Where to Listen:
If you are feeling afraid to click on news stories every time a decision gets handed down by the US Supreme Court, you’re not alone. But some recent Wisconsin Supreme Court decisions are bringing much-needed good news in the fight to protect our environment.
Host:
Amy Barrilleaux
Guest:
Clean Wisconsin attorney Evan Feinauer
Resources for You:
Episode 29: Trump’s threat to safe water (and how WI can fight back)
Episode 24: What Trump 2.0 means for our environment
Episode 20: Supreme Court power grab
Transcript:
Amy Hi there and welcome. This is The Defender, Wisconsin’s environmental podcast. I’m Amy Barrilleaux. The Defenders powered by Clean Wisconsin, your environmental voice since 1970. Well, if you think it feels rough to care about the environment right now, about the impact of toxins on our bodies, about the safety of our drinking water, or the air we breathe, you’re not wrong. Last week, the chemical industry scored a big win when the Trump administration announced It’s gonna get rid of the science and research arm of the EPA. Researchers there had been assessing the cancer risks of a host of chemicals like ethylene oxide, which is used in the production of plastics and polyester and in a wide range of industrial processes. Turns out scientific research is being targeted and dismantled in a hurry across all our federal agencies, not just the EPA, but before you start feeling overwhelmed, take a minute to think about Wisconsin, where the state Supreme Court just issued two big wins that in the end do support scientific expertise at our state agencies. In this episode, a look at the impact of those two major cases here in Wisconsin and more on what’s going on at the EPA. That’s right now on The Defender. If you’re feeling afraid to click on news stories every time a new decision comes out from the U.S. Supreme Court, I wouldn’t blame you, but some recent Wisconsin Supreme Court decisions are bringing much-needed good news in the fight to protect our environment. Joining me is friend of the show, recurring guest, Clean Wisconsin attorney Evan Feinauer. Evan, thanks for being here yet again.
Evan Thanks, it’s great to be here again.
Amy So we’re here to talk about a couple of decisions that the Supreme Court made recently that I think, you know, certainly got some media attention when they happened, but maybe people haven’t thought about the big impacts or the bigger picture impacts. So tell me about these two decisions and how they might impact Wisconsin.
Evan Yeah, so whenever we’re talking about legal developments within environmental law, there’s a pretty good chance that we’re really talking about what’s known as administrative law, which is the law that governs how all of our agencies do their jobs. And that includes here, most relevantly, the Department of Natural Resources in Wisconsin or DNR. And the rules for the road in terms of how they do their work is really about figuring out how they do things like issue permits and draft rules that are um, the law with regard to, um, you know, these highly technical environmental issues and the basic arrangement is that the legislature gets to create these agencies and give them the basic job. And then they’re supposed to kind of hand it off to the agencies who then use their expertise and experience to, to try to fulfill the mission that they’ve been given by the legislature. And so these two cases, viewing them through that lens, We have, most recently, the Evers versus Marklein decision. And a little bit before that, this year, we had what’s known as the Spills Law case. I think the actual title was something like WMC versus DNR. But what these two cases have in common is that there were challenges to the DNR’s ability to kind of do its work, or I should say of agency’s ability to do their work, because it’s broader than just DNR, particularly in the Evers versus Marklein case. One way of thinking about these cases as well as other developments on the federal level is are we kind of living up to that bargain we had where the legislature says we’re going to give you some resources and put some limits on what you can do, but you have a mission and your mission is to go do X. And then when, when you go and do that, we’re gonna kind of abide by the science and the facts. And to do environmental work, you need the production of knowledge. You need the accumulation of data and then you need to kind of trust the experts to come to sound conclusions and, and apply them in the right way. So in the spills law case, what was at stake was whether or not DNR could treat PFAS, which we’ve talked a lot about in recent years as an emergent contaminant here in Wisconsin. It’s a particular concern in water, but can also be in soils and other media, um, and the department had moved to start treating it as a quote unquote hazardous substance under the spills law. And the spills law is the statute that says, hey, if you got a hazardous substance out there on land that you control, you’re probably gonna be responsible for helping us measure how much of it’s there, monitoring it, potentially cleaning it up. And that’s a law that’s been on the books for a really long time. And the way it’s written is, the department has discretion to determine what’s a hazardous substance is. And the people who filed this lawsuit said, not so fast if DNR wants to decide that PFAS is a hazardous a substance, switch. Nobody’s legitimately contesting that it’s not a hazardous substance. They nonetheless need to go through this laborious rulemaking process. And the whole goal of the lawsuit obviously was to prevent DNR from being able to treat PFAS as a hazardous substance again, even though it clearly is. And that lawsuit failed and the court said no no no legislature. You you wrote hazardous substance into the statute and Gave it a pretty broad definition and then empowered The experts at DNR to do their jobs And they know when something is a hazardous substance. And this isn’t an especially close call. You know, a bunch of PFAS in groundwater or in soil or something is clearly a hazard to human health. And so they get to tell folks to clean it up and to monitor it and to report on how that’s going. That’s not a problem. And that’s a nice result at a time when there have been a lot of challenges to agency action that have at the federal level and at the state level that haven’t always gone that way. So we feel like it’s a nice result that recognizes this important division of labor between the legislature and then the expert agencies doing their job in applying science.
