Supreme Court Sides with DNR

Wisconsin’s Supreme Court is giving the state’s bureaucracy more power to act, this time in a pollution case.

The liberal majority court ruled 5-2 that the Wisconsin Department on Natural Resources didn’t need to set formal PFAS rules before ordering an Oconomowoc dry cleaner to clean-up contamination from the so-called forever chemicals.

The DNR argued that it made the rules clear on its website, and through letters to the dry cleaner. But Wisconsin Manufacturers & Commerce said that’s not the same as following the state’s law to create official policy.

“The DNR contends that all of these communications fail to satisfy [state law’s] criteria for a ‘rule.’ Specifically, they lack ‘the effect of law,'” Justice Janet Protasiewicz wrote for the majority. “We agree. Therefore, we hold that the DNR was not required to promulgate these communications as rules.”

Swing Justice Brian Hagedorn agreed with Protasiewicz and the court’s three other liberals.

Conservative Justice Rebecca Bradley said the decision sides with the bureaucracy over the people of the state of Wisconsin.

“This case is about whether the People are entitled to know what the law requires of them before the government can subject them to the regulatory wringer,” Bradley wrote in her dissent. “The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them.”

Wisconsin did not have any standards for PFAS chemicals until 2022. Before that, there was nothing officially that the state could do about PFAS contamination. Now, and after the ruling, the state will have much more latitude to force property owners to pay to clean-up PFAS chemicals.

Environmentalists like the Midwest Environmental Advocates said that’s the victory in Tuesday’s ruling.

“We are pleased that the court rejected WMC’s reckless attempt to undermine a bedrock environmental and public health protection that has kept Wisconsinites safe from toxic contamination for almost fifty years,” the group’s Rob Lee said in a statement.

The Wisconsin Supreme Court has delivered a victory for environmentalists in the battle over the regulation of “forever chemicals” known as PFAS

By SCOTT BAUER Associated Press and TODD RICHMOND Associated Press

FILE – A runner grabs a bottle of water at the athlete’s village prior to the start of the 116th running of the Boston Marathon, in Hopkinton, Mass., April 16, 2012. (AP Photo/Stew Milne, File)

FILE – A runner grabs a bottle of water at the athlete’s village prior to the start of the 116th running of the Boston Marathon, in Hopkinton, Mass., April 16, 2012. (AP Photo/Stew Milne, File)

FILE – A runner grabs a bottle of water at the athlete’s village prior to the start of the 116th running of the Boston Marathon, in Hopkinton, Mass., April 16, 2012. (AP Photo/Stew Milne, File)

FILE – A runner grabs a bottle of water at the athlete’s village prior to the start of the 116th running of the Boston Marathon, in Hopkinton, Mass., April 16, 2012. (AP Photo/Stew Milne, File)

MADISON, Wis. — The Wisconsin Supreme Court delivered a victory for environmentalists on Tuesday in the fight over “forever chemicals” known as PFAS, issuing a ruling that advocates said will hold polluters accountable.

The liberal-controlled court ruled that state regulators can force landowners to clean up emerging pollutants such as PFAS before they are officially designated as hazardous substances.

The 5-2 ruling is a defeat for the state’s powerful group representing businesses and manufacturers, which had argued the state couldn’t enforce regulations on substances before they were officially designated as hazardous.

It is the latest development in a yearslong battle in Wisconsin and nationally involving regulators, environmentalists, politicians and businesses over how to deal with PFAS contamination.

Cities large and small across Wisconsin, from Madison to Marinette and La Crosse to Wausau, are grappling with PFAS contamination.

PFAS, or perfluoroalkyl and polyfluoroalkyl substances, are a group of chemicals that have been around for decades and have now spread into the nation’s air, water and soil.

They were manufactured by companies such as 3M, Chemours and others because they were incredibly useful. They helped eggs slide across nonstick frying pans, ensured that firefighting foam suffocates flames and helped clothes withstand the rain and keep people dry.

The chemicals resist breaking down, however, which means they stay around in the environment and have a hard time breaking down in the body. There is a wide range of health harms now associated with exposure to certain PFAS, including low birth weight, cancer and liver disease.

The Wisconsin Supreme Court ruled in a case brought by the state’s largest business group, Wisconsin Manufacturers & Commerce, which sued the DNR in 2021 on behalf of Leather Rich, a dry cleaning business in Oconomowoc.

