A PFAS advisory sign along Starkweather Creek. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court on Tuesday heard oral arguments in a case that could upend the Department of Natural Resources’ (DNR) authority to enforce the state’s decades old spills law, which allows the agency to hold companies and property owners responsible for toxic contamination. 

The case was initially brought by a Waukesha County-based leather cleaning company and joined by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby. The arguments came just months before the election for an open seat on the Court that could again flip the body’s ideological makeup. In the 2023 state Supreme Court race, WMC spent more than $5 million airing ads in support of Republican-backed former Justice Dan Kelly. 

Leather Rich sued the DNR after the agency found it responsible for PFAS contamination on its property. PFAS, a family of man-made chemical compounds known as “forever chemicals” do not break down easily in the body or the environment and have been connected to serious health problems. 

For years, PFAS were used for a variety of commercial and industrial purposes, including non-stick pans, fast food wrappers and firefighting foams. In recent years, state and federal governments have been attempting to crack down on PFAS contamination but in Wisconsin, water supplies across the state have been found to be contaminated. 

The lawsuit argues that the DNR can’t use the spills law to force Leather Rich to clean up the contamination because the agency never promulgated an administrative rule declaring that PFAS chemicals count as hazardous materials under the spills law. In 2022, a Waukesha County judge agreed, finding that the agency lacked the authority to regulate the chemicals. 

Last year, a conservative-controlled Court of Appeals affirmed the circuit court decision. 

During the oral arguments Tuesday, Department of Justice Assistant Attorney General Colin Roth said that if the Court upheld the lower court decision, it would “fundamentally rewrite the spills law.” 

The law was written not to include a comprehensive list of materials the Legislature considered hazardous. Instead the law defines hazardous materials and leaves the rest open-ended, which the DNR has taken for the past 40 years to mean it can decide which materials are subject to regulation. The lawsuit argues the agency would need to create administrative rules with a list of specific  materials to be regulated as  hazardous, which Roth argued would cause serious harm to the state’s environment and the executive branch’s ability to perform its function. 

“The spills law has worked so well for decades precisely because the Legislature broadly defined the hazardous substances that dischargers must report and clean up,” he said. “Respondents insist that DNR must ignore this harmful PFAs discharge, and indeed many other kinds of harmful discharges, because no administrative rule lists all hazardous substances covered by the spills.” 

Roth said upending the spills law wouldn’t make the contamination go away, it would remain in the environment until the DNR can complete the rulemaking process and it would  “seriously weaken the entire executive branch’s core power to interpret and execute the law. Virtually all statutes require interpretation before agencies can administer them. If agencies cannot administer laws like this one without rulemaking, executive branch activity would grind to a halt.” 

He added that the spills law must be left open-ended because of the nature of scientific progress. He noted that numerous times throughout the history of the law, research has found that materials regularly used by industry have been found to be harmful and then regulated under the spills law and said that the agency must be able to respond to “a new set of facts.” 

“Time and time again, this happens under the spills law, science evolves,” he said. “People understand the contaminants that were used as part of ordinary commercial activity pose a threat to human health. This is how the spills law has worked for 50 years.”

Lucas Vebber, the attorney for WMC, argued that the agency wouldn’t need to promulgate rules delineating every possible hazardous material, but instead create a rule that gives a set of “objective criteria” under which a material can be declared hazardous. 

Vebber argued that it’s unfair to regulate businesses by allowing them to use a certain material for decades, then suddenly declaring the same material hazardous and subjecting those businesses to enforcement action from the agency. He added that businesses need clarity and the rulemaking process would create that.

“So at what point do people know, or are they supposed to know, that those substances become hazardous?” Vebber asked. “The Department has said that if a tanker truck of milk spills, it is certainly a hazardous substance discharge. But today, [opposing counsel] said, If you drop a gallon of milk, it’s not a hazardous substance discharge. So somewhere in the middle there, it becomes a hazardous substance discharge.” 

Justice Rebecca Dallet asked how the government would ever function if it had to pass a rule for each possible situation. 

“Each individual case is different,” she said. “Every fact situation is different. What if they spill five gallons? What if they spill 10? What if they spill 20? What about almond milk? What about oat milk? Isn’t that exactly why we have enforcement actions? Isn’t that exactly why we have the ability to interpret that the executive has to be able to apply the law? That’s called applying the law to the facts.” 

Justice Janet Protasiewicz noted that under the current administrative rulemaking process (which is currently being challenged in a separate lawsuit in which the Court will hear arguments Thursday) the Legislature has the authority to veto rules proposed by executive agencies and the possibility of a legislative veto could add even more uncertainty to the process, making it even harder for businesses to know what the rules are. 

Roth concluded his argument by pointing to a separate state statute which requires that any proposed administrative rule with an estimated compliance cost greater than $10 million be approved by the Legislature in a separate piece of legislation. He said any spills law rules would certainly exceed that threshold and questioned if it would make sense for the Court to require the Legislature to pass a separate bill in order for the executive branch to enforce a law it passed decades ago. 

“We’re in a situation where not only must the agency promulgate a rule defining hazardous substances, but the Legislature would have to pass another bill authorizing that rule,” he said. “So what do we have? We have a spill law that can’t be implemented until another statute is passed, amending it.”