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An affiliate of Wisconsin Manufacturers & Commerce

Chapter 227 / Regulatory Certainty

WMC seeks to challenge illegal rules issued by agencies. Where agency actions arise to the level of unenacted rules, the Litigation Center challenges those rules in order to have them declared invalid. WMC also takes steps to support similar efforts taken on by others.

Wisconsin Property Tax Consultants, Inc., et al. v. Wisconsin Department of Revenue
Court: Wisconsin Supreme Court
Status: In briefing in the Wisconsin Supreme Court
WMC Involvement: Plaintiff
Business Interest: This case is important because it gives the Wisconsin Supreme Court an opportunity to clarify when a party can bring a suit to challenge an allegedly unlawful regulation. Whether a party may challenge an allegedly unlawful rule from WDOR in circuit court, or whether the party must first challenge that rule at the Wisconsin Tax Appeals Commission, will have a dramatic impact in how quickly parties can resolve regulatory issues involving WDOR.

Tavern League of Wisconsin, Inc., et al. v. Angela Palm, et al.
Court: Wisconsin Supreme Court
Status: Case Closed
WMC Involvement: Amicus
This case challenged a statewide emergency order purporting to place capacity limits on certain businesses. Following some procedural wrangling at the circuit court, the court of appeals ordered the circuit court to issue an injunction against enforcement of the emergency order. The state appealed to the Wisconsin Supreme Court. WMC submitted a brief to weigh in on some of the important separation-of-powers issues present in this case.

Clean Wisconsin, Inc., et al. v. Wisconsin Department of Natural Resources, et al.
Court: Supreme Court of Wisconsin
Status: Case Closed
WMC Involvement: Intervenor/Co-Appellant
This case involved questions of interpretation of 2011 Wisconsin Act 21, a significant regulatory reform adopted almost a decade ago. Act 21 limits agency authority to the explicit language of that agency’s enabling statutes.

DNR abided by Act 21 and followed its explicit statutory authority in granting a total of 9 high capacity well permits. Clean Wisconsin and others sued DNR, claiming that the agency was also able to use non-explicit grants of authority, and in fact, was required to take into consideration other factors when deciding whether to issue those high capacity well permits.

Dane County, et al. v. Public Service Commission of Wisconsin, et al.
Court: Wisconsin Supreme Court
Status: In Briefing
WMC Involvement: Amicus
The Public Service Commission of Wisconsin (PSC) unanimously approved a project to build a new high-voltage transmission line known as the Cardinal-Hickory Creek line. This transmission line would run through southwestern Wisconsin, improve energy reliability in Wisconsin, and enable greater usage of renewable energy across the Midwest. Several conservation groups intervened and urged the PSC not to approve this project. After losing in the PSC, these groups alleged that two PSC commissioners should not have participated in the approval of this project because their professional associations gave them an “appearance of bias.” The Dane County Circuit Court allowed the parties to engage in discovery. The conservation groups issued a subpoena to a PSC commissioner, demanding that he turn over his personal cell phone and password so these groups could search for possible evidence of bias.

The case is now in the Wisconsin Supreme Court. The WMC Litigation Center filed an amicus brief arguing that, under binding precedent, the “appearance of bias” standard is not the correct legal standard.

Container Life Cycle Management v. DNR
Court: Wisconsin Supreme Court
Status: In Briefing
WMC Involvement: Amicus
This case involves a right fundamental to our government’s separation of powers: the right to judicial review of an executive-branch agency’s decision. In this case, the Wisconsin Department of Natural Resources (DNR) sent letters to a business informing it that, in DNR’s view, it was required to obtain a time-consuming and expensive permit. The business filed this lawsuit to challenge that determination. The Milwaukee County Circuit Court and Wisconsin Court of Appeals decided that the business had no right to judicial review at this stage in the process, reasoning that DNR had not made a “final” decision.

After the Wisconsin Supreme Court granted the business’s petition for review, the WMC Litigation Center filed an amicus brief in support of the business.

Clean Wisconsin, Inc. v. DNR
Court: Wisconsin Supreme Court
Status: Case Closed
WMC Involvement: Amicus
In this case, WMC filed an amicus brief in the Wisconsin Supreme Court. WMC argued that the Wisconsin Department of Natural Resources (DNR) had unlawfully imposed certain conditions on a farm’s Wisconsin Pollutant Discharge Elimination System (WPDES) permit. The supreme court ruled against the farm, holding that “the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions.”