The Wisconsin Supreme Court has agreed to state regulators’ request to review a landmark ruling that struck down Wisconsin’s “hazardous substance” listing for PFAS and other emerging contaminants, upending long-held legal interpretations and effectively blocking regulators from requiring cleanups of PFAS without first completing a rulemaking.
The state’s high court Sept. 11 issued an order granting the Wisconsin Department of Natural Resources’ (DNR) petition for review of Wisconsin Manufacturers and Commerce, Inc. (WMC), et al. v. Wisconsin DNR, et al. -- a ruling that environmental and public interest groups say if left to stand would “functionally repeal” the state’s longstanding Spills Law.
DNR and environmentalists have said the lower court ruling, if not reversed, would have wide-reaching, adverse impacts including over its ability to apply the Spills Law to per- and polyfluoroalkyl substances (PFAS) releases.
DNR’s opening brief is now due Oct. 11, and WMC’s brief is due 20 days after that, according to the order.
Environmentalists who will seek to be amicus parties in the case on the side of the state are applauding the court’s decision to accept the case. “We are pleased that the Supreme Court has agreed to hear this case, and we are confident the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated by the state’s highest court,” Midwest Environmental Associates (MEA) Staff Attorney Rob Lee said in a Sept. 11 statement. Lee tells Inside PFAS Policy that the high court takes few cases annually.
Asked to comment on the high court’s decision to accept the case, a spokesperson for DNR referred queries to the Wisconsin Department of Justice. A spokesperson for that department did not respond by press time to a query.
Lee says MEA plans to file a motion for leave to file an amicus brief in the case in the coming weeks. MEA filed an amicus brief on behalf of four environmental groups last April, urging the court to accept the case. The four groups are Citizens for a Clean Wausau, Clean Water Action Council of NE Wisconsin, River Alliance of Wisconsin and Wisconsin Environmental Health Network.
At issue is a March 6 2-1 ruling by the Wisconsin Court of Appeals that invalidates DNR’s policies on PFAS as hazardous substances under the state’s 46-year-old Spills Law, and voids enforcing thresholds or requirements for the substances as well as DNR’s related liability waiver policy known as Certificates of Compliance (COCs). Despite the state’s claims that the policies are not rulemakings, the appeals court agreed with a lower court that all three policies are in fact rulemakings that did not follow procedural requirements for new regulations.
“In summary, the three policies . . . -- emerging contaminants as hazardous substances, emerging contaminants at certain concentrations, and COC approval under the [Voluntary Party Liability Exemption (VPLE)] program -- fall within the definition of a rule as set forth in” Citizens for Sensible Zoning, Inc. v. DNR, the majority wrote, referring to a state high court decision.
The order has been stayed, however, pending DNR’s pursuit of an appeal.
A dissenting opinion though called the majority’s stance a reversal of longstanding interpretations of the Spills Law, which dissenting Judge Lisa Neubauer said establishes obligations for responsible parties that discharge hazardous substances into the environment.
While the ruling sided with industry, the Wisconsin Supreme Court could view the issues differently given the high court’s majority flipped from conservative to liberal for the first time in 15 years following a 2023 election.
Threatened Mischief
DNR in petitioning the court for review said, “Rarely does a single court of appeals decision threaten as much mischief across state government as this one.” It argued that not only does the ruling threaten to “nullify” the Spills Law, which is key to protecting public health and the environment from hazardous substance discharges, but it “also threatens to bring to a screeching halt wide swaths of everyday executive action by forcing it to first pass through the administrative rulemaking process.”
Godfrey & Kahn attorneys Ned Witte and Bill Nelson tell Inside PFAS Policy that while affirming the ruling to require administrative rulemakings before regulating PFAS under DNR’s remedial action law “appears innocuous and straightforward, during the prior administration of [Republican] Governor Scott Walker, the Wisconsin Legislature implemented significant changes to the requirements of administrative rulemaking . . . including prohibiting the DNR from establishing rules that cost more than $10 million in two years to implement.” They note that PFAS regulation of groundwater would exceed that amount, throwing the issue “into the hands of the politically polarized senate and assembly.”
The lawyers also contend that the issue for PFAS “appears to ring of mootness” now that EPA has issued a final rule regulating two PFAS as hazardous substances under the Superfund law. They also note that the ruling at issue goes beyond the state’s PFAS regulations and to DNR’s “foundational hazardous substance remediation program” -- which many Wisconsin businesses and brownfields developers and others have generally accepted, when equitably applied, “as a reasonable and necessary tradeoff for getting projects to closure and stimulating economic development.”
Among the arguments the state made in the petition are that the ruling wrongly bars DNR from applying the Spills Law to PFAS releases unless it first develops administrative rules that specify exactly which substances fall under the law and at what concentrations.
Further, it argued the ruling significantly limits the state’s discretion on liability exemptions covering Spills Law discharges.
In its petition, the state asked the Wisconsin Supreme Court to settle three issues: whether responsible parties can avoid investigating and cleaning up hazardous substance discharges such as PFAS unless and until DNR issues rules designating them as “hazardous” and the concentrations at which they qualify as such; whether the state’s VPLE program grants DNR discretion to offer different types of liability waivers to parties who have cleaned up their property; and whether the administrative rules section of Wisconsin law independently prohibits DNR from administering the Spills Law until it issues hazardous substance listing rules.
DNR argued in the petition that the appeals court disregarded the plain text of the Spills Law, noting the law’s broad definition of a hazardous substance. It says the legislature “expressly chose an open-ended definition, and so a rule cannot ‘close’ the definition by purporting to exhaustively list all covered substances and concentrations.”
Among other arguments, the department says, “the Spills Law lacks an express rulemaking requirement of the kind the court of appeals added.”
The ruling also conflicts with past state high court controlling opinions, it contended. The decision also has significant statewide impacts, DNR said, noting that as of August 2021, the state was overseeing PFAS cleanups at 68 sites.
The state also argued that Wisconsin Supreme Court review “is necessary because the decision . . . contorted the meaning of a ‘rule’ in a way that threatens broad swaths of executive agency activity, even outside the Spills Law context.” -- Suzanne Yohannan (syohannan@iwpnews.com)
