State Supreme Courts and the “Major Questions” Doctrine

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.

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Interdisciplinary Research in Stormwater Management

When it rains or snows, the resulting runoff can collect pollutants including salts, fertilizers, chemicals, oils, and sediment, among other things. These contaminants have the potential to impair surface water and groundwater that receive the runoff. Communities in the United States face growing Stormwater flowing to a gratechallenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors.  These changes have increasingly stressed existing “static” stormwater management systems, such as pipe networks and ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors requires innovative and resilient solutions such as real time control (RTC) or “dynamic” stormwater management systems.  RTC systems are typically automated or semi-automated and involve the use of sophisticated dynamic models to operate stormwater controls in real time, such as modifying setpoints to open and close valves, or routing storm water differently under particular system conditions.  The goal of an RTC system is to continuously regulate the flow in the various branches of a network based on real-time information related to system capacity and weather conditions, thus reducing the magnitude of outflows during storms and relieving other stresses on the system.

During a recent grant-funded project, an interdisciplinary team of Marquette law faculty, engineering faculty, and students from both disciplines studied dozens of examples involving RTC implementation in the United States and abroad.  We also examined the literature detailing institutional barriers to RTC innovation.  And we reviewed numerous legal decisions related to municipal liability for stormwater management (or mismanagement). Finally, we suggested a variety of strategies to combat these institutional and legal barriers to smooth the transition to RTC systems.

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The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward The Wisconsin Capitol in Madison, Wis.courts, the legislature, and the governor.” Last week the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative constraints on agency authority. As a result, the pendulum has swung back toward increased agency discretion and clout. The opinions are also important because they continue a recent revival of the Wisconsin public trust doctrine, reversing a slide that I identified in a 2016 blog post.

The court granted review in the two cases  (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72)) to address one of the issues I focused on in the 2017 post: 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 resulting opinions, joined by an unusual mix of justices in a four-vote majority, limit the statute’s influence and slow down the “quiet revolution.”

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