When a legislative body delegates authority to an administrative agency, it cannot envision every future scenario, and often uses language that is regrettably—but necessarily—imprecise. Take, for example, the power given the Wisconsin Department of Natural Resources to exercise “general supervision and control over the waters of the state.”[1] Or consider the United States Environmental Protection Agency’s authority to select the “best system of emission reduction” for certain entities emitting air pollution. (The United States Supreme Court analyzed the scope of the latter provision earlier this summer in West Virginia v. EPA). Operationalizing such vaguely worded authority has proven difficult for agencies. Disputes about the true extent of the delegation arise when the agency takes action near the limit of the delegation.

In the legal skirmishes that result, courts sometimes find the agency has gone too far. The most recent, high-profile example of this is the West Virginia case, in which the Court endorsed the “major questions” doctrine. The Court examined EPA’s authority to enact a plan to cut emissions of carbon dioxide from power plants. To some extent, the plan required a “generation shifting” approach mandating a transition from fossil fuels to renewable energy sources such as solar and wind. The Court took a skeptical view of the plan. It held that in certain “extraordinary cases” raising a “major question” of “economic and political significance,” there is good reason to restrain the scope of an administrative agency’s power, especially if Congress had not clearly delegated authority for the agency to take the questioned action. The Court further explained that the doctrine flows from traditional separation of powers principles inherent in the federal constitution. The holding seems likely to restrict the reach of just about any federal agency’s authority.

In light of West Virginia, will state courts adopt state-level equivalents of the “major questions” doctrine, based on the parallel separation of powers principles in state constitutions? In Wisconsin, the answer is not as clear as you might think, particularly in light of two recent Wisconsin Supreme Court opinions rejecting constraints on agency power, even when based on murky conferrals of legislative authority.

The conventional wisdom seems to be that the Wisconsin court will follow suit and adopt some form of the major questions doctrine, given that both courts are perceived to be skeptical of rising agency power. In a 2018 case, for example, the Wisconsin court ended its practice of deferring to agencies’ legal interpretations.

Indeed, the United States Constitution and the Wisconsin Constitution contain some provisions that are similar. But Wisconsin courts have not always interpreted the state provisions in lockstep with the United States Supreme Court’s interpretation of the parallel federal provisions. Instead, the Wisconsin Supreme Court has called the federal decisions “eminent and highly persuasive, but not controlling.”[2] One justice wrote that consistency between the two constitutions “is neither mandatory nor assured.”[3]

But to adopt the major questions doctrine, the Wisconsin court would have to get around its 2021 opinions in two cases both captioned Clean Wisconsin v. WDNR.  In the Clean Wisconsin cases, the court considered what might be termed a statutory embodiment of the major questions doctrine. Wisconsin Stat. § 227.10(2m) provides that no agency may implement any “standard,” “requirement,” or permit condition unless it is “explicitly required or explicitly permitted” by statute or by rule. I have previously written that the statute is part of what seems to be a broader movement toward restricting the authority of Wisconsin administrative agencies.

So it was somewhat surprising that the Wisconsin Supreme Court rejected a challenge, based on the statute, to WDNR’s authority to impose certain conditions in environmental permits it had issued. The case turned on a question of statutory interpretation: whether “explicit” means “specific,” in other words, whether under § 227.10(2m) the authority to impose the two disputed conditions 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 though no statute or rule spelled out verbatim the authority to impose the conditions, the legislature had explicitly conferred broad authority on WDNR through Wis. Stat. § 283.31(3)-(5), provisions that charge WDNR with administering the wastewater permitting program and give it the authority to “prescribe conditions for permits” that assure compliance with the law. The court reasoned that 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). WDNR therefore had the power to impose the two challenged permit conditions.

Put simply, that language does not seem consistent with the thinking behind the “major questions” doctrine. Perhaps the Wisconsin court will adopt the doctrine anyway, limiting the Clean Wisconsin cases to the facts involved. But one has to wonder whether the result in Clean Wisconsin would have been the same, if West Virginia had been decided first. In the coming years, many state supreme courts will likely face similar questions surrounding the extent of state agency power.

[1] Wis. Stat. 281.12(1).

[2] State v. Knapp, 2005 WI 127, ¶ 57 (citing McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 139, 121 N.W.2d 545 (1963)).

[3] Id., ¶ 131 (Crooks, J. concurring).