{"id":26999,"date":"2017-09-11T09:24:55","date_gmt":"2017-09-11T14:24:55","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=26999"},"modified":"2017-09-11T09:24:55","modified_gmt":"2017-09-11T14:24:55","slug":"the-quiet-revolution-in-wisconsin-administrative-law","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2017\/09\/the-quiet-revolution-in-wisconsin-administrative-law\/","title":{"rendered":"The quiet revolution in Wisconsin administrative law"},"content":{"rendered":"

The late Justice Antonin Scalia, a former administrative law professor, once began an address on Chevron <\/em>deference by warning his audience to \u201clean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.\u201d[1]<\/a> Perhaps that warning should preface this blog post, which also concerns administrative law. Of course Scalia\u2019s comments that day turned out to be anything but \u201cdull.\u201d Broadly speaking, neither is the subject matter \"A<\/a>he covered: as the discipline concerned with governmental decision-making, administrative law issues confront nearly every legal practice in areas as diverse as taxation, environmental permitting and litigation, labor relations, and countless others.<\/p>\n

In Wisconsin, the past five years have seen an unprecedented makeover in longstanding principles of state-level administrative law. These changes shift power away from agencies and toward courts, the legislature, and the governor. In this post, I divide the changes into three categories: 1) reductions in agency authority; 2) additions to the rulemaking process that, among other things, allow the Legislature to indefinitely block new rules; and, perhaps most importantly, 3) fundamental revisions to the doctrine of judicial deference to agency interpretations of law. Taken together, these developments deeply change the balance of power between agencies and the three branches of Wisconsin government.<\/p>\n

<\/p>\n

Reducing agency authority<\/em>. The Legislature has acted to curb agency reliance on common law doctrines, especially in the field of environmental law. For example, I have previously written here about the eroding public trust doctrine<\/a>, which dates back to Roman law and generally requires the state to act as \u201ctrustee\u201d of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries\u2014its people. In Wisconsin, \u201cthe legislature has delegated to the DNR broad authority to regulate under the public trust doctrine.\u201d[2]<\/a> But at a single stroke, the Legislature seriously undermined that authority by enacting Wis. Stat. \u00a7 227.10(2m)<\/a>. The statute provides that no agency may implement any \u201cstandard,\u201d \u201crequirement,\u201d or permit condition unless the condition has been \u201cexplicitly required or explicitly permitted\u201d by statute or by rule. The statute dates to 2011, but its consequences have come to a head much more recently. In a 2016 opinion<\/a>, Attorney General Brad Schimel concluded that \u201c[t]hrough these changes to the law, [DNR\u2019s] public trust duty . . . reverts back to the Legislature, which is responsible for making rules and statutes necessary to protect the waters of the state.\u201d[3]<\/a> Thus, DNR\u2019s power to exercise this ancient common law doctrine is now tightly circumscribed by its statutory powers.<\/p>\n

Overhauling the rulemaking process<\/em>. Five times, the United States House of Representatives has passed \u201cREINS\u201d (Regulations from the Executive In Need of Scrutiny) legislation, but it has never become law. Its supporters<\/a> and opponents<\/a> agree that it is fundamentally aligned with President Trump\u2019s stated goal to \u201cdeconstruct the administrative state.\u201d While the federal REINS Act couldn\u2019t clear the Senate, earlier this year Wisconsin became the first in the nation to enact state-level REINS legislation. 2017 Wisconsin Act 57<\/a> makes agency rulemaking more difficult and complex by, among other things<\/a>:<\/p>\n