2021 in Review: Clean Wisconsin wins pair of landmark state Supreme Court cases

, By Evan Feinauer

Victories were years in the making, but more work lies ahead

On July 8th, after nearly a decade of litigation, the Wisconsin Supreme Court issued two massive rulings for Wisconsin’s waters. The Court ruled in two separate cases, each named Clean Wisconsin v. Department of Natural Resources (DNR), that the DNR must exercise its authority to protect Wisconsin’s water resources. This is a huge victory for the environment. It is also a major defeat for a decade-long attempt by powerful corporate interests and their allies in the Legislature to advance a radical interpretation of state law aimed at preventing state agencies from protecting public health and the environment. Clean Wisconsin not only safeguarded Wisconsin’s waters, it also prevented future erosion of environmental standards. 

Kinnard Farms case: Protecting drinking water from manure pollution

This case began in 2012, when DNR issued a water pollutant discharge permit to Kinnard Farms, an 8000-animal dairy operation in Kewaunee County. When large farms like Kinnard spread manure, nitrates and pathogens often run off fields and can end up in drinking water wells, causing risk of serious health impacts. The federal Clean Water Act requires these farms to get permits to spread the vast quantities manure they produce, and state law requires DNR to place conditions in those permits to ensure farms meet water quality standards. Clean Wisconsin argued DNR should have required offsite groundwater monitoring and imposed an animal unit limit as conditions of the permit to protect nearby drinking water resources.

Following a contested case hearing at which residents and experts provided extensive evidence of the widespread groundwater contamination in the area, an administrative law judge (ALJ) ordered DNR to add the conditions to Kinnard Farms’ permit, describing the situation as a “crisis” and DNR’s failure to issue stronger permits a “massive regulatory failure.” DNR said it would add the conditions, but then changed its position without meaningful explanation and refused to follow the ALJ’s orders. DNR said it now agreed with the farm, claiming it did not have the authority to require large animal operations to conduct offsite groundwater monitoring or limit the number of animals. This new position was based on a strained interpretation of a state law known as Act 21, which describes DNR’s permitting authority.

It was at this point that Clean Wisconsin and our co-litigant Midwest Environmental Advocates (MEA) took DNR to circuit court, seeking to enforce the ALJ’s ruling and require DNR to place the two conditions in the permit. The circuit court judge ruled in our favor, agreeing with the ALJ that the conditions were necessary and chastising DNR for abandoning its initial position without justification. The circuit court also rejected the argument that Act 21 barred inclusion of the two conditions. The case was then appealed to the Court of Appeals, which certified the case for direct appeal to the Wisconsin Supreme Court.

While these appeals were playing out, and following the 2018 elections, DNR returned to its initial, position, again agreeing with Clean Wisconsin that it possesses the authority to include the two conditions. Around the same time, the Legislature sought to intervene in the case, relying on a new law passed during the lame duck session at the end of Governor Walker’s final term that sought to impair incoming Attorney General Josh Kaul’s ability to represent state agencies in court, as every attorney general before him had done without controversy. While Clean Wisconsin argued that the Legislature’s motion to intervene violated the state constitution, the Court nonetheless granted the motion, but without explaining why intervention was lawful or appropriate. The Legislature then hired private attorneys using taxpayer money to argue against Clean Wisconsin and DNR, and in favor of corporate interests who saw an opportunity to roll back Wisconsin’s environmental standards.

Central Sands high-capacity wells case: Protecting Wisconsin’s lakes and streams

This second case concerns eight high capacity well permits DNR issued in 2016 to farms in the Central Sands region for large-scale irrigated agriculture operations. Consuming groundwater for irrigation can reduce lake levels and stream flows, harming aquatic and plant life and impairing recreational use of these waters. Excessive groundwater withdrawals can even cause streams to dry up altogether and lakes to recede so much that docks no longer provide boating access and instead hover over dry land. High-capacity wells pose a serious concern for boaters, anglers, and anyone who uses and enjoys Wisconsin’s surface waters. Indeed, scientists and residents have known that these harmful impacts have been happening for decades in the Central Sands as the number of wells in the area has proliferated.

