Remembering Justice David T. Prosser, Jr.

David T. Prosser, Jr., a prominent figure in Wisconsin for the last forty-five years, held many significant positions during his distinguished career of public service: Wisconsin Supreme Court Justice, Speaker of the Wisconsin Assembly, Commissioner of the Wisconsin Tax Appeals Commission, and Outagamie County District Attorney, among others. But after he passed away this month at the age of 81, those who gathered to celebrate his life remembered him not only as a hard worker and skilled jurist but also—and perhaps more importantly—as a trusted mentor, loyal friend, and devoted family member.

In my personal experience, Justice Prosser certainly deserved those accolades. I served as his law clerk during the Wisconsin Supreme Court’s 2004-2005 term. That year we worked elbow to elbow, and I observed firsthand his skill as a writer, his work ethic, and his wry wit. Upon arriving at the state capitol in early August 2004, fresh out of Marquette Law School, I was as nervous as could be. Justice Prosser immediately put me at ease, and although I made many mistakes, he never lost patience with me. That year on the Court was perhaps the greatest experience of my professional career and I often reflect on those times. I certainly would not be where I am today without him.

As with many of those whose lives he touched, Justice Prosser always had my best interests in mind. He kept in touch with me and followed my career even long after I worked for him. A few years after my clerkship had ended, I needed a letter of recommendation in a short time frame during a busy period at the court. He agreed to write on my behalf. After apologizing for the quick turnaround, I asked when he might be able to get it in the mail—to which he answered, “we’ll see.” The next evening, there was a knock at my door. There on my doorstep was Justice Prosser, with the letter in hand. He had not only written it in less than a day, but also driven two hours each way to ensure it arrived on time. I invited him in, but he declined, saying, “I’m sure you have better things to do than have dinner with me.” His humility was one of his defining features. My experience was not unique. Those gathered at his funeral told many stories of a similar nature, explaining how Justice Prosser dropped everything to help a friend or family member in need.

Justice Prosser was a great friend of Marquette Law School, often appearing at events, lectures, dinners, and the like. Many of his clerks were Marquette lawyers, and they went on to successful careers as judges and lawyers in a variety of practice settings. He was featured in the Summer 2017 edition of Marquette Lawyer magazine, highlighting how he enjoyed hiring law clerks from Marquette and how much they helped him.

The previous year, in an interview with the Wisconsin State Bar on the occasion of his retirement from the Wisconsin Supreme Court in 2016, Justice Prosser said he wanted to be remembered as an important decision-maker, an independent thinker, and a storyteller. He was certainly all those things, but also much more to those of us who had the good fortune to know him. As we continue our journeys without him, we honor the person he was and the life he led. Rest in peace, Justice Prosser. You will be missed.

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Will Wisconsin Chart Its Own Course on Environmental Issues?

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.

In a series of recent cases, the United States Supreme Court has sharply restricted the power of the United States Environmental Protection Agency to effectively exercise jurisdiction over natural resources within the states. These include West Virginia v. EPA (endorsing the “major questions doctrine” and restricting EPA’s power to require cleaner energy generation without clear congressional authorization); Sackett v. EPA (limiting the scope of EPA’s authority over “waters of the United States,” and eliminating federal authority over many wetlands); Loper Bright Enterprises v. Raimondo (overruling the Chevron doctrine of deferring to agency interpretations of law in most circumstances); SEC v. Jarkesy (holding that agencies may not employ in-house tribunals, in lieu of jury trials, when seeking civil penalties); and Corner Post v. Board of Governors, FRS (pausing the statute of limitations to challenge agency regulations until the plaintiff suffers injury).

The shift away from federal power elevates the role states can play in charting a course on environmental issues. The Sackett Court emphasized that states, not the EPA, hold the “primary responsibilities and rights . . . to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” Some evidence supports the idea that states will be eager to fill gaps in federal regulation of the environment and corresponding enforcement activities. Wisconsin, for example, has a rich history of water law. All the way back in 1853, the Wisconsin Supreme Court endorsed the principle that “if [a] stream is navigable in fact, the public have the right to use it for the purposes of navigation, and the right of the owner [of abutting land] is subject to the public easement.” Jones v. Pettibone, 2 Wis. 308 (1853). In the 20th century, the state became a national leader in conservation and was at the vanguard of the development of the public trust doctrine.

Even in the 21st century, Wisconsin authorities have sometimes stepped in to protect the state’s natural resources when federal jurisdiction receded. In 2001, for example, the Supreme Court invalidated the “migratory bird rule,” under which federal agencies had exercised jurisdiction over pollutant discharges into certain isolated intrastate waters. The decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, removed a sizeable percentage of wetlands from federal protection. The Wisconsin Legislature acted almost instantly, taking only a few months to enable state control over such discharges by creating a new category of “nonfederal wetlands.” The state law expressly addressed the Supreme Court’s decision. By its terms, it applies when discharges into wetlands are determined “not to be subject to regulation under [the federal Clean Water Act] due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers . . . or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.” Wis. Stat. 281.36(1m)(a)1 (as created by 2001 Wisconsin Act 6). The act effectively restored protection of wetlands that the Supreme Court removed from federal jurisdiction in SWANCC, albeit under state authority. Later, the state implemented an innovative water quality trading program to help curb nonpoint source pollution and meet the state’s aggressive water quality limits for phosphorous pollution. Wisconsin citizens can be proud of the state’s progress in those areas and many others.

