Hamilton Political Tidbits - Jan. 17, 2012
Introduction
The Wisconsin Assembly and Senate have scheduled floor sessions for the first time in 2012. The Senate is back in session today, and the Assembly is expected to take up the controversial mining bill next week.
Elections news seemingly never ends, as groups continue to seek signatures to recall Gov. Scott Walker and four Republican senators. The state Democratic Party plans to turn in recall petitions to the Government Accountability Board on Tuesday, January 17, 2012.
The Wisconsin Supreme Court continues to hear oral arguments in a number of cases. Below, Hamilton's Andrew Cook writes about a case pending before the Court that received oral arguments last week.
Visit Hamilton Consulting Group's Blog for timely news updates.
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Recall Update
By Andrew Cook
Recall proponents will finish gathering signatures that must be turned into the Government Accountability Board (GAB) this week. It is expected that there will be enough signatures to place the Governor and four Republican Senators on the ballot. When the actual elections will take place, however, remains to be seen.
The Republican Party is already in court seeking to force GAB officials to take more affirmative steps when vetting recall signatures. Previously, GAB officials caused a bit of controversy when they announced that they would not actively challenge questionable recall signatures, but instead said the onus would fall on the public to challenge those signatures.
Earlier this month Waukesha County Circuit Court Judge Mac Davis issued a ruling requiring the GAB to actively seek out and eliminate duplicate, fictitious, or unverifiable signatures. In response to the decision, the GAB announced plans to purchase software to build a database for reviewing recall petitions.
As a result of the more exhaustive review GAB will now under take to review recall signatures, it is expected that the 60-day review period required by law will need to be extended. This, along potential legal challenges to specific signatures, could drag out the review process.
The Milwaukee Journal Sentinel is reporting that the GAB will go to court to not only ask for more time to review signatures, but also to request that all recall elections be held on the same day. Having all the elections on the same day could push them back even further since a challenge in one race would impact them all.
Assembly to Vote on Mining Bill
By Andrew Cook
The Assembly is expected to debate and pass Assembly Bill 426 on January 26th. Supporters of the bill argue that the bill is needed due to the uncertainty of current permitting laws and rules implemented by the Department of Natural Resources, which they say discourage investment in mining. Moreover, proponents argue that the new law will provide jobs without harming the environment. Environmental groups oppose the legislation arguing that it will harm the environment.
Below are just a few of the changes the legislation will make to the permitting process:
- Establish a clearly defined permit process, such as determining when a mining application is complete and setting a deadline for a permit decision (360 days).
- Establish standards that must be met before DNR can grant a permit for water withdrawals and navigable water impacts (under Wis. Chap. 30).
- Allow for minimal wetland disturbance during the mining process, but require mitigation to achieve a net increase in wetlands.
- Continue to allow for public participation, but eliminate contested case hearings, which often delay projects.
- Continue to require a mining operator to get all of the permits and approvals normally required under current law.
Hamilton’s complete analysis of the bill as introduced is available here. Read Hamilton’s blog or follow @HCG500 on Twitter for the latest information and updates.
Wetlands Bill Would Provide Certainty in Permitting Process
By Emily Kelchen
One of several bills targeted at reducing uncertainty and increasing flexibility in Wisconsin’s regulatory system is Assembly Bill 463/Senate Bill 368, known as “the wetlands bill.” The bill, sponsored by Senator Neal Kedzie (R-Elkhorn) and Representative Jeff Mursau (R-Crivitz), makes significant changes to Wisconsin’s wetlands permitting process.
Wisconsin wetlands are currently subject to a myriad of different regulations. For example, some wetlands are subject to both state and federal regulations, while others are regulated only by the state. For non-federal wetlands, the Department of Natural Resources (DNR) can issue an individual or general certification, and must take extra precautions if the wetland is or is near to an area of special natural resource interest (ASNRI). While the jurisdictional overlap is unavoidable, the multitude of permitting standards for non-federal wetlands results in an overly complex area of law.
