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Wis. A.G. Challenges EPA, Pro-Union Ruling

MADISON, Wis. (CN) — The Wisconsin Department of Justice swung at the federal government Friday, only to be hit by a local branch of the state court system Monday.

The state filed its opening brief Friday in a challenge to the Environmental Protection Agency (EPA)'s new ozone regulations, which were announced last October and took effect Dec. 28.

Wisconsin joined eight other Republican-led states in yet another lawsuit against the EPA shortly thereafter, claiming the new National Ambient Air Quality Standard (NAAQS) for ozone, down from 75 to 70 parts per billion, is "impossible" to meet.

Under the Clean Air Act, the EPA sets national standards for six pollutants: Ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, fine particulate matter and lead. Experts say ozone is the most prevalent of the six and is the main component of smog that envelops large cities on hot summer days.

The ozone layer that blankets the earth from six to 30 miles above its surface protects people from harmful ultraviolet rays, but ground-level ozone is hazardous, according to the EPA.

Ozone forms when nitrogen dioxide and volatile organic compounds like benzene, which are emitted by cars and factories, cook in sunlight on hot summer days, Neil Carman, clean air director for the Sierra Club's Lone Star Chapter, said in an interview last year.

It is the states' responsibility to keep ozone below the standard, requiring it to implement safeguards if it does not, the Wisconsin Department of Justice (DOJ) said in a statement.

The coalition of states "argue the EPA violated the Clean Air Act by failing to address sources beyond the states' control, such as background ozone coming into the United States from other countries, and ozone caused by events like lightning and wildfires, which makes it impossible for some areas to meet the new standard," according to a statement from the DOJ.

Regulations like the NAAQS discourage job creators from moving to Wisconsin, the DOJ claims.

"Wisconsin is expected to take impossible measures, like controlling the weather, under the new Ozone NAAQS," Republican Attorney General Brad Schimel said in the statement. "We will not tolerate another instance of the EPA's unconstitutional abuse of power as it continues to hammer job makers in our state with costly regulation."

Schimel toned down the tough talk after Dane County Circuit Court Judge William Foust on Monday refused to stay his ruling in a right-to-work case, allowing his knockdown of a Republican-backed anti-union law to go into effect immediately, barring appeals court intervention.

The law, known as Act 1, was barely on the books for a year before Foust declared it unconstitutional in a lawsuit brought by the unions. It was passed after a marathon 24-hour legislative session ending on March 6, 2015, and signed by Republican Gov. Scott Walker shortly thereafter.

Foust ruled that the unions had not been justly compensated for the taking of their property — so-called "fair share fees" from nonmembers who benefit from union representation, which has already cost several unions thousands of dollars, the judge wrote.

"The duty of fair representation compels unions to provide at least some level of service to both union members and non-members; they have no other choice beyond ceasing to exist," Foust wrote in his April 8 ruling. "After Act 1, these unions may no longer request payment whatsoever for those services."

In a DOJ statement released Monday, Schimel said the state would seek a stay from the Wisconsin Court of Appeals, which it has already petitioned for review of the case's final disposition.

Schimel reiterated that he is "confident" the law will be upheld, just as similar laws in other states have been.

Thanks to a recent election, the highest court in the state — the Wisconsin Supreme Court — is now handily controlled by conservative justices.

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