This week, the Wisconsin Supreme Court will hear oral arguments in a pair of cases that present two questions at the core of an ongoing struggle between some of the most powerful forces in the state.

​In the first, the seven justices will hear an appeal of a lower court ruling that could hamper the Wisconsin Department of Natural Resources’ ability to enforce the state’s “Spills Law.” Enacted in 1978, the law requires people or companies discharging a hazardous substance “to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state.”

The lawsuit, which the court will hear on Tuesday morning, was filed by Wisconsin Manufacturers & Commerce, the state’s powerful business lobby, in 2021. It argued that the DNR could not require people to test for so-called “forever chemicals” contamination — and require remediation if they’re present — because the agency hadn’t gone through the formal process of designating the chemicals, known as PFAS, as “hazardous substances.” A circuit court judge and the conservative District 2 Court of Appeals agreed, so the state appealed to the state Supreme Court.

The law enables the DNR to enforce the cleanup of any substance posing a risk due to concentration, quantity and toxicity: In the wrong setting, even spilled milk poses a risk. PFAS, or per- and polyfluoroalkyl substances, a family of man-made chemicals used in nonstick cookware and firefighting foam, have been linked to serious health conditions in humans.

The agency maintains that a court loss would strip its authority to compel polluters to clean up chemicals and provide emergency water under the Spills Law, cutting off residents on PFAS-contaminated French Island who have been receiving water since 2021.

This case is notable for more than just the potential environmental implications. It could also put WMC, one of the most powerful lobbying groups in state politics, at odds with the court’s liberal majority just as a potential majority-shifting court campaign gets underway. 

In 2023, WMC spent $5.6 million on the race boosting conservative former Justice Daniel Kelly in his failed bid against now-Justice Janet Protasiewicz. That figure made it the third biggest spender in the race — behind Protasieicz’s campaign and liberal group A Better Wisconsin Together — with the lobbying group outspending even Kelly’s campaign.

Wisconsin Watch will be keeping tabs on how the court’s liberal justices approach this case. Will they leave the lower court ruling in place? Rule against WMC, but only offer the DNR a narrow victory? Something else? A holding in favor of the DNR could draw the ire of WMC and the state’s business community — just as Wisconsin embarks on six straight springs of Wisconsin Supreme Court elections. Keep in mind that a 2005 environmental case involving lead manufacturers helped spur the modern era of expensive, politicized Wisconsin court races.

The second case, which the justices will hear on Thursday morning, is a continuation of a July 6-1 ruling blocking the Legislature’s Republican-controlled budget committee from “vetoing” certain conservation projects. In an opinion authored by conservative Justice Rebecca Bradley, the court declared that the committee’s review of certain projects was a separation of powers violation. 

The court initially only heard one of three issues raised by Democratic Gov. Tony Evers in the lawsuit. But now, it will consider another: Whether or not the Joint Committee for Review of Administrative Rules has the authority to strike down rules created by state agencies and professional boards. 

JCRAR is a 10-member committee that, under state law, currently has the ability to block administrative rules proposed and promulgated by executive branch agencies. For example, in 2023, the committee voted 6-4 along partisan lines to lift a ban on conversion therapy in Wisconsin. The ban was implemented in 2020 by a state board that supervises licensed therapists, counselors and social workers in Wisconsin. The board deemed conversion therapy to be unprofessional conduct for those professions.

Attorneys representing the governor argued the committee’s ability to throw out rules is unconstitutional, once again arguing it represents legislative overreach and is a separation of powers violation.

The case presents yet another opportunity for the court to play the role of power broker. Will it bless the committee’s current practice? Will it rule in favor of the governor, expanding his policymaking ability while curbing the authority of the Legislature? We’re looking for these answers, while also keeping tabs on whether or not it seems the justices will once again be able to reach consensus, as they did in their 6-1 ruling over the summer.

Wisconsin Watch is a nonprofit, nonpartisan newsroom. Subscribe to our newsletters for original stories and our Friday news roundup.

Wisconsin Supreme Court will hear cases on ‘Spills Law’ enforcement, legislative power is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

A sign protesting Enbridge Line 5 in Michigan. (Laina G. Stebbins | Michigan Advance)

“The land does not belong to us, it is borrowed by us from our children’s children” said Robert Blanchard, chairman of the Bad River Band of Lake Superior Chippewa. “We harvest our wild rice from the waters, we hunt from the land, fish from the lake, streams, and rivers to feed our families and gather the medicines to heal our relatives.” 

The Bad River Band cites this relationship with the land in its fight against the Enbridge Line 5 pipeline, which has operated in trespass on the Bad River Band’s reservation for years. Now, the Band and its allies are challenging the Wisconsin Department of Natural Resources (DNR) decision to grant permits that the Canadian oil company Enbridge will need to construct a re-route of the pipeline. The new route no longer trespasses on the reservation, it will still run through the Bad River watershed. The tribe and a coalition of state environmental groups say a spill in that area could be devastating.

Last Thursday, Midwest Environmental Advocates, 350 Wisconsin, the Sierra Club of Wisconsin and the League of Women Voters of Wisconsin filed a petition for a contested case hearing with the DNR, challenging DNR permitting for Line 5. Shortly after filing the challenge, Midwest Environmental Advocates received a report of a 69,000-gallon oil spill in Jefferson County.

