Clean Wisconsin played a key role in establishing the right to sue to protect our environment. Passed in 1972, the Wisconsin Environmental Policy Act (WEPA) requires all state agencies to consider the environmental impacts of major actions. But the statute itself does not set environmental standards.
Clean Wisconsin, known at that time as Wisconsin’s Environmental Decade, brought three cases before the Wisconsin Supreme Court that helped cement our ability to hold agencies accountable for decisions and actions that harm our environment.
These cases also established that organizations like Clean Wisconsin have legal standing to sue agencies on behalf of our members.
Taken together, these three victories for the Decade laid a foundation for WEPA case law in the Wisconsin courts. Thanks to the Decade’s arguments and its own interpretations of WEPA, the Supreme Court first acknowledged Wisconsin citizens’ and nonprofits’ right to challenge agency action under WEPA. Building on this initial decision, the Court then began to develop substantive caselaw under WEPA. The second and third decisions held the PSC (and by implication, other state agencies) accountable for its decisions and actions affecting the environment and required them to explain those decisions adequately to the public.
1975 – Case 1
What it did: This case established that groups like Clean Wisconsin have legal standing to sue governmental agencies on behalf of its members. There are two points of law established in this case that we take for granted today: (a) individuals can challenge a state agency’s compliance with WEPA if the agency’s action will allegedly harm the environment where they live, even though protection under WEPA does not create a public trust in the environment equal to the public trust in the navigable waters of the state, and (b) an environmental nonprofit organization can challenge a state agency action because its members are affected by that action.
Clean Wisconsin’s role: Clean Wisconsin, then Wisconsin’s Environmental Decade, was a key party in the suit against the Public Service Commission that led to this ruling.
Legacy: Prior to this case, individuals and organizations in Wisconsin didn’t have the rights to sue the state government for agency actions that harmed the environment. The court’s ruling in this case set a precedent that has been cited in numerous cases since.
1977 – Case 2
What it did: In this decision (part of the same action against the PSC as the first), the Court held that a specific section of WEPA applied to the PSC order being challenged. Section 1.11(2)(e) requires agencies to “[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” Here, the Court held that the statutory requirement to “describe”alternatives mandated a written product, and the PSC did not comply with this requirement.
Clean Wisconsin’s role: Clean Wisconsin, then Wisconsin’s Environmental Decade, was a key party in the suit against the Public Service Commission that led to this ruling.
Legacy: Like the first WEPA case, this one has since been cited in numerous court rulings, including Lake Beulah Management District v. Wisconsin Department of Natural Resources, 335 Wis.2d 47 (Wis. 2011).
1977 – Case 3
What it did: As part of its ruling, the Court first pointed out that the agencies will often approach the EIS question with a “bias favoring a negative decision,” and thus courts should subject the agencies’ determinations to “searching inquiry.” The Court then laid out the two-part test for judicial review of a negative EIS decision:
“First, has the agency developed a reviewable record reflecting a preliminary factual investigation covering the relevant areas of environmental concern in sufficient depth to permit a reasonably informed preliminary judgment of the environmental consequences of the action proposed; second, giving due regard to the agency’s expertise where it appears actually to have been applied, does the agency’s determination that the action is not a major action significantly affecting the quality of the human environment follow from the results of the agency’s investigation in a manner consistent with the exercise of reasonable judgment by an agency committed to compliance with WEPA’s obligations?”
The Court also held that where a challenge is raised, the burden is on the agency to justify a decision not to prepare an EIS. As applied here, the Court found that the PSC failed both parts of the test and that its decision not to prepare an EIS was “unreasonable and inadequate to discharge its responsibilities” under WEPA; however, many subsequent cases applying this test have upheld agency decisions.
Clean Wisconsin’s role: Clean Wisconsin was a key party in the suit against the Public Service Commission that led to this ruling.
Legacy: This case established the standard of judicial review for an administrative agency’s decision not to prepare an environmental impact statement (EIS) under WEPA.
[1] Wis. Envtl. Decade v. Pub. Serv. Comm’n, 69 Wis.2d 1, 230 N.W.2d 243 (Wis. 1975) (“WED I”).
[2] Wis. Envtl. Decade v. Pub. Serv. Comm’n, 79 Wis.2d 161, 255 N.W.2d 917 (Wis. 1977) (“WED II”).
[3] Wis. Envt’l Decade v. Pub. Serv. Comm’n, 79 Wis.2d 409, 256 N.W.2d 149 (Wis. 1977) (“WED III)”.
