Environmental groups win PFAS court ruling

Laura Schulte

Milwaukee Journal Sentinel USA TODAY NETWORK – WISCONSIN

Allows DNR enforcement of cleanup, remediation

MADISON – The Wisconsin Supreme Court on June 24 affirmed a law that is key to allowing the Department of Natural Resources to require the cleanup and remediation of hazardous chemicals, including PFAS, also known as “forever chemicals.”

In delivering a victory for environmental groups, the liberal majority of the court, along with conservative swing vote Brian Hagedorn, overturned decisions of the circuit court and the appeals court that had barred the DNR from invoking the state’s Spills Law to require the cleanup of hazardous sub-stances.

In its 5-2 ruling, written by Justice Janet Protasiewicz, the court stated that the DNR’s statements on its website and letters to responsible parties are “guidance documents,” and the agency shouldn’t be required to create a new law stating that a substance is hazardous to issue guidance.

“Wisconsin’s Spills Law safeguards human health and the environment in real time by directly regulating parties responsible for a hazardous substance discharge,” Protasiewicz said in the ruling. “We therefore reverse the court of appeals.”

In an opinion concurring with the majority, Hagedorn said that while he agreed with the decision, it still needed to be noted that “guidance documents” are not immune from judicial scrutiny. He also noted that if the DNR is going to start referring to a new substance as hazardous under the Spills Law, some manner of notification might be beneficial to the public and businesses.

“When the DNR wishes to notify the public of its intention to enforce the Spills Law in new ways by identifying new hazardous substances, the legislatively directed notice-and-comment period may be both beneficial and constitutional,” he said.

Gov. Tony Evers called the decision a

“historic victory.”

“The Supreme Court’s decision today means that polluters will not have free rein to discharge harmful contaminants like PFAS into our land, water, and air without reporting it or taking responsibility for helping clean up those contaminants,” he said in a press release.

“It’s a great day for Wisconsinites and the work to protect and preserve our state’s valuable natural resources for future generations.”

Originally filed by Wisconsin Manufacturers & Commerce in 2021, the case took aim at Wisconsin’s Spills Law, which requires responsible parties to clean up contaminated properties. The business lobby alleged that the DNR’s policies requiring businesses to test for so-called “forever chemicals,” and clean up contamination if it exists, were unlawful because the agency had not gone through a rule-making process to designate the chemicals as hazardous.

The state has largely used the spills law to help communities dealing with contamination from PFAS, which largely enter the human body from drinking water and have been linked to some forms of cancer and reproductive issues.

In a statement following the decision, Scott Manley, the executive vice president of government relations for WMC, blasted the ruling.

“The DNR refuses to tell the regulated community which substances must be reported under the Spills Law, yet threatens severe penalties for getting it wrong. Businesses and homeowners are left to guess what’s hazardous, and if they’re wrong, they face crushing fines and endless, costly litigation,” Manley said in a media release. “This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”

During oral arguments in January, liberal justices expressed concerns over weakening the law and forcing the DNR to go through rule-making, which can take years.

Liberal Justice Rebecca Dallet said during the hearing that eliminating the rule could do more harm than good, using the example of spilled milk. While spilling a gallon or two might not be a hazardous spill, a whole tanker load would be. Then the DNR wouldn’t be able to do anything except attempt to make a rule following a spill, delaying action.

“By the time you make a rule about it, it will already have done whatever damage it did,” she said.

Conservative Justice Rebecca Bradley said not having firmly enacted standards creates “shifting goalposts” for businesses.

“In the past, those weren’t regulated or restricted substances and now they are,” she said.

Justices Bradley and Annette Ziegler wrote the dissent in the ruling, saying that the DNR can’t just create new rules that harm the public and businesses by forcing them to test for and remediate new hazardous substances.

“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 the dissent. “The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them.”

The two argue that the Legislature is the only entity that can create law, and that identifying new contaminants and issuing guidance is in violation of that rule. WMC filed the suit alongside Leather-Rich Inc., an Oconomowoc dry cleaning business. In 2022, a Waukesha County circuit judge agreed with the business lobby but stayed the implementation of the decision pending appeals, leaving the spills law in place.

Last year, the state Court of Appeals upheld the 2022 ruling, making way for the case to move to the state’s highest court.

Wisconsin’s Spills Law was passed in 1978 and allows the state to order testing and cleanup of sites contaminated by toxic substances. For PFAS, the law paved the way for the state to investigate, order remediation and provide resources like bottled water to communities dealing with extensive contamination.

Environmental groups argued that eliminating the spills law would weaken the state’s strongest pollution protection law and hamstring efforts to protect Wisconsin residents from contamination by forcing the DNR to go through the lengthy rule-making process.

Midwest Environmental Advocates was involved in the case on behalf of Citizens for a Clean Wausau, Clean Water Action Council of Northeast Wisconsin, River Alliance of Wisconsin, Wisconsin Environmental Health Network, and Doug Oitzinger, a former mayor of Marinette and a current alderman.

Tony Wilkin Gibart, the executive director for MEA, said the ruling would allow the DNR to continue its important work to keep people safe from environmental contamination, especially those in vulnerable communities.

“The Spills Law has been on the books for close to 50 years. Over that time, it has addressed thousands of sites of contamination and made an important difference to keep communities safe,” he said in an interview. “ In a release, Rob Lee, a staff attorney for MEA, celebrated the ruling.

“The Wisconsin Supreme Court’s decision is a victory for the health and well-being of the people of Wisconsin,” he said. “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.”

Beth Neary, a pediatrician who has advocated for the cleanup of PFAS, said communities will be safer if toxic substances can be addressed immediately.

“From Stella to Marinette to French Island and other communities facing PFAS-contaminated drinking water, this ruling will be celebrated,” she said in a media release. “It is a victory for the health of all Wisconsinites, because no parent should ever have to worry about the water used to cook or make infant formula.”