Defending Wisconsin's Constraints on Regulatory Agencies
Clean Wisconsin v. DNR
In 2012, the Wisconsin Department of Natural Resources (“DNR”) renewed the Pollutant Discharge Elimination System permit of Kinnard Farms (“Kinnard”). Private individuals challenged DNR’s decision, and an Administrative Law Judge (ALJ) concluded that the Department could reissue Kinnard’s permit only if two conditions were attached.
Kinnard appealed for departmental review. Under 2011 Wisconsin Act 21, state regulatory agencies cannot impose conditions on licenses or permits that are not “explicitly required or explicitly permitted by statute or by rule.” Wis. Stat. § 227.10(2m). DNR concluded that the conditions mandated by the ALJ did not meet this standard, and renewed Kinnard’s permit without them. Clean Wisconsin then successfully sued DNR in Dane County Circuit Court over its refusal to impose the ALJ’s conditions. The State argues that DNR correctly applied the law in renewing Kinnard’s permit.
The State appealed to the Wisconsin Court of Appeals, District II, pursuant to Wisconsin’s venue statute. However, District IV removed the case to its own docket, an action that the State argues violated the venue statute. The State has appealed this action to the Wisconsin Supreme Court, while the case itself remains pending in the court of appeals.
Status: Pending in the Wisconsin Supreme Court for resolution of venue question.