Local and national media outlets alike have called it the country’s most important political race of 2023. The outcome of Wisconsin’s Supreme Court election on April 4th could result in a monumental shift in statewide politics and policy as Judge Janet Protasiewicz and Dan Kelly square off to tip the court’s ideological majority.
As of this writing, combined spending by the campaigns and third-party groups have shattered national spending records for a state supreme court race, and that spending total will only continue to climb as we get closer to election day. Both Democrats and Republicans know what’s at stake; from the future of Wisconsin’s legislative maps to the legality of the state’s 1849 abortion ban law to protecting our environment.
Any case involving Wisconsin’s environment could potentially be decided by the seven justices on the Wisconsin Supreme Court. Who voters place on the Court is therefore a critical question in determining the course of environmental protection in Wisconsin. Indeed, in the last few years alone, the Court has issued several decisions and orders resolving highly controversial cases affecting the environment.
SEIU v. Vos
The Court rejected a challenge to the “lame duck” bills enacted by Gov. Scott Walker on his way out the door. These bills restricted incoming Governor-Elect Evers’ and Attorney General-Elect Kaul’s powers by giving the legislature control or input over matters that had previously been up to the governor or attorney general alone. In particular, the new lame duck laws require legislative approval before the attorney general can settle certain lawsuits, allows the legislature to intervene as a party in some lawsuits involving the state, and allows the legislature to repeatedly suspend administrative rules, including the rules the Department of Natural Resources (DNR) uses to enforce state environmental standards. These lame duck restrictions on the governor and attorney general have already been used by the legislature to interfere in the proper implementation of environmental law in this state.
Clean Wisconsin v. DNR (High-Capacity Wells)
The Court ruled in Clean Wisconsin’s favor, holding that the DNR has the responsibility and duty under the Wisconsin Constitution to protect surface waters from harm caused by unsustainable groundwater withdrawals using high-capacity wells. The Court invalidated multiple well permits and the DNR began evaluating high-capacity well applications for unacceptable impacts to streams, rivers, and lakes.
Clean Wisconsin v. DNR (Kinnard Farms)
The Court ruled in Clean Wisconsin’s favor, holding that DNR has the legal authority to require groundwater monitoring and an animal unit limit for large dairy farms when necessary to protect water quality.
In both cases, the Legislature intervened in opposition to Clean Wisconsin, relying on the authority to intervene in cases upheld by the Court the year before in SEIU v. Vos (described above).
Meteor Timber v. Wisconsin Division of Hearings and Appeals (Petition for Review Denied)
Clean Wisconsin challenged a wetland fill permit issued by the DNR to Meteor Timber, an Atlanta-based company seeking to destroy a rare wetland in Monroe County to build a frac sand loading facility on the site. We prevailed before an administrative law judge, and then on appeal in the circuit court and in the court of appeals. Meteor Timber appealed once more to the Wisconsin Supreme Court. The Court declined to hear the appeal, but there was a dissent stating that at least one justice would have taken the case. This illustrates one of the more subtle ways the Court impacts Wisconsin’s environment: by deciding what cases to take on appeal in the first place.
Joshua L. Kaul v. Frederick Prehn
In a 4-3 decision, the Court ruled that Natural Resources Board Member Frederick Prehn could stay in his position on the board even though his 6-year term had expired. The board is comprised of seven members, nominated by the governor and confirmed by the senate, and helps make environmental policy for the state by overseeing DNR actions. Prehn had been placed on the Board by Gov. Scott Walker and was consistently hostile to efforts to strengthen environmental standards. When Prehn’s term ended, Gov. Evers nominated a replacement, but the senate refused to hold hearings to consider the nominee. The Court held that Prehn could stay until the senate confirmed his replacement which, given the legislature’s stance on Evers’ nominees, meant he could stay indefinitely.
Friends of the Black River Forest v. Kohler Company
In a 4-3 decision, the Court ruled that the Friends of the Black River Forest lacked standing, or the right kind of legal interest, to bring a suit challenging the DNR’s decision to swap land from the Kohler-Andrae State Park with Kohler Company to allow Kohler to build a golf course. The Court ruled this way even though the Friends consistently used the state park land affected by the land swap. In doing so, the Court may have adjusted the standard for standing in environmental cases in Wisconsin in a way that could make lawsuits challenging DNR decision making harder in the future.
Clean Wisconsin submitted an amicus brief in support of the Friends, urging the Court to apply existing standing principles and allow the suit to go forward.
County of Dane v. Public Service Commission of Wisconsin
In a 4-3 decision, the Court ruled that the Driftless Area Land Conservancy could not require former PSC Commissioner Michael Huebsch to sit for a deposition and answer questions regarding the possibility that he was biased when he approved the Cardinal-Hickory Creek Transmission Line through southwest Wisconsin. News stories had detailed how Huebsch held undisclosed communications with executives from utility companies and applied to become CEO of one of the companies pushing for the transmission line—and other utility projects— shortly after voting to approve of the project, raising reasonable concerns that some of his decisions while still on the commission were not neutral. The Court’s ruling makes it harder to bring a case alleging that there was a risk that a commissioner or judge was biased when they made a decision. This ruling also led to the end of Clean Wisconsin’s related but separate case alleging that there was a risk that Huebsch was biased when he approved the Nemadji Trail Energy Center, a proposed gas plant in Superior, Wisconsin.
We can expect that similarly important decisions affecting Wisconsin environment will come before the Court in the next few years. Indeed, any of Clean Wisconsin’s suits filed in state court could ultimately end up before the Wisconsin Supreme Court.
What makes the current election historically unique is the way that changing just a single member could affect case outcomes. Marquette University professor Allan Ball crunched the numbers from the 2021-2022 term on his SCOWstats website. He found a “surge” in cases decided by a single vote, with 54% of cases decided by a single vote (4-3). In other words, changing just one vote among the seven justices would have changed the outcome in over half of the cases they decided last term! This is “unprecedented in the three quarters of a century,” Professor Ball reviewed.
So, while every Supreme Court election is critical, it is no exaggeration to say that the outcome of April’s election could affect the result in an unusually high number of cases. In terms of protecting Wisconsin’s environment, it means that whether environmental laws are upheld, and our natural resources protected, is more likely than ever to come down to a single vote, and who casts that decisive vote will depend on April’s election.
The significance of this election cannot be overstated. The single most important action you can take is to vote on April 4. For information on registering to vote and identifying your polling place, visit myvote.wi.gov.