*Clean Wisconsin, Inc. v. DNR – Act 21 Explicit Authority and Public Trust Delegation

2011 Wis. Act 21 limits agency authority to the explicit language of a statute—no delegations arising from legislative intent, purpose, findings, or policy. DNR followed the explicit language in high capacity well permitting statutes that limited considerations when it approved nine high capacity well permits. Clean Wisconsin, DOJ and DNR argue agencies must take into account other sources of authority, including authority implied in prefatory statutory provisions.

While Wisconsin Legislature v. Palm recently addressed Act 21’s prescriptions for agency authority, DNR continues to ignore the bounds of its enabling legislation with its high capacity well permitting program. In its decision, the court should establish judicial review standards when assessing the reach of agency authorities. If the court finds that such legislative delegations to agencies must indeed be explicit, then Act 21 may well be the most important constraint ever on the administrative state.