But more recent developments are less promising. The ballyhooed “Year of Clean Drinking Water in Wisconsin” was less successful than Governor Evers probably hoped. Similarly, after Assembly Speaker Robin Vos created a “Water Quality Task Force” in 2019, all thirteen of the bills it proposed died in the state Senate. In 2017, the Legislature removed some smaller wetlands from protection under state law, backtracking from the 2001 enactment. And the past few years have been marked by political skirmishes over the power of state agencies to enact groundwater standards for PFAS and other chemicals, disputes over the Department of Natural Resources’ power to require environmental cleanups, and the delayed release of state funds earmarked for remediation activities.

Wisconsin’s uneven record on environmental protection is certainly not unique. But the state–or rather, all the states–are being thrust to the forefront in such matters. Of course, a state will not necessarily regulate anew, or step up enforcement, just because it has the opportunity to do so. And any reckoning with environmental issues will no doubt have to wait until after the November elections currently dominating politics. Whenever the dust settles, it will be interesting to see how states respond in the new era of a somewhat-diminished EPA.

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When it Comes to Pollution, How Much is Too Much?

A hand above a stream

The late Justice Crooks once wrote for a majority of the Wisconsin Supreme Court that “general standards are common in environmental statues . . . [and] the fact that [they] are broad standards does not make them non-existent ones.” That principle is about to be tested in both the United States Supreme Court and the Wisconsin Supreme Court. General standards (or, as their opponents often call them, vague standards) may be “common in environmental statutes,” but they are also becoming extremely controversial, as demonstrated in a pair of current cases.

The first is a federal matter, City and County of San Francisco v. Environmental Protection Agency, in which the United States Supreme Court granted certiorari on May 28. The case concerns regulatory agencies’ authority under the Clean Water Act (CWA) to issue “narrative” standards, or statements that describe a water quality goal when numeric standards are too difficult to quantify. The permit provision at issue prohibits a wastewater treatment facility from “causing or contributing to” a violation of water quality standards, and from discharging substances that “create pollution, contamination, or nuisance.” The appellant municipalities say those standards are too vague, because they create no specific numerical requirements that provide a yardstick as to when the water has been sufficiently treated to avoid running afoul of the CWA—no way to know “how much is too much” pollution. In other words, the argument is that the municipalities cannot design treatment technologies without more definite standards.

Last term in Sackett v. Environmental Protection Agency, the Court struck down EPA’s broad interpretation of the term “waters of the United States” in the CWA, sharply curtailing the agency’s authority to regulate discharges into wetlands. And in the meantime, the court overruled its longstanding principle of deferring to agencies’ legal interpretations of statutory terms, known as Chevron deference. Together, those decisions may not bode well for EPA’s position in the San Francisco case.

The Wisconsin Supreme Court’s endorsement of “general” standards described at the beginning of this post came in response to a challenge of the Department of Natural Resources’ general authority under the Wisconsin statutes and the public trust doctrine to “protect, maintain and improve” the waters of the state. In the case, Lake Beulah Management District v. DNR, the court held that the DNR could rely on general legislative grants of authority such as that to place conditions on permits issued for the operation of high-capacity wells. The court reached a similar conclusion a decade later in 2021, in two decisions relating to DNR’s authority to regulate Concentrated Animal Feeding Operations and high-capacity wells, both captioned Clean Wisconsin v. DNR. In the Clean Wisconsin cases, the court held that agency authority that is stated in broad terms nevertheless qualifies as actionable, “explicit” authority within the meaning of Wis. Stat. § 227.10(2m), which prohibits the agency from implementing or enforcing a permit condition not “explicitly required or explicitly permitted” by statute or by rule.

That position will be tested again should the court accept the pending petition for review in Wisconsin Manufacturers and Commerce, Inc. and Leather Rich, Inc. v. DNR. The case concerns Wisconsin’s “Spills Law,” Wis. Stat. § 292.11. 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 DNR of the spill and then to “take the actions necessary to restore the environment.” There is no list of “hazardous substances” – instead, the statute broadly defines the term to include almost any substance “which may pose a substantial present or potential hazard to human health or the environment . . . .” In practice, DNR has enjoyed substantial flexibility in determining what qualifies as a “hazardous substance.” The dispute in Leather Rich arose over DNR’s amendment of an ongoing remediation plan to include emerging contaminants such as PFAS, the “forever chemicals,” within the definition of “hazardous substances.”

The court of appeals affirmed the circuit court for Waukesha County’s order finding that the DNR “ha[s] the responsibility to determine . . . what the hazardous substances are by statute,” which “mean[s] that there has to be a rule-making function by the department . . . so that the individuals have notice as to what the law is and how the law is going to be implemented.” The court of appeals also affirmed the circuit court’s conclusion that DNR’s enforcement of the Spills Law with respect to PFAS without making a list of “hazardous substances” was “an unlawfully adopted rule and is invalid and unenforceable.”

In its Petition for Review, the Wisconsin Department of Justice argued that the decision “implies that agencies cannot enforce open-ended statutes without [promulgating] rules explaining their view of what exactly the statutes cover.” This effectively ignores the Clean Wisconsin cases, the state argued, and could end any Spills Law enforcement whatsoever.

Both cases—San Francisco at the federal level and Leather Rich at the state level—will require courts of last resort to analyze broad provisions in environmental protection statutes to delineate an agency’s implementation and enfacement authority. For both the regulated community and the environment, the stakes could hardly be higher.

Continue ReadingWhen it Comes to Pollution, How Much is Too Much?
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