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‘Friend of the Court’ Brief in League of Women Voters v. Evers

— Midwest Environmental Advocates supports League of Women Voters' challenge to the constitutionality of the December 2018 extraordinary session.

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Updated 7/2/19
On May 6th, 2019, the Wisconsin Supreme Court granted MEA’s motion to file an amicus curiae, or “friend of the court,” brief in League of Women Voters v. Evers on behalf of Sustain Rural Wisconsin Network (SRWN), River Alliance of Wisconsin, Friends of the Lower Wisconsin Riverway (FLOW), and Milwaukee Riverkeeper. The case challenged the constitutionality of the December 2018 extraordinary session, during which the Wisconsin Legislature passed three bills and confirmed 82 appointments. The brief was meant to aid the Court in determining whether irreparable harm woul occur if one of the bills, 2017 Wisconsin Act 369, was not put on hold while the courts determined the constitutionality of the extraordinary session.

On June 22nd, the Supreme Court voted 4-3  that the Legislature had constitutional authority to convene last December. The provisions in Act 369 regarding guidance documents that we have argued against have been put on hold in another lawsuit, SEIU, Local 1 v. Vos. The Court enjoined those provisions using essentially the same reasoning we set forth in the first part of our amicus brief. They are the only provisions from the extraordinary session that are not in effect at this time.

Case Summary

Why This Issue is Important

This issue is important because certain provisions in Act 369 that affect the ability of state agencies to adopt and maintain guidance documents are confusing, impractical, costly, will decrease agency efficiency, and will flood the courts with unnecessary lawsuits. Guidance documents are vital to properly functioning agencies because they streamline administrative processes, create regulatory certainty, reduce costs, and even ensure the consistent application of the law throughout the state. For example, guidance documents include instructions on how to fill out complex permit applications.

All existing guidance documents would be invalidated unless agencies comply with Act 369’s requirements by July 1, 2019. Those requirements include publishing existing guidance documents in the Administrative Register, putting them through a 21-day public notice and comment period, and having them certified by each agency head. The problem is that there are at minimum 200,000 guidance documents across all agencies statewide. Agencies simply do not have the resources available to meet those requirements before the deadline. This means that agencies which are already underfunded and understaffed—like the Department of Natural Resources—will have to divert staff and resources away from their normal responsibilities to even save a fraction of their guidance documents. Regardless, thousands of important guidance documents will be invalidated, impacting the ability of agencies to fulfill their missions to serve the public.

Act 369 would also create a gray area in the law by defining guidance documents in a way that overlaps with the definition of administrative rules. This will potentially allow agencies to adopt guidance documents instead of going through the administrative rulemaking process, meaning less public oversight of changes to agency policies. This lack of clarity will also lead to legal challenges over whether agency documents went through the correct process, potentially flooding the Wisconsin court system with unnecessary lawsuits for no good reason.

The Clients

SRWN is a statewide coalition of grassroots individuals and organizations dedicated to protecting their communities from the negative impacts of Concentrated Animal Feeding Operations (CAFOs). SRWN opposes Act 369 because it will overburden the executive branch and cause widespread confusion throughout the state. The complex, interagency regulatory scheme governing CAFOs is already difficult enough to navigate without another layer of uncertainty.

River Alliance of Wisconsin is a statewide nonprofit, nonpartisan advocacy organization that empowers people to protect and restore Wisconsin’s waters. River Alliance’s membership includes more than 1,500 individuals, business, and local watershed groups. River Alliance is concerned about DNR’s ability to review and certify thousands of guidance documents before the deadline, especially since the lack of these guidance documents will put the waters of the state at considerable risk.

FLOW is a citizen group dedicated to protecting the ecological integrity and public trust interests of the Lower Wisconsin State Riverway. FLOW opposes Act 369 because the wholesale rescission of guidance documents will make it even more difficult for DNR to enforce environmental laws designed to protect the Wisconsin River and its tributaries. The more DNR has to focus on Act 369’s guidance document requirements, the less DNR can focus on effective, science-based environmental protection.

Milwaukee Riverkeeper is a nonprofit organization that strives to protect, improve, and advocate for water quality, riparian wildlife habitat, and sound land management in the Milwaukee, Menomonee, and Kinnickinnic River watersheds. As a plaintiff in CWAC v. DNR, a case involving unlawfully adopted administrative rules, Milwaukee Riverkeeper knows how important it is that important changes in agency policies go through the rulemaking process.