The wetlands bill would require the DNR to follow specific procedures and timelines for issuing individual wetlands permits for the first time ever. The DNR will be able to focus on larger and more complex projects by increasing the use of general permits for smaller, less complex projects. The DNR would also be permitted to consider economic impacts and mitigation when making a permitting determination.
Court Hears Oral Arguments in Collateral Source Rule Case
By Andrew Cook
The Wisconsin Supreme Court heard oral arguments in an important case, Orlowski v. State Farm Mut. Ins. Co., 2009AP2848, which will determine whether the collateral source rule applies to underinsured motorist (UIM) policies.
The Wisconsin Supreme Court has explained that the “collateral source rule states that benefits an injured person receives from sources that have nothing to do with the tortfeasor may not be used to reduce the tortfeasor’s liability to the injured person.” Leitinger v. Dbart, Inc., 2007 WI 84, 736 N.W.2d 1 (2007). For example, in Leitinger, the Court held that the plaintiff was allowed to receive the full amount ($154,818.51) of his past medical expenses, even though the actual amount paid by the plaintiff’s health insurer was $111,394.73.
The plaintiff in Orlowski was injured in an automobile accident arising out of the negligence of an underinsured motorist. The plaintiff recovered the policy limit from the underinsured motorist’s liability carrier and then brought a claim under her UIM policy against State Farm Mutual Automobile Insurance Company.
The claim was submitted to arbitration under the terms of the UIM policy. The arbitration panel determined that the reasonable value of the medical services was $72,985.94. The arbitration panel also determined that the plaintiff’s health insurer only paid $11,498.55 in past medical expenses. The parties stipulated that the difference between the total amount billed ($72,985.94) by the medical providers and the amount actually paid ($11,498.55) by the plaintiff and her health insurer totaled $61,487.39. The $61,487.39 was due to insurance company write-offs or reductions, and therefore the plaintiff did not pay the full amount actually billed by the health care providers.
The arbitration panel ruled that the collateral source rule did not apply and therefore the plaintiff was not entitled to $61,487 that was not paid by the plaintiff or her health insurer due to write-offs or reductions.
The plaintiff then filed a petition with the circuit court seeking an order from the court allowing her to recover the $61,487.39 in written-off medical expenses. The circuit court reversed the arbitration panel’s decision and ruled that the plaintiff was legally entitled to collect the full reasonable value of medical expenses from the tortfeasor.
However, as noted by the Court of Appeals, that court in Heritage Mut. Ins. Co. v. Graser, 2002 WI App. 125, 254 Wis.2d 851, 647 N.W.2d 385 held that the collateral source rule does not apply in UIM cases and thus the written-off medical expenses are not recoverable under UIM coverage.
In certifying the case to the Wisconsin Supreme Court, the Court of Appeals concluded that it was unable reconcile its holding in Graser with State Farm’s insurance contract and with the collateral source rule.
The Court will issue a decision by the end of its term in July 2012.
Venue Statute Tested in Recall Lawsuit
One of the major civil justice reforms passed by the Wisconsin Legislature and signed by Governor Walker in 2011, was 2011 Wisconsin Act 61, which modified Wisconsin’s venue statutes in cases where the sole defendant is the state, a state board or commission, or certain state officers, employees, or agents. The new law was recently utilized in Friends of Scott Walker v. The Government Accountability Board, which was filed in Waukesha County Circuit Court on December 15, 2011.
The complaint in the case sought a declaratory judgment from the court that the procedures of the Government Accountability Board, whereby the GAB accepts duplicative signatures on recall petitions, violates the Equal Protection clauses of the United States and Wisconsin constitutions, Article XIII, Section 12(7) of the Wisconsin Constitution, and Wisconsin law.
The case, which under previous law would have been venued in Dane County, was able to be filed in Waukesha County because of the statutory change passed in 2011 Wisconsin Act 61. The only defendants in the case were the GAB, and GAB officials in their official capacities, so the new law applied, allowing the plaintiffs to select appropriate venue.
On January 5th, Waukesha County Judge J. Mac Davis, agreeing with the plaintiffs, ruled that the GAB must take reasonable, affirmative steps to identify and strike duplicate, fictitious or unverifiable signatures from recall petitions.