According to an accident report shared with Wisconsin Examiner, the spill originated from Enbridge’s Line 6 pipeline. Some 1,650 barrels of crude oil are estimated to have leaked from the pipeline, with 42 gallons to a barrel. When plugged into Google Maps, GPS data in the accident report point to a roadway running through a grassy, wooded area. The map shows that the spill occurred near a waterway that flows into Lake Ripley, not far from a group of nature preserves and campgrounds. Although the pipeline segment had a leak detection system, the accident report states that this didn’t alert anyone to the leak, which was first noticed on Nov. 11 by an Enbridge technician.

Line 6 is one of four pipeliness that run from Superior, Wisconsin, to Illinois. It carries crude oil from Superior to Lockport, Illinois.

Tony Wilkin Gibart, executive director of Midwest Environmental Advocates, said in a statement that the Line 6 spill highlights the dangers of Line 5. “Consider that in the very same week that DNR issued permits for Line 5 based on its conclusion that the risk for a spill would be ‘low,’ DNR was investigating a significant oil leak on another Enbridge pipeline in Wisconsin,” said Gibart. “DNR’s reasoning for approving Line 5 defies common sense.”

In November, the DNR decided to issue wetland and waterway permits to Enbridge as a step towards moving the pipeline off the Bad River reservation. The DNR highlighted that the wetland permits would include over 200 conditions which Enbridge would need to honor, and which would keep the company in compliance with Wisconsin’s wetland and waterway standards. Both the DNR and the U.S. Army Corps of Engineers would need to approve the permits before construction of the reroute could begin. 

“Many of our people will feel the effects if we lose these resources,” said Blanchard. “In my view, the DNR failed our children when it gave Enbridge the permits to build this reroute. They failed to consider the company’s multiple disasters in Minnesota and in Michigan, which are still being cleaned up. They failed to consider our tribe, our water quality, and the natural resources of the entire Bad River watershed. As a tribal chairman and an elder, it’s my responsibility to protect the generations still to come. That’s why we are fighting this reroute in court.”

The Band is represented by EarthJustice in a lawsuit filed against the DNR which, like the petition filed last week by the environmental groups, accuses the state agency of producing an inadequate final Environmental Impact Statement on the reroute which violates the Wisconsin Environmental Protection Act. 

Blanchard highlighted his tribe’s reliance on wild rice fields growing along the Bad River and Lake Superior, as well as natural medicines, wild game, and the land itself which are crucial to the Bad River Band’s cultural practices and way of life. Every year the tribe holds an annual wild rice harvest, and Bad River Band members hunt and gather from the land all year. 

“If something was to happen during that time, or when that pipeline is in place, you know, it’s really going to affect a lot of things that we do here, and the way that we do things here on the reservation as far as our way of life,” Blanchard warned. 

Currently the Line 5 pipeline crosses the Bad River inside the boundaries of the reservation. If the reroute goes through,  Enbridge would construct 41 miles of new pipeline to cross the river outside of reservation land. The reroute would still place the natural resources the tribe relies on in danger if an oil spill or leak were to occur. 

Stefanie Tsosie, senior staff attorney at Earthjustice, also warned that constructing new pipeline damages natural formations and resources which are often irreplaceable. “Once construction starts they can’t undo the damage,” Tsosie said in a statement. “Enbridge has a terrible track record for pipeline construction and operation. And this place — this watershed and this territory — is not another place they can just plow through.” 

Opponents to the pipeline point to a history of ecological disasters due to spillage from Enbridge pipelines. In 2010, millions of gallons of crude oil contaminated the Kalamazoo River, creating a crisis which took years to address. Over the past 50 years, Enbridge’s Line 5 pipeline has spilled over 1 million gallons in dozens of different incidents. 

Today, an area known as the “meander” is also creating concern for the Bad River Band. “The river is changing course, and it does that throughout the way it runs,” said Blanchard. At the meander where the pipeline crosses,  he added, “If we have high water events, flooding, harsh winter with a lot of ice build up, and all that breaks loose in the spring, then we get this high water that very well could take that pipeline out, and cause a spill.”

The tribe is monitoring the situation regularly, but this does little to ease their anxieties. The meander is “quite difficult to get to,” said Blanchard, and it’s also just one area of concern along the pipeline’s route. “A few years back, we had an exposed pipeline coming down one of the sidehills up there,” said Blanchard. “There was quite a ways where the pipeline was exposed and just kind of hanging in mid-air, which could have been disastrous if it wasn’t found and something done about it.”

If Line 5 were rerouted, it would still go through other wetlands and habitats outside the reservation. “These are some of the most treasured areas in Wisconsin,” said Brett Korte, an attorney with Clean Wisconsin. “When we think of the beauty of our state, our precious freshwater resources, the places we must protect, these areas are at the top of the list.” 

In a statement, Korte added, “This push from Canadian oil giant Enbridge is getting national attention because what it’s proposing to do here in Wisconsin is dangerous.”

This report was updated with additional information about Line 6.