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Supreme Court Sides with DNR
Wisconsin’s Supreme Court is giving the state’s bureaucracy more power to act, this time in a pollution case.
The liberal majority court ruled 5-2 that the Wisconsin Department on Natural Resources didn’t need to set formal PFAS rules before ordering an Oconomowoc dry cleaner to clean-up contamination from the so-called forever chemicals.
The DNR argued that it made the rules clear on its website, and through letters to the dry cleaner. But Wisconsin Manufacturers & Commerce said that’s not the same as following the state’s law to create official policy.
“The DNR contends that all of these communications fail to satisfy [state law's] criteria for a 'rule.' Specifically, they lack 'the effect of law,'" Justice Janet Protasiewicz wrote for the majority. "We agree. Therefore, we hold that the DNR was not required to promulgate these communications as rules."
Swing Justice Brian Hagedorn agreed with Protasiewicz and the court’s three other liberals.
Conservative Justice Rebecca Bradley said the decision sides with the bureaucracy over the people of the state of Wisconsin.
"This case is about whether the People are entitled to know what the law requires of them before the government can subject them to the regulatory wringer," Bradley wrote in her dissent. "The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them."
Wisconsin did not have any standards for PFAS chemicals until 2022. Before that, there was nothing officially that the state could do about PFAS contamination. Now, and after the ruling, the state will have much more latitude to force property owners to pay to clean-up PFAS chemicals.
Environmentalists like the Midwest Environmental Advocates said that's the victory in Tuesday's ruling.
"We are pleased that the court rejected WMC’s reckless attempt to undermine a bedrock environmental and public health protection that has kept Wisconsinites safe from toxic contamination for almost fifty years,” the group’s Rob Lee said in a statement.
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