This post, which originally appeared on the Wisconsin Civil Justice Council's blog, was authored by Emily Kelchen of the Hamilton Consulting Group.
Daubert Comes to Wisconsin a Success
One of the most important pieces of legislation supported by the Wisconsin Civil Justice Council in 2011 was the adoption of the Daubert standards for the admission of expert opinion evidence, bringing Wisconsin in line with the entire federal system and a majority of states. A comprehensive understanding of decisions and trends from other jurisdictions will be critical for Wisconsin lawyers as the standards are implemented in Wisconsin. In an effort to educate the legal community on these important new standards, WCJC organized and hosted Daubert Comes to Wisconsin – A CLE Summit on Expert Opinion Evidence on January 11, 2012.
Attendees proclaimed the Summit a great success, applauding the high caliber speakers for their engaging presentations.
Ric Gass, of Gass Weber Mullins LLC, lead off with a discussion of how the Daubert standard improves the quality of scientific information presented to juries and why that is a good thing. Dan La Fave, of Whyte Hirschboeck Dudek, then gave attendees an introduction to the American Society for Testing and Materials (ASTM) standards, which included information on how to assess both your experts and those of the opposing party.
Daubert is not just for toxic tort or complex medical malpractice suits, it is relevant in all cases involving experts. Don Best and Ed Sarskas, of Michael Best & Friedrich LLP, provided an example of how Daubert is used in intellectual property cases.
After lunch, John Sear, of Bowman and Brooke, provided attendees with an overview of the case law since Daubert, and an overview of his recommended Daubert Checklist.
Judge Rudolph Randa of the U.S. District Court for the Eastern District of Wisconsin, who has written more Daubert decisions than any other judge in the Eastern District, then provided practical advice to attendees based on some of the cases he had dealt with. Judge Randa reminded attendees that it is their responsibility to educate the judges about their experts, but that judges must also educate themselves about expert evidence.
Crivello Carlson attorneys Sam Hall and Travis Rhoades provided an informative look at special issues related to medical evidence, and reviewed common fallacies to watch for.
The last presentation of the day was a joint effort by Michael Brennan and Brian Cahill of Gass Weber Mullins to provide attendees with resources they can use when dealing with experts in “soft science.”
All of the resource materials from the Summit are available on the WCJC website.
Court Delays CSAPR
On December 30th, a federal appeals court ruled that the Environmental Protection Agency must delay implementation of the Cross State Air Pollution Rule pending the outcome of legal challenges to the case.
A broad-based, bipartisan coalition of groups including power companies, cities, states, industry groups and labor organizations has emerged to challenge the rule in court because of what they have deemed to be an unrealistic compliance deadline that could affect electric reliability and create significant economic impacts to consumers. Wisconsin is one of the states challenging the rule, along with Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, and Virginia.
On December 1, the EPA filed a motion arguing that the claims that CSAPR will require large emissions reductions starting on January 1, 2012 have been “grossly exaggerated” and that the state emissions budgets set by the EPA for 2012 and 2013 under CSAPR are based on emissions controls that either already exist or have been planned. The EPA further defended its rule by arguing that it was justified in issuing Federal Implementation Plans (FIPs) rather than requesting State Implementation Plans (SIPs), and also argued that, while there will be compliance costs to industry as a result of the rule, these costs do not amount to “irreparable harm.”
A three-judge panel of the U.S. Appeals Court in Washington sided with the challengers, agreeing to delay the implementation of the rule. It is unclear how the court will ultimately rule in the case, EME Homer City Generation LP v. U.S. Environmental Protection Agency, 11-1302. The legal standard for a stay suggests that the challengers are “likely to succeed on the merits” in the over all case. However, the legal questions in the case are very technical and wide-ranging, so a stay might mean that the court just wants more time to analyze the rule without changing the regulatory status quo. The court has not yet scheduled a date for argument, but the projected date is sometime in April.
This post, authored by Emily Kelchen, originally appeared on the Great Lakes Legal Foundation's Regulatory Watch Blog.
