A ruling from the Wisconsin Court of Appeals on a high-profile environmental issue could become yet another key decision facing the state Supreme Court, now controlled by liberal justices.
The Court of Appeals ruled Wednesday that the Department of Natural Resources’ could not force businesses to clean up certain toxic chemicals unless state lawmakers had not approved standards governing that work.
This upholds a Waukesha County judge’s 2022 finding that the DNR did not have the authority to order businesses to investigate and address certain chemicals, such as PFAS, under two state-run cleanup programs.
The appellate court ruling is a blow to the DNR, which has implemented some standards for PFAS, or per- and polyfluoroalkyl substances, but has thus far been thwarted in setting levels for the acceptable amount of the chemicals in groundwater.
Attorney General Josh Kaul’s office said it plans to appeal the ruling to the Wisconsin Supreme Court, saying "the (lower court's) decision would dramatically weaken our ability to protect Wisconsinites from PFAS and other emerging contaminants."
The high court has elected to take up other high-profile cases in recent months, such as a challenge to the state's legislative districts and a standoff between Gov. Tony Evers and the Republican-controlled Legislature.
The impact of the DNR ruling will be paused as long as it is tied up in the appeals process, although there is no guarantee the state Supreme Court will take up the case.
The 2-1 opinion in the Court of Appeals, written by Judge Shelley Grogan, is a victory for the state’s largest business group, Wisconsin Manufacturers and Commerce, which sued on behalf of an Oconomowoc dry cleaner in 2021.
Environmental groups worried that this outcome would undercut the effectiveness of the so-called “spills law” in Wisconsin, which requires parties responsible for pollution to report, investigate and clean up contamination or be held accountable by regulators.
And there were fears that the ruling could hinder the ability for the DNR to force businesses to clean up future toxic chemicals that emerge unless a rulemaking process is finalized and legislative approval is granted, all of which can take years.
“While we are disappointed by the court’s decision, we expect it to be appealed, and we are confident that the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated,” Rob Lee, a staff attorney with the nonprofit Midwest Environmental Advocates, said in a prepared statement.
PFAS have been used for years in a range of products from firefighting foams to non-stick pans and made their way into the groundwater of dozens of Wisconsin communities, including Madison.
While scientists are still researching the full health effects of the chemicals, PFAS are believed to potentially cause cancer, high cholesterol and other medical problems.
But the prospect of requiring businesses to clean up the chemicals without any sort of statewide standards imposes improper costs on them, Wisconsin Manufacturers and Commerce argued in the lawsuit.
“Today’s decision by the Court of Appeals protects the public’s right to know what the law requires,” WMC Litigation Center Executive Director Scott Rosenow said in a statement. “If the DNR expects every Wisconsinite to comply with the Spills Law, the DNR needs to explain in an official rule which PFAS it thinks are hazardous.”