Amy So this was basically the State Supreme Court kind of reinforcing that model that I think we’ve become, maybe we’ve started to take for granted, that there’s going to be scientists, researchers, experts at these agencies. They are going to use their knowledge and the agency’s authority to protect us, to protect our health, to protect our environment, to protect our communities. And that was something I think… Maybe people don’t always understand how these agencies work, but it is basically kind of like, well, we’re going to do all this research, and then we’re gonna put together a rule, and we’re then enforce that rule. That’s basically what happens. And I guess that leads into another case, the Evers vs. Marklein case, which on its doesn’t have anything to do with the environment.
Evan Yeah. So the Evers versus Marklein case, well, it didn’t in some ways have something to do with the environment, but, um, it started out as a challenge brought by the governor as the name of the case would suggest to challenge three, uh, ways in which administrative rules, which are the rules that agencies write and enforce had gotten hung up in the legislature. So for a long time, the rules were that the agencies draft the rules, and then the legislature gets a chance to review them. And if they don’t like them, they can temporarily suspend them, hold hearings, ask for more information. Around 2017, the legislature gave itself more power to block these rules. And that was part of a trend of a sort of slow accretion of power away from the executive branch agencies to the legislature that really kicked into gear In what are known as the lame duck bills that were passed at the very end of the Walker administration. And they functionally gave the legislature a veto over any proposed agency rules. And the knock-on effect of that was that even if an agency had been told by state or sometimes federal law that they had to do something through rulemaking, the legislature could block them and they could do it in not a terribly transparent way. They didn’t need to always explain themselves or have a good reason. And so what happened was, is we had these science-based rules that were legally, as far as any of us could tell, totally legitimate and not all four, as being blocked for essentially political reasons. And that really inverted the way this process was supposed to work, which was we’re going to empower these folks who really know what they’re talking about to draft rules, and then we’re gonna review it on the back end and just kind of make sure they dotted their I’s and crossed their T’s. And it really strayed away from being that to being a lot of … Interest group politics that interfered in the functioning of government and the end result being that people in Wisconsin were, uh, less safe in terms of public health and they were facing a degraded environment, frankly. And what the court did was say, this has gone too far. Um, it presents certain constitutional problems, which I won’t get into right now, but the bottom line was that you legislature gave yourself too much power and being able to permanently block these. Proposed agency rules, and we’re going to invalidate those provisions that empowered you to do that. And so the sort of new status quo going forward is that the agencies are going to have a much easier time drafting rules and then putting them on the books and then enforcing them, which I think is a proper rebalancing of where things should be after a really long time now of that arrangement stymieing the ability of these agencies to do their jobs correctly.
Amy So I think, you know, when you think about environmental protection, people might think of the enforcement action, like you need to clean this up, or you need to stop doing this from an agency. But a lot of environmental protection is just creating these rules, doing the research, making the rule, going through the process. So I, think maybe because it’s so mundane or just not exciting, I guess was it easy for people to not realize that this was going on in Wisconsin, that you had the legislature basically actively blocking any kind of rule that they didn’t agree with, including many, and we don’t know how many because agencies may not have gone after rules if they knew they were going to be blocked immediately, but basically stymieing rules that would protect the environment, it’s not like that got a headline every day or anything. It’s not like, you know, people are marching on the streets about this. Does that kind of, you know, boring agency action make it easier for this kind of stuff to happen?