Leather Rich became aware of PFAS contamination in 2018 and was working on cleaning it up when the DNR posted a message online in 2019 saying it now considered PFAS chemicals a hazardous substance. The agency ordered the dry cleaner to test its groundwater for PFAS but didn’t tell the business which compounds it needed to test for or what levels would be considered dangerous.

They argued the DNR can’t force businesses to test and clean up contamination from emerging pollutants like PFAS without first designating them as hazardous substances. That process can take years and requires approval from the Legislature. All that time, polluters could harm the environment and put people’s health and safety at risk with no obligation to begin cleanup, the DNR argued.

But Leather Rich argued that businesses have a right to know which substances are subject to regulation before spending time and money on cleanup.

A Waukesha County judge and the state appeals court sided with Leather Rich.

The DNR appealed, saying the lower court’s ruling would neuter the state’s “spills law,” which was designed to confront pollution.

That law, enacted about 50 years ago, requires anyone who causes, possesses or controls a hazardous substance that’s been released into the environment to clean it up.

“Wisconsin’s Spills Law safeguards human health and the environment in real time by directly regulating parties responsible for a hazardous substance discharge,” Justice Janet Protasiewicz wrote for the majority.

No state law required the DNR to implement a rule before requiring Leather Rich to begin cleaning up the site, she wrote.

“The DNR has explicit authority to enforce a threshold for reporting the discharge of hazardous substances,” Protasiewicz wrote.

The court’s four liberal justices were joined by conservative Justice Brian Hagedorn in the majority. Conservative justices Annette Ziegler and Rebecca Bradley dissented.

They said the ruling allows bureaucrats to “impose rules and penalties on the governed without advance notice, oversight, or deliberation. In doing so, the majority violates three first principles fundamental to preserving the rule of law — and liberty.”

Democratic Gov. Tony Evers and environmental advocates hailed the decision.

“This is a historic victory for the people of Wisconsin and my administration’s fight against PFAS and other harmful contaminants that are affecting families and communities across our state,” Evers said in a statement.

Rob Lee, attorney for Midwest Environmental Advocates, called the ruling “a victory for the health and wellbeing of the people of Wisconsin” that reinforces “a bedrock environmental and public health protection that has kept Wisconsinites safe from toxic contamination for almost fifty years.”

A spokesperson for WMC, which brought the lawsuit, did not immediately respond to an email seeking comment.

Since the lawsuit was filed, additional state and federal regulations of PFAS have been put in place.

Federal regulators placed the first-ever national standards on PFAS in drinking water last year, but the Trump administration said in May that it planned to weaken those limits.

The state has imposed less restrictive limits on PFAS in surface and drinking water, defined as piped water delivered through public systems and noncommunity systems that serve places such as factories, schools and hotels.

But it has not implemented PFAS standards for groundwater, the source of drinking water for about two-thirds of Wisconsin residents. The agency stopped efforts to draft them in 2023 after determining that compliance would be too expensive.

Since 2018, community leaders, environmental advocates, and tribal nations have opposed plans to build a $1-billion gas-fired power plant in Superior that would emit an estimated 3 million tons of greenhouse gases annually. Last December, Clean Wisconsin and the Sierra Club petitioned the Wisconsin Supreme Court to hear their case arguing that state regulators failed to properly assess the climate and environmental impacts of the project.

The court has not yet responded to the petition but it may ultimately hear the appeal after the winner of the April 1 judicial election is sworn in for a 10-year term in August. Indeed, the new justice will likely adjudicate on a wide range of high-profile environmental cases in the coming decade. Given candidate Brad Schimel’s longstanding ties to the fossil fuel industry and his pro-polluter track record, a victory by the former state attorney general would have significant repercussions for Wisconsin’s environment.

State courts are becoming all the more important to climate concerns now that President Trump is pressing forward with his “drill baby drill” agenda while at the same time endorsing massive environmental deregulation at the federal level. Schimel has spoken about the need for a legal “support network” for Trump and has closely aligned himself with the president since receiving his endorsement, including appearing in a “teletownhall” with him on March 27.

Schimel’s Shilling for Polluters

Schimel’s record on environmental issues is clear. When he served as attorney general between 2015 and 2019, he repeatedly sided with major polluters and worked to undermine environmental protections.

In his first year as AG, Schimel established the post of solicitor general with a $1-million budget and appointed Misha Tseytlin, who had been involved with legal battles against the Clean Power Plan (CPP) and the Clean Water Act. Additionally, he selected Andrew Cook, a former fossil fuel lobbyist who had worked for Koch Industries and Marathon Petroleum, as deputy attorney general.

