A lawsuit working its way through the state court system and likely to be decided by the state Supreme Court could have significant consequences for environmental protection in Wisconsin. The lawsuit, which was filed by Wisconsin Manufacturers & Commerce (WMC), takes aim at the state’s authority under the Spills Law to respond to spills of toxic substances.
WMC alleges the state has been illegally implementing the Spills Law since it was passed in 1978. The case illustrates how future decisions made by the court will either uphold longstanding environmental and public health laws or dramatically weaken our rights to clean water and a healthy environment.
Wisconsin’s Spills Law gives the state authority to hold polluters accountable in places like Marinette, where Tyco is responsible for causing one of the worst sites of PFAS contamination anywhere in the country. PFAS, sometimes called forever chemicals, are a class of synthetic chemicals that have been linked to serious health conditions, including an increased risk of cancer, reproductive and developmental problems and thyroid hormone disruption. The Spills Law currently provides the state with the only legal authority it has to force Tyco to remediate the contamination.
But the impact of WMC’s attack on the Spills Law would be much broader than helping Tyco and other PFAS polluters avoid responsibility. The legal theory WMC is advancing would upend the longstanding interpretation of this 45-year-old law by forcing the state to go through a complicated and lengthy administrative rulemaking process before it could take action to address a toxic spill. That kind of requirement would render the Spills Law all but useless in holding polluters like Tyco accountable.
This case isn’t the only one that illustrates the power of the Wisconsin Supreme Court to make consequential decisions about bedrock environmental protections. In 2021, the Court handed down a landmark decision in a clean water case that affirmed the state’s authority to protect drinking water from pollution caused by large livestock operations in Kewaunee County and throughout the state.
In both of these cases, effective environmental protection hinges on the ability to enforce existing state law. While the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act are federal laws, they are implemented through state laws and administered by state agencies. Wisconsin’s environmental laws were some of the most effective in the country when they were enacted. However, since 2011, WMC and its allies in the Legislature have erected a number of procedural hurdles and initiated a series of lawsuits designed to make it more difficult for the state to implement and enforce those laws.
And it’s not just state government authority that is in WMC’s crosshairs. Local governments have likewise been targeted over attempts to use their authority to protect public health and the environment. Last fall, WMC sued Laketown, a small community in Polk County, over an ordinance the town enacted to regulate the operation of large livestock facilities. This case is also likely to be decided by the Wisconsin Supreme Court. If the court rules in favor of WMC, the decision could eliminate all regulation of livestock operations by local governments.
The effective implementation of environmental statutes is not an academic concern. These issues affect the water we drink and the air we breathe. Environmental protections in Wisconsin have increasingly come under attack at all levels of government. It will be up to the courts, including the Wisconsin Supreme Court, to uphold the laws as they were designed and intended.
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originally published at https%3A%2F%2Fwisconsinexaminer.com%2F2023%2F03%2F27%2Fstate-supreme-court-decisions-have-a-big-impact-on-wisconsins-environment%2F by Tony Wilkin Gibart