Evan Maybe, I mean, in some ways, I don’t know what you’re talking about, I think it’s all riveting to me, as you know, Amy, but no, I think so. I think there’s two pieces to that question. One is that this stuff can be very technical. And when something is very technical and complicated, it is hard to translate into the sort of headline news of the day for busy folks that are consuming news in a sort of, you know garden hose in your face way, which is how we live our lives now, unfortunately. And the other piece of it is that, um, a lot of this was sort of stuff that wasn’t happening and those things almost by definition, uh, fail to generate headlines. And so that’s, it’s a little bit of like the, the dog, not barking problem. And you alluded to this in your question, but it’s to spell it out a little bit more, I mean, if you are the agency, why would you spend a bunch of time, uh with your staff and resources that are very limited drafting a rule that some interest group has, has called you on the phone and said, Hey, if you move forward with this thing, we’re going to have our allies in the legislature kill it, we just don’t, if the writing’s on the wall in that way, you just move on and so the public may not know that any of that happened and so they might not even be aware that there was a problem the agency was trying to solve that could have been solved pretty easily. Um, you know, and there’s some, some pretty simple examples of situations where, um, rules just needed to be updated. I mean, one of the things that’s interesting is that environmental law, because it’s fundamentally based on environmental science and just as science gets updated when we learn new things or things we thought we knew we don’t know anymore because they’ve been replaced by better evidence, we have to update this environmental standards from time to time and a lot of the laws anticipate that. But the agencies were having a hard time even doing that. So, for instance, one of the state agencies was trying to update our building codes to increase their standards for efficiency because they were simply incorporating what the new benchmarks are in the industry and as recognized by people who work in the building efficiency space and that got blocked and there’s really no good reason for that when what the legislature did was tell that agency, hey, let’s make sure that we have the current version of the building efficiency standards in place. And as those get updated. We should be updating our standards too and making our buildings more efficiency, which reduces energy costs for everybody uses those buildings. I mean, it’s a win-win around it’s good for the environment. And the only reason not to do it, I guess, would be because the, the, some of the building folks didn’t want to have to comply with stronger standards. And, you know, that’s not a public benefit. That’s not public good that’s being advanced there. And so it’s a good example of something that’s pretty mundane, you know, going from a version of a building efficiency code from one year to the more the more recent version, but over time, those failure to update situations leave us behind other places. You know, there are other places that just have stronger standards, uh, than Wisconsin, because we’ve kind of let stuff lapse in the last decade in a lot of domains.
Amy And so the Supreme Court has now between the Evers v. Marklein case, which is very much about rulemaking, and then the Spills Law, which about the DNR being able to use its legislatively given authority to determine what a hazardous substance is and how to deal with it, the Supreme Court has kind of provided this reinforcement of the way we’ve done these things for a long, long time, that’s saying, hey, you know, agencies do have authority and the legislature needs to kind of take a step back. And so that’s good news, right? We should be happy.
Evan It is good news and it’s, um, it’s important to point out this, this, these decisions in some way are really just kind of throwbacks. I think they building on the case of Clean Wisconsin, one of the cases we won in 2021, the Clean Wisconsin versus DNR cases, um which they’re, they cite in the, the spills law case, it was kind of a corrective. So the aberration. In our legal history, environmental law history in the state was really that 10, 15 years when things got real bad. And I think we’ve seen starting around four or five years ago with some positive change in terms of decisions that are swinging the pendulum back to the way it was for all intents and purposes kind of forever up until the 2010s. And I think that there was a good reason that was the way things were for a long time is because it was a proper way to run a railroad. It was much more functional. And it’s important to note that there are still lots of ways that these agencies need to be politically responsible. So it’s not like they can go off and be rogue actors and doing whatever. The legislature controls their budgets. Any rule that they promulgate the legislature doesn’t like, they can pass bills and have the governor sign it that changes what those rules say. Um, they can take away rulemaking authority. I mean, the legislature is still in charge. The, our elected officials are still in charge. All this did was, was put us back in a balanced posture where the agencies are kind of able to do their jobs a little bit more freely than they had been. And I think the result is going to be more environmental protections and improvements for things like public health. There’s still a pretty big challenge though, which is we’ve had a period of time where it’s been hard to draft and promulgate rules and there’s a little bit of catching up that needs to happen. So for instance, I’ve been very focused on a rule that is implementing the federal Clean Water Act at the state level. It’s something called known as our anti degradation policy. Our Wisconsin anti degradation policies been out of date for decades like I’m not exaggerating like literally decades and DNR has tried I think this is their third attempt to draft and promulgate a rule that gets us into compliance with just just getting us in compliance with the federal minimum requirements of what a rule has to look like And they’ve been stopped a bunch of times by folks who are concerned that if they have to meet the federal mineral standards, which have now been on the books for a decade That that’s you know, theoretically potentially maybe going to cost them some business expansion they want to do or something like that. And it’s a really modest thing in the sense that all we’re doing is trying to get Wisconsin in line with where all of our neighbor states are with where the federal government is just to come into compliance with the Clean Water Act. This isn’t some novel thing that DNR cooked up some radical idea. This is, this is like table stakes, the bare minimum we should be doing. And somehow it became politically controversial because certain interest groups were able just to pull some strings and talk to the right people and get the votes they needed on the relevant committees and the rule wouldn’t move forward through the legislature. And so that’s an example of something where it’s like, what we need to do now is just kind of move those rules now forward and just get up to the place where we should have been for a long time. And then we’re gonna be able to start actually making progress to solve the problems that we have and really try to once again be a leader on environmental issues in Wisconsin, which is what we were for a long time. And so I am, the rulings are great and I think there’s a chance to make progress here, but we have to recognize that on some of these issues, we’re playing catch up, which was unnecessary and is really sad to acknowledge.
