Clean Wisconsin’s Role in Establishing Wisconsin’s Environmental Policy Act (WEPA)
Clean Wisconsin, formerly Wisconsin’s Environmental Decade, played a key role in establishing Wisconsin caselaw under WEPA in the 1970s.
WEPA is modeling on the National Environmental Policy Act, and requires all state agencies to consider the environmental impacts of their major actions, but the statute itself does not set environmental standards. WEPA was signed into law in 1972, and the Decade was a party to three foundational Wisconsin Supreme Court decisions interpreting WEPA in 1975 and 1977.
In the first decision,[1] the Court held that Decade had standing to sue an agency of behalf of its members under WEPA and under general Wisconsin law. Established in this decision are two points of law 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. Before this case, individuals and organizations did not explicitly have these rights under Wisconsin law. This decision has been cited in numerous later cases.
In the second decision (part of the same action against the PSC as the first),[2] 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. This case was also cited in many subsequent cases, including Lake Beulah Management District v. Wisconsin Department of Natural Resources, 335 Wis.2d 47 (Wis. 2011).
The third foundational WEPA case to which the Decade was a party[3] established the standard of judicial review for an administrative agency’s decision not to prepare an environmental impact statement (EIS) under WEPA. 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.
Taken together, these three victories for 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.
[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)”.