WAUKESHA, Wis. (CN) — A Wisconsin appeals court on Wednesday upheld a circuit court decision barring regulations for PFAS and other contaminants implemented by the state natural resources agency, including those requiring businesses to test for and clean up contamination.
The underlying lawsuit was filed in Waukesha County Circuit Court in 2021 by Wisconsin Manufacturers and Commerce, the state’s largest business lobby, and Leather Rich Inc., a dry-cleaning business based in Oconomowoc. They claimed that, shortly after Leather Rich volunteered in 2019 for a program to help businesses remediate pollution on their property, the Department of Natural Resources moved the goalposts and tried to make businesses in the program start testing for “emerging contaminants” like PFAS or risk losing liability protections the program offers.
The department did so, the plaintiffs said, without giving affected parties proper notice; adequately defining emerging contaminants or hazardous substances and for what concentrations they should be tested; or going through legislative oversight in the form of statutory rulemaking procedures. Until the department goes through those procedures, PFAS and other emerging contaminants cannot be covered by state spills laws, the plaintiffs argued.
Waukesha County Circuit Court Judge Michael Bohren agreed that the department lacked the authority to regulate the pollutants and blocked its policies, though he ultimately stayed his ruling pending the agency's appeal.
On Wednesday, the Wisconsin Court of Appeals’ Second District, also based in Waukesha, affirmed Bohren’s decision against the department in a ruling penned by Judge Shelly Grogan.
In her decision, Grogan, a former law clerk of conservative Wisconsin Supreme Court Justice Rebecca Bradley who was elected to the appeals court in 2021 with the backing of prominent Republicans, cited state law related to challenging the validity of rules and a 1979 state supreme court decision outlining a five-factor test to determine if an agency action is a “rule” under the law.
Because the Wisconsin Legislature did not sign off on them, Grogan said, the three specific policies the lobby and Leather Rich challenged — including those allowing the department to regulate thousands of PFAS compounds as hazardous substances — all satisfied each of the five factors, and therefore are invalid and unenforceable rules.
The same statutory scheme and case law have been used to strike down Wisconsin government agencies' regulations before, including in a 2020 decision tossing an early Covid-19 lockdown order, in an order that was also written and championed by conservative-leaning jurists.
Also on the three-judge panel that heard the department's appeal was Judge Maria Lazar, who was elected to the appeals court in 2022 and, like Grogan, received support and endorsements from Republicans.
Liberal Judge Lisa Neubauer, who in 2019 lost a race for a vacant Wisconsin Supreme Court seat to conservative Justice Brian Hagedorn, rounded out the panel. In a dissenting opinion, Neubauer noted that, for the first time since the state spills law was enacted in 1978, “the court holds that the DNR must promulgate rules identifying certain substances as hazardous before the spills law applies to discharges of those substances,” disagreeing that the department was required to do so.
Neubauer was appointed to the appeals court in 2007 by former Democratic Governor Jim Doyle and was most recently reelected to a six-year term in 2020.
Asked for a reaction to Grogan’s decision, how it might affect PFAS regulations and whether the Department of Natural Resources plans to appeal, a department representative said on Wednesday that the agency was reviewing the decision and could not comment at this time.
In a press statement applauding the appeals court's ruling, Scott Rosenow, an attorney with Wisconsin Manufacturers and Commerce, said the decision "protects the public's right to know what the law requires" and that the lobby "will continue our fight to protect the public from government overreach."
PFAS — short for per- and polyfluoroalkyl substances, and also known as “forever chemicals” due to their resistance to dissolution — are a broad category of human-made chemical compounds that can come from a variety of commonplace sources, including non-stick cookware, fast food wrappers, household cleaners, firefighting foams and, according to a Waukesha-based environmental engineering consultant, dry-cleaning products and wastes.
Regulating the chemicals, cleaning them up and holding polluters responsible has become the subject of political wrangling and litigation in Wisconsin and nationwide. In the Badger State, Democratic Governor Tony Evers has made addressing PFAS contamination a priority since the earliest days of his tenure, but he and the GOP-controlled Legislature have been consistently at loggerheads over the issue.
Last month Evers rejected legislation over PFAS because it put too many restrictions on regulators and provided too many benefits for polluters. He also urged Republican lawmakers to release $125 million for fighting PFAS earmarked in the biennial budget last July — but that call met resistance from Republicans like Senator Eric Wimberger of Green Bay, who co-sponsored the rejected bill and said in a post on X that Evers’ plan for the money would turn it into a “slush fund for bureaucrats.”
Multiple municipalities in Wisconsin are struggling with PFAS contamination in their water tables, including the town of Campbell on French Island, where residents say they’ve been using bottled water for years since PFAS were detected in municipal wells.
Regions such as La Crosse, Green Bay, French Island and their residents have sued PFAS manufacturers like Minnesota-based 3M in recent years for damages, as has the Wisconsin Department of Justice.
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