On May 13, on behalf of eight associations, GLLF filed a response to DOJ/DNR’s motion asking to modify the briefing schedule and reverse its positions. In the lower court proceedings, DOJ and DNR joined GLLF in defending Act 21 and those permit approvals. Now, DNR wants the Supreme Court to invalidate these same permits.
As always, GLLF briefed the issue from the perspective of the regulated community and the eight agribusinesses that were granted high capacity well permits by DNR. GLLF asked the Court to deny DOJ/DNR’s request for the following reasons:
- DNR must follow the law when attempting to rescind its own permits. The Wisconsin statutes and administrative rules create the only legal framework governing DNR rescission of approved high capacity well permits.
- These limited opportunities for a permit do-over do not encompass DNR’s changed positions where they are now espousing new legal interpretations before the Court.
- Due process protections prevent the government from revoking approved permits unless there are circumstances that are consistent with the procedural requirements prescribed by law.
- The Court has broad authority through judicial estoppel or other means to preclude a party from taking inconsistent positions in the same legal proceeding, particularly if it results in an unfair advantage over other parties.
To promote regulatory certainty and for basic fairness it is imperative that agencies support previously issued permits and other approvals necessary to conduct business in Wisconsin. There should be an administrative agency obligation to defend prior permit approvals, but if not, there certainly should be a duty not to attack previously issued permits.
(This is not the same issue as an AG’s duty to defend state law, which is a corollary, but not discussed.)