In October 2016, Clean Wisconsin and co-litigant Pleasant Lake Management District challenged DNR’s decision to approve eight permits for new wells in the Central Sands, pointing to DNR’s own statements that the wells would harm nearby lakes and streams by consuming groundwater that would otherwise feed those waters. DNR’s approval of those wells violated a provision of the state constitution known as the Public Trust Doctrine. As the Court reaffirmed in the 2011 Lake Beulah case, the Wisconsin Constitution requires DNR to act as trustee of navigable surface waters, protecting and enhancing them for the use and enjoyment of all Wisconsin residents. The Court was crystal clear that this includes protecting surface waters from harm caused by overconsumption of groundwater. The Public Trust Doctrine is a critical component of Wisconsin’s environmental heritage, and the Court’s decision was merely a straightforward application of longstanding legal principles. Following Lake Beulah, DNR began reviewing applications for new wells to determine whether they would cause impacts to surface waters and, if so, deciding whether those wells could be approved, conditionally approved, or instead must be denied.

The Public Trust Doctrine came under siege in 2016, however, when then-Attorney General Brad Schimel published a poorly reasoned and inaccurate advisory opinion stating that DNR did not have the authority to act to protect Wisconsin’s waters. This advisory opinion was again based on a strained interpretation of Act 21, the same state law that was invoked by our opponents in the Kinnard Farms case. DNR followed the Schimel opinion and began issuing permits for new wells, without conditions, despite knowing those wells would harm surface waters that must be protected under the Public Trust Doctrine. When these wells were approved in 2016, Clean Wisconsin sued. DNR at first defended its decision to approve these harmful wells but following the election of Governor Evers and Attorney General Kaul, the Department recanted and agreed that it should never have approved the challenged applications. Attorney General Kaul rescinded the erroneous Schimel opinion. After DNR came back around to its original, correct position, the Legislature sought to intervene in the case to oppose DNR’s authority to protect public trust waters, relying on the same lame duck law described above. Over Clean Wisconsin’s objections, the Supreme Court allowed them to intervene in this case as well.

A Ruling on Act 21

While the cases concern different water issues, what they have in common, and the reason the Court wanted to decide them together, is the 2011 law known as Act 21. In both cases, our opponents argued Act 21 prohibited DNR from acting to protect Wisconsin’s waters. However, Act 21 simply says that for DNR to include conditions in a permit, there must be “explicit” authority in a statute or administrative rule. Clean Wisconsin argued that in each case DNR did have this explicit authority and Act 21 was no obstacle to DNR taking steps to protect the environment through reasonable permit terms. Our opponents read Act 21 differently, arguing that it requires DNR to point to a statute that states verbatim the condition DNR wants to place in a permit.

The Court in both cases rejected our opponents’ view of Act 21, agreeing that DNR has explicit authority to both impose the monitoring and animal unit limit conditions in Kinnard’s permit to protect water quality and to deny or condition high capacity well permits to protect surface waters. The Court further reaffirmed that the 2011 Lake Beulah case remains good law and that DNR cannot allow high-capacity wells to harm surface waters without violating the state constitution.

These holdings alone merit celebration, but the Court’s reasoning is worth emphasizing as well. The Court agreed with Clean Wisconsin’s argument that when a statute clearly and unambiguously confers authority on an agency it has “explicit” authority within the meaning of Act 21, even if the law conferring the authority gives DNR some discretion in how to implement that authority in specific cases. This point is critical because many, if not most, environmental laws are structured in this way. Given this, if the interpretation urged by corporate interest groups requiring the verbatim statement of permit conditions in statute had prevailed, then innumerable environmental standards would have been rendered unenforceable. By rejecting that argument, the Court not only protected Wisconsin’s waters from runoff pollution and overdraft of groundwater, but also declined to accept a radical reinterpretation of state law that would have touched Wisconsin’s residents in countless ways in their daily lives. The threat is of course not gone, as we have already seen bills introduced this legislative session that would attempt to undo our Court victories, but for today basic environmental permitting standards and the rule of law remain intact.

Victories Years in the Making

Victories this big do not come easy. It took years of work from several Clean Wisconsin lawyers to litigate these cases, supported by scientists, fundraisers, communication experts, and countless other staff and supporters who made this work possible. In addition, Clean Wisconsin benefitted from crucial partnerships with MEA and their talented lawyers in the Kinnard Farms case and Pleasant Lake Management District in the high-capacity wells case. Several groups also wrote “friend of the court” or amicus briefs to the Supreme Court, urging the justices to side with Clean Wisconsin. These briefs highlighted the disastrous effects a bad ruling could have on the environment, public health, and the economy. Those groups and the lawyers who helped write their amicus briefs should be commended for putting in the work to make sure the voice of all Wisconsinites, and not just well-financed business lobby groups, was fully heard.  

As noted above, the struggle to protect the environment is not over, and tough legal challenges surely lie ahead. We will rely again on our staff, allies, and engaged citizens to protect and preserve Wisconsin’s natural heritage for future generations.