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The Problem With AG Kaul Withdrawing Schimel’s Act 21 Opinion Before the Court Decides Clean Wisconsin

On May 1, Wisconsin Attorney General Kaul wrote a letter to the Wisconsin Secretary of Natural Resources withdrawing Schimel’s Act 21 opinion, OAG–01–16. We’ve written about why the withdrawal causes an explicit delegation problem and a rulemaking problem. But there is one more, fundamental problem: the issue is currently being decided by Supreme Court.

OAG–01–16 was issued by former Attorney General Brad Schimel in 2016. The 23-page opinion pertains to DNR’s statutory authority for its high capacity well permit program in light of 2011 Wis. Act 21.

After AG Schimel released the opinion, DNR made changes to its program to align with OAG-01-16’s view of the law. Clean Wisconsin sued DNR for approving high capacity well permits and the case went to court. GLLF is an intervenor in the case. The Department of Justice (DOJ) initially defended DNR.

Then Attorney General Kaul took office. By this point, the Clean Wisconsin case had made it to the Wisconsin Supreme Court. AG Kaul petitioned to switch sides—DOJ would now side with Clean Wisconsin again DNR’s permits..

Despite contention, the court granted the petition and AG Kaul’s negative view of the OAG-01-16 permits will be heard in court, as will the view of the farmers trying to get their wells. It is how our system works.

Rescinding OAG–01–16 while it stands before the Supreme Court has the markings of a backdoor attempt to push a controversial agenda without going through the proper process. AG Kaul rightly did not issue a new attorney general opinion. But the court is deciding this issue now and rescinding OAG–01–16 will lead to nothing but confusion, potentially causing the very stalemate OAG–01–16 was designed to address.

For more, read GLLF’s letter to Kaul on May 11 questioning the appropriateness of issuing such decision considering the Supreme Court cases or Our Analysis of DNR’s High Capacity Well Review Process.