Wisconsin Supreme Court justices weigh sweeping environmental cases

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Wisconsin Supreme Court

MADISON, Wis. - The Wisconsin Supreme Court heard a pair of far-reaching environmental lawsuits on Monday that could define the limits of factory farming and high-capacity well regulations and determine how far state agencies can go when interpreting state law.

The justices heard oral arguments in both cases, concluding they hinge on whether a law Republicans passed in 2011 limiting agencies' powers trumps the Department of Natural Resources' broad authority to protect Wisconsin's waters.

It was unclear when the court might rule. A decision that the law limits agency discretion could force departments across state government to spend years writing new rules to give themselves the authority to impose regulations on a case-by-case basis. That could set up innumerable clashes with Republican legislators, who have the final say on agency rules and already believe the executive branch oversteps its authority.

Conservation group Clean Wisconsin filed a lawsuit in 2015 demanding the DNR enforce standards that an administrative law judge imposed on an expansion permit for Kinnard Farms in Kewaunee County. The judge imposed permit conditions that called for the farm to monitor its impact on off-site groundwater and limit the number of animals to reduce manure.

The DNR declined to enforce the standards after then-Republican Attorney General Brad Schimel advised the agency that it lacked the authority under the 2011 law, known as Act 21, that prohibits agencies from implementing or enforcing standards that aren't explicitly laid out in statute.

Clean Wisconsin attorney Andrea Gelatt argued that other sections of state law clearly give the DNR the broad power to control pollution discharge and impose permit conditions to ensure compliance.

The farm's attorney, Jordan Hemaidan, countered that state law doesn't explicitly say the DNR can enforce groundwater monitoring and animal limits as required by Act 21.

"That alone should end the inquiry," he said.

Eric McLeod, an attorney representing Republican legislators, echoed his argument.

"What Act 21 does is to say when you exercise certain authority, like in a permit, you must find the source for that authority in a statute or rule. It's undisputed that those requirements (monitoring and an animal limit for Kinnard) aren't included in any statute or rule," McLeod said.

Justice Rebecca Dallet, a member of the court's liberal-leaning minority, warned that under that interpretation, the DNR would have to write a new rule for every possible permit condition.

Justice Rebecca Bradley, part of the conservative majority, mused that the DNR could write a rule covering a broad swath of potential conditions, which would give farmers an idea of what they could face.

"That would give the DNR the flexibility it needs without coming as a surprise to those regulated," she said.

Clean Wisconsin filed another lawsuit in 2016 challenging the DNR's stance that it can't consider the cumulative effects of high-capacity wells on area groundwater when considering well permits. The DNR also based that position on Schimel's Act 21 opinion. But a Dane County judge in 2017 sided with Clean Wisconsin and invalidated permits for seven high-capacity wells in central Wisconsin.

McLeod argued before the high court that nothing in state law explicitly allows the DNR to review high-capacity wells' cumulative effects. Bradley appeared to agree with him, at one point saying Act 21 represents the Legislature's attempt to reclaim its authority over state agencies.

Carl Sinderbrand, an attorney for the Pleasant Lake Management District, argued that the DNR has a duty under the Wisconsin Constitution to protect Wisconsin's waters and the agency can't do that unless it considers wells' cumulative effects.

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DNR attorney Gabe Johnson-Karp pointed to a section of state law that gives the agency broad authority to do what's necessary to protect state waters, saying that amounts to explicit authorization.

Bradley didn't seem to buy that argument.

"You're asking us not to give any effect to Act 21," she said.

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