The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman/Wisconsin Examiner)

In a 5-2 ruling on Tuesday, the Wisconsin Supreme Court affirmed the Department of Natural Resources’ (DNR) authority to regulate polluters who produce hazardous substances such as PFAS through the state’s toxic spills law. 

The court’s ruling reverses the decisions of the circuit and appeals courts that could have threatened the DNR’s ability to force polluters to pay for the environmental damage they cause. For more than 40 years, the spills law has allowed the DNR to bring civil charges and enforce remediation measures against parties responsible for spills of “harmful substances.” 

The lawsuit was brought by an Oconomowoc dry cleaner and Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby, after the owner of the dry cleaner, Leather Rich Inc., found PFAS on her property. 

In preparation to sell the business, Leather Rich had been participating in a voluntary DNR program to remediate contamination on its property in exchange for a certificate of liability protection from the department. During that process, the DNR determined that PFAS should be considered a “hazardous substance” under the spills law and communicated that on its website. 

If PFAS were present on a site, the DNR stated, participants in the voluntary program would only be eligible for partial liability protection. 

While conducting a site investigation through the program, Leather Rich determined three of four wells on the property exceeded Department of Health Services standards for PFAS concentration in surface or drinking water. The DNR requested that future reports from Leather Rich to the department include the amount of PFAS found on the property. Leather Rich responded by withdrawing from the program and filing suit. 

At the circuit and appeals courts, Leather Rich was successful, with judges at each level finding that the decision by the DNR to start considering PFAS a “hazardous substance” under the spills law constituted an “unpromulgated rule” and therefore was against the law. That interpretation would have required the DNR to undergo the complicated and often yearslong process of creating an administrative rule each time it determines that a substance is harmful to people or the environment.

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In the majority opinion, authored by Justice Janet Protasiewicz and joined by the Court’s three other liberal leaning justices and conservative Justice Brian Hagedorn, the Court found that the DNR spent nearly 50 years administering the spills law responding “to about 1,000 spills each year, without promulgating rules listing substances, quantities, and concentrations that it deems ‘hazardous substances.’”

Protasiewicz wrote that when the Legislature wrote the spills law, it left the definition of “hazardous substance” intentionally open-ended but required a potentially harmful substance to meet certain criteria if it would apply under the law. 

“The definition of ‘hazardous substance’ is broad and open-ended in that it potentially applies to ‘any substance or combination of substances,’” Protasiewicz wrote. “But the definition is limited in that the substance or combination of substances must satisfy one of two fact-specific criteria.” 

She wrote that the law considers “a substance or combination of substances is ‘hazardous’ if,” its quantity, concentration or characteristics may cause or contribute to an increase in mortality or serious illness or may pose a potential hazard to human health or the environment

Leather Rich and WMC had argued that the Legislature’s failure to include chemical thresholds in the statutory text left while including the use of terms like “significantly,” “serious,” and “substantial,” meant that the law was ambiguous and therefore any DNR determinations of what counts as hazardous must be delineated in an administrative rule. They argued that under this interpretation of statute, spilling milk or beer on the ground could constitute a toxic spill. 

Protasiewicz wrote if that were the case, “then scores of Wisconsin statutes on a wide range of subjects would be called into doubt,” and that their hypotheticals are undermined by the text of the statute. 

“It is possible for an everyday substance like milk or beer to qualify as a ‘hazardous substance,’ but only if it first satisfies [the statute’s] fact specific criteria,” she wrote. “A mug of beer or a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose a substantial present hazard to the stream’s fish and environment.” 

The majority opinion also found that communications the DNR made on its website and in letters to Leather Rich counted as “guidance documents” not as rules.

Justice Rebecca Grassl Bradley, who once gave a speech to WMC in which she declared to the business lobby that “I am your public servant,” wrote in a dissent joined by Chief Justice Annette Ziegler that the majority’s interpretation of the spills law left the state vulnerable to a “tyrannical” government that could both create the rules and enforce them. 

“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,” she wrote. “The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them. Americans have lived under this unconstitutional arrangement for decades, but now, the majority says, the bureaucrats can 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.” 

After the decision’s release, Democrats and environmental groups celebrated its findings as an important step to protecting Wisconsin’s residents from the harmful effects of pollution. 

“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,” Gov. Tony Evers said in a statement. “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. It’s a great day for Wisconsinites and the work to protect and preserve our state’s valuable natural resources for future generations.”

But WMC said the Court’s interpretation leaves businesses guessing what substances count as hazardous under the law. 

“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,” Scott Manley, WMC’s Executive Vice President of Government Relations, said in a statement. “Businesses and homeowners are left to guess what’s hazardous, and if they’re wrong, they face crushing fines and endless, costly litigation. This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”