Amy Yeah, and I’m glad you pointed out how Wisconsin used to be a leader on environmental issues. And then suddenly we hit a wall and bounced backward a bit. So it’s going to take some real action and work from our agencies to kind of catch us up. If we look at the federal level, it seems almost like we’re in this sort of opposite situation where instead of the legislative branch, Congress trying to take too much power, it’s sort of abdicating all of its power to the federal government and to the Trump administration. And so. What we’ve got is the dismantling of the agency science-led work, the workers who come in every day and do their jobs and are not theoretically political. They are just doing the research and providing facts and helping promulgate rules. So when you see what’s happening at the EPA level, what’s your impression of how this could potentially impact Wisconsin, seeing… the EPA and other agencies have that kind of backbone of science start to be totally taken away.
Evan Well, there’s a bunch of different ways it’s going to negatively impact Wisconsin. One is, as I’ve already mentioned, environmental law stands on the back of environmental science. We need the people doing the research to identify what the environmental risks are and what the solutions can be, and then those get transformed into solutions that are implemented by law. So if we’re gonna go from, excuse me, we’re going to go from people. Looking diligently for what the problems are and how to solve them to stick in our heads in the ground. I mean, it’s really gonna freeze our ability to be nimble and respond to particularly emerging and new issues The other thing is that a lot of state agency functions are funded in part by federal money particularly for programs that they’re implementing kind of cooperatively with the federal government so it isn’t like Uh, Oh, well, the feds aren’t doing this research, but the states can pick up the slack. There’s just really not that bandwidth at the state level to reproduce the kind of large federal research projects that EPA had been doing on environmental issues. So it’s not a shift of the research in many ways. It’s, it’s just not going to happen. And it’ll take a little time, but it will be a few years from now. And, and we’re going to be seeing the impacts of that because even if we got a new administration in a few years and they wanted to move to do things to protect the environment, you need all the data and the science to underlie and justify what you’re doing as EPA or as a DNR in terms of a new environmental standard. And if you just haven’t been doing the science, collecting and building the data, But you can’t be nimble and do those proactive things to protect the environment. So for example, if we’re trying to decide whether or not some new pesticide, for example is a good idea, is it safe to use? And it’s going through a review. Well, if nobody’s looking at whether or not it’s safe or not, of course it’s just gonna get licensed and approved for use because we have no evidence that it’s bad, not because it’s good, but because we stuck our head in the sand. And that’s not some accident. That’s obviously the whole intention of cutting the science is that If we kneecap the ability of agencies and therefore the public to know the risks that we face and the things that are causing the problems, then nothing can be done to address the risks or solve the problems. And so if you’re the people who are causing problems, that’s great for you because you don’t even have to fight over rules and regulations anymore because you can just pretend like there isn’t a problem. And we’ve seen that play out over the years here in Wisconsin. With a number of cases, including some I’ve worked on, where our opponents would say, not that there wasn’t a problem or something like that, but the jury’s still out, or there’s no science on this at the same time that they had been actively suppressing the ability of the relevant actors to gather the data in question. And that’s really frustrating because it’s obviously in bad faith, and it’s kind of treating people like they’re idiots. And so that’s going to affect Wisconsin, because we’re going to be in a position where you don’t know what you don’t t know, and it’s going to really limit even well-intentioned people trying really hard to protect the environment from being able to do their jobs.