At Schimel’s direction, Wisconsin joined a lawsuit aimed at stopping the CPP, the Obama administration’s major initiative to reduce carbon emissions from coal plants. During his 2014 campaign, soon after Schimel had indicated that he would oppose the CPP, the Rule of Law Project — a dark money group tied to Leonard Leo — spent nearly $200,000 on an ad praising him for opposing Obama.

In his first year, Schimel also voted to prevent employees of the state’s Board of Commissioners of Public Lands from engaging in any climate change-related work as part of their jobs. The “gag order” on these workers was kept in place until 2019, when it was lifted after the AG lost his reelection bid.

While serving as AG, Schimel also joined several GOP attorneys general in filing an amicus brief in support of ExxonMobil as it faced investigation for misleading the public about climate change. In addition, he attacked Wisconsin’s Department of Natural Resources (DNR) for being too cautious when considering permits for high-capacity wells, which can draw 100,000 gallons of water daily and can significantly impact local environments.

Schimel’s Department of Justice (DOJ) also refused to fine 3M Corp for illegal air pollution at two Wisconsin facilities, despite recommendations from DOJ staff. Instead, he prompted the multibillion-dollar corporation to simply invest $665,000 in equipment upgrades.

The 3M affair was an example of how then-Attorney General Schimel “repeatedly failed to hold corporate polluters accountable, allowing them to escape legal consequences,” according to Tom Dawson, a former head of the DOJ’s Environmental Protection Unit. “It was almost as if they [Schimel’s team] were representing the polluters.”

Polluter Cash

Schimel’s loyalty to polluters is not just rhetorical, it is well-funded. He has benefitted from large campaign contributions and independent expenditures from polluters since his first campaign for AG in 2014 and continues to enjoy support from the same special interest donors in his current run for the Wisconsin Supreme Court.

Koch Industries, one of the largest privately held fossil fuel conglomerates in the world, continues to be one of Schimel’s most significant backers. Koch’s political arm, Americans for Prosperity, has poured just under $3.2 million into Wisconsin this election cycle to help Schimel secure a seat on the state’s highest court.

Koch previously contributed $10,000 to Schimel’s failed reelection campaign for AG and gave over $500,000 to the Republican Attorneys General Association (RAGA), which spent more than $2.5 million boosting Schimel in 2018. An investigation by the Center for Media and Democracy found that RAGA received more than $6.7 million in contributions from polluters between 2017 and 2019, including Koch.

RAGA is also linked to another longtime Schimel backer, Wisconsin Manufacturers and Commerce (WMC), which received $300,000 from RAGA in 2014 and spent roughly $1.5 million on pro-Schimel TV ads​ shortly after. WMC is the state’s most powerful business lobby with major polluters among its members and it has spent over $4.3 million helping Schimel’s Supreme Court campaign.

WMC supported efforts to stall the state’s clean energy transition and is litigating the DNR’s testing for PFAS in wastewater from industrial facilities. These toxic “forever chemicals” are used in a wide range of consumer, commercial, and industrial products. They have been linked to harmful health effects in people and animals, including cancer, reproductive issues, and kidney disease.

The Republican State Leadership Committee has spent at least $1.8 million through its Judicial Fairness Initiative to boost Schimel’s campaign. According to OpenSecrets, over $1 million of the committee’s funding in 2024 came directly from polluters, including $350,000 from Marathon Petroleum, $250,000 from Dominion Energy, and $200,000 from Koch Industries.

What’s at Stake?

If Schimel is elected on April 1, the current 4–3 liberal majority in the Wisconsin Supreme Court would shift, which would likely have profound implications for the state’s environment.

Like his opponent, Susan Crawford, Schimel has said that he would not make any blanket pledge to recuse himself from cases involving his political party or other major backers of his campaign. But unlike Crawford, he could not identify a single decision he made as a judge that angered his supporters when asked during a debate between the two candidates on March 12.

Schimel “demonstrated as attorney general that he could not be fair, he could not be unbiased, he could not enforce the law as required by the statutes,” Dawson said. “He was solely at the beck and call of industry.”

Dawson, who worked under both Democratic and Republican attorneys general in Wisconsin, concluded that if Schimel is elected, “He will rule in favor of industrial parties that appear before the Supreme Court, against the environment, in favor of polluters. He will put the interests of industry ahead of the interests of the public.”