of renewable energy generation in Wisconsin.

Maryland Clean Energy Center, et al. v. United States. Wisconsin (through the Wisconsin Economic Development Corporation, a public-private entity created in 2011 to replace the former Department of Commerce) has joined other states and organizations suing over EPA’s decision to terminate the “Solar for All” program, which is aimed at improving access to solar energy infrastructure in lower-income and disadvantaged communities. The program was slated to fund about $7 billion in solar projects; Wisconsin would have received over $60 million of that amount. The controversy involves the recent reconciliation law passed in July, which Wisconsin and the other plaintiffs argue only rescinds unobligated balances of the funding, and is not a retroactive repeal of funding already issued under the program. In a related case, EPA has called such claims “hopeless,” arguing that Congress provided reasonable grounds for getting rid of the entire program and its associated funding.

Enbridge Line 5. The Wisconsin-based dispute over the rerouting of Enbridge Line 5, an oil and gas pipeline that crosses northern Wisconsin on its way from Canada to Michigan, is another fossil fuel-related case with national relevance. Litigation over the pipeline, and the fossil fuel resources it transports, is ongoing in several different jurisdictions. In our state, the Bad River Band of Lake Superior Chippewa has challenged the Wisconsin Department of Natural Resources’ issuance of permits approving a 41-mile new section of the pipeline, arguing that the DNR’s approval fails to comply with Wisconsin’s environmental laws and will damage wetlands and water resources, thereby threatening the Band’s way of life. The case is currently pending before a Wisconsin administrative law judge.

Though Wisconsin isn’t the first state that comes to mind in a conversation about climate risk, the outcome of these cases will be very significant to the development of climate law both within and outside the state.

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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.

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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
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