Amy The EPA is celebrating its 55th anniversary this year, founded in 1970. Clean Wisconsin, also founded in 1970, the sort of, I think, birth of the environmental movement. People think of the 70s as the time when the federal government and state governments and the populace really started taking protecting our environment and public health seriously, wanting to invest in that. Here we are 55 years later. It feels like maybe the folks who never really wanted this to happen are kind of winning at this point. Never really wanted to, you know, stop using DDT or PCBs or any of those other things. Never wanted to worry about mercury emissions or any other things that… polluters might be having to spend money to stop using or to change their ways. So as we stand here looking back to 1970, how important is it that there are groups like Clean Wisconsin and environmentally minded people all across the state and all across the country as it feels like we’re kind of entering this dark ages of environmental science?
Evan Yeah, I think the historical point that you make is important in the sense that it does identify that we have been here before, in the sense that before the EPA and before the Clean Water Act and before the Clean Air Act, there was this notion that it wasn’t the government’s job to really do a lot of this work, to police pollution and limit pollution and protect health and the environment. And that obviously changed because the government not doing that wasn’t working. You know, the idea that the private sector was going to police itself and, you know, you know they’ll be responsive to public concerns about pollution and they’ll clean up their act themselves, we learned the hard way that that was just never going to be the case and instead of what we needed was a much more thoughtful and comprehensive approach to limiting pollution. And I think unfortunately… We’re probably going to have to once again learn the hard way. Maybe this is just something we’ll have to do every couple of generations. I hope not, but, um, I think part of the problem is that, you know, we as environmentalists and people in this space, there’s this real lack of, of trust that a lot of the public has with like quote unquote experts now. And that has been something that’s been brewing for a long time, and it’s part of a long effort to get people to not trust experts, unfortunately. And to create this idea that scientists have some sort of secret agenda. And then, you know, as somebody in my job who talks to these folks from time to time, they’re just… You know, dorky people who love their science thing. And the idea that these are these, you know upsetting partisan actors is just, it’s a joke when you meet these people. You know, these are the most mild-mannered, you know they’re just trying to do their jobs. And so it’s all based on a lie, but unfortunately what it’s really done is undermined the public’s appetite just to say, well, look, if you know the scientists are saying we shouldn’t drink this thing in our water, we probably should. And that’s a real problem and that’s a fundamental problem that might only get fixed if people kind of again learn the hard way that the experts were right about the things that they were being second guessed on. It’s really hard to know how that’s going to work today because you know as Amy you and I have talked about a bunch of times people get their news in very different ways than they did in 1970 and one of the concerns that I have is that things will be happening. People won’t know that they’re happening, they won’t why they’re happening, and therefore who’s to blame, frankly, what the solutions are. And we’re gonna be in a world where we could have declining environmental protections and reduced public health and protections from things like horrible air pollutants. And it won’t be clear what the story is of how that happened. And if the story of how it happened isn’t clear, we won’t able to fix it. No matter what someone like me can do in the courts or arguing up at the Capitol. And so it’s really important that people who are members of groups like Clean Wisconsin, you know, that we have these conversations and we recognize the reality of what’s happening and we talk to people in our lives and we try to be really thoughtful about who we talk and what we talk about and how we consume information to be part of the solution, um, rather than being kind of swept along by this, again, very intentional, tide of, don’t look at this, pretend this isn’t happening, you know, nothing to see here. Because they’re trying to get you to do that so that they can get away with what they want to get away with. And it’s going to kind of, unfortunately, going to take a lot of people working really hard to get us back to where we should have stayed the whole time.
Amy Evan Feinauer, Clean Wisconsin attorney. Thank you so much for your perspective on this. And for now, we’ll try to focus on the bright spot of the two most recent Wisconsin Supreme Court cases.
Evan Thank you, yep, good things can happen. There has been progress here in Wisconsin and we’re gonna keep fighting. Keep the momentum going.
Amy And thank you for listening to the Defender podcast. If you want to listen to more episodes with Evan as our guest, check out the show notes for links to those or head to cleanwisconsin.org/podcast. I’m Amy Barrilleaux. Talk to you later.