EPA and NHTSA Accepting Comments on Proposed 2017-2025 Fuel Standards
The public hearings and comment deadlines for the 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards issued jointly by the Environmental Protection Agency and the National Highway Traffic Safety Administration are approaching. Public hearings will be held on January 17, 19, and 24, 2012, and public comments are due by January 30, 2012.
Background
On May 7, 2010 the Obama Administration issued a final joint rule to reduce greenhouse gas emissions and increase fuel economy for all new cars and trucks sold in the United States. The EPA coordinated with the Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) to propose standards for passenger cars, light-duty trucks, and medium-duty passenger vehicles, covering model years 2012 through 2016.
The EPA set federal emissions standards for greenhouse gases using its authority granted to it by the U.S. Supreme Court (Massachusetts v. EPA). The NHTSA set related fuel economy standards under the Energy Policy and Conservation Act. The purpose is to allow auto manufacturers the ability to build a single light-duty national fleet significantly reduces greenhouse gases.
On July 29, 2011, President Obama announced joint rulemaking would also take place, for model years 2017-2025. The proposed standards were published in the Federal Register on December 1, 2012.
Under the proposal, automakers will need to increase the efficiency of cars by 5 percent annually from 2017 to 2025. Light trucks will have to become 3.5 percent more efficient for the first four years of the program, and then 5 percent annually for the remainder of the cycle.
The administration estimates that the standards will save consumers $1.7 trillion in fuel costs by the year 2025 and reduce oil consumption by 2.2 million barrels a day. The oil savings, consumer, and environmental benefits of this comprehensive program are detailed in a report released by the administration entitled Driving Efficiency: Cutting Costs for Families at the Pump and Slashing Dependence on Oil.
The EPA’s CO2 emission standards for cars and trucks are based on CO2 emissions-footprint curves, where each vehicle has a different CO2 emissions compliance target depending on its footprint.
Information on Public Hearings & Comments
The NHTSA and the EPA will hold three public hearings, each beginning at 10 am local time.
- Tuesday, January 17, 2012: Courtyard Detroit Downtown, 333 East Jefferson Avenue, Detroit, MI 48226
- Thursday, January 19, 2012: Crowne Plaza Philadelphia Downtown, 1800 Market Street, Philadelphia, PA 19103
- Tuesday. January 24, 2012, Hyatt at Fisherman's Wharf, 555 North Point Street, San Francisco, CA 94133
The hearing notice describes how to register to testify and provides more information about submitting written comments. All written comments must be submitted by January 30, 2012.
This post, authored by Emily Kelchen, originally appeared on the Great Lakes Legal Foundation Regulatory Watch Blog.
2012 Renewable Fuel Standards
The EPA finalized the 2012 percentage standards for four fuel categories that are part of the agency’s Renewable Fuel Standard program (RFS2) just in time for the new year.
The final 2012 overall volumes and standards are:
Biomass-based diesel: 1.0 billion gallons; 0.91 percent
Advanced biofuels: 2.0 billion gallons; 1.21 percent
Cellulosic biofuels: 8.65 million gallons; 0.006 percent
Total renewable fuels: 15.2 billion gallons; 9.23 percent
The Energy Independence and Security Act of 2007 (EISA) established the RFS2 program and the annual renewable fuel volume targets, which steadily increase to an overall level of 36 billion gallons in 2022. To achieve these volumes, the EPA calculates a percentage-based standard for the following year. Based on the standard, each refiner and importer determines the minimum volume of renewable fuel that it must ensure is used in its transportation fuel.
Last year, a congressionally-requested report from the National Research Council found that the United States is unlikely to be able to meet its Renewable Fuel Standard, which the 2012 standard proves out. The study also warned against the possible negative environmental outcomes that could result from the RFS. Renewable fuels may not provide the greenhouse gas emissions reductions hoped for, and production can impact air quality, water quality, water use, and biodiversity.
This post, authored by Emily Kelchen, originally appeared on the Great Lakes Legal Foundation’s Regulatory Watch Blog.