With former Governor Walker’s signature on Dec. 14, 2018, three bills the Legislature passed during its December special session became law.1
Environmental law practitioners should be aware of numerous changes contained in 2017 Wisconsin Act 369 (Act 369 or the Act), which may affect their practice.
While not comprehensive, this article highlights many of those changes. With at least one legal challenge already underway against some components of the laws2 and even more anticipated, practitioners should pay close attention to how these play out in the coming months.
Leslie Freehill, UW 2015, is an associate with Pines Bach LLC in Madison, where she concentrates her practice on civil litigation, environmental law, civil rights, and regulatory matters.
Expanded Service Requirements for Statutory Challenges
The Act expands the service requirements under Wisconsin’s Uniform Declaratory Judgment Act and in claims against governmental bodies, offices, and employees.
The Act requires service on the speaker of the Assembly, the president of the Senate, and the Senate majority leader “[i]f a statute, ordinance or franchise is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged.”3
This also applies to service on the Attorney General.4 The Act further declares that the Assembly, Senate, and Legislature are “entitled to be heard” in these actions.5
Right of Legislative Intervention and Outside Legal Representation
The Act provides that the Assembly, Senate, and Legislature may intervene at any time as a matter of right in any action which challenges “the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense.”6
Potential intervenors include the committee on assembly organization on behalf of the Assembly, the committee on senate organization on behalf of the Senate, and the joint committee on legislative organization on behalf of the Legislature.7
Each may obtain legal representation outside the Department of Justice (DOJ).8 This applies to any action in state and federal court which is pending on or initiated after the Act’s effective date.9
Wis. Stat. Chapter 227 Definitions and Procedures
Expansive changes to Wis. Stat. chapter 227 concern the definition, procedure, and operation of agency guidance documents.
A guidance document now includes “any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin” which either:
1) “[e]xplains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency;” or
2) “[p]rovides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.”10
Among other things, the Act excludes from this definition most types of documents that are excluded from the statutory definition of a “rule.”11 It does not define what falls within the scope of an official document or communication.
The Act declares that guidance documents do not have the force of law and do not authorize an agency to implement or enforce a standard, requirement, or threshold, including as a term or condition of any license.12 A declaratory judgment action before a circuit court is the exclusive means to challenge a guidance document.13
An agency must now submit any proposed guidance document to the Legislative Reference Bureau and allow for a 21-day public comment period.14 The agency head or secretary must sign and certify that the guidance document is “explicitly required or explicitly permitted” by a lawful rule or statute, and contains “no standard, requirement, or threshold that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes.”15
Following a six-month grace period after enactment of this law, any guidance document lacking this certification or the procedural requirements for adoption is thus rescinded.16
Following adoption, the guidance document must be posted to the agency website as long as it is in effect and must allow for continuing public comment.17
Notably, “[a]n agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document.”18
The Act also places substantial new demands on agency statements or interpretations of law, including via guidance documents. It provides an agency must cite the applicable federal or state statute or rule that supports “any statement or interpretation of law that the agency makes in any publication, whether in print or on the agency's internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers.”19
This first applies to guidance documents, forms, pamphlets, and other informational materials printed 60 days after the Act’s effective date.20
Limits on Department of Justice Settlement Authority
Following the Act, the Department of Justice may no longer settle actions it prosecutes at the direction of the officer, department, board, or commission that directed the prosecution.21
Instead, settlement requires approval of the Assembly, Senate, or Legislature if it has intervened or, if not, approval of the Joint Committee on Finance.22
Notably, “[n]o proposed plan may be submitted to the joint committee on finance if the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization.”23
Similar requirements apply to the Attorney General’s power to settle an action in which it defends a state department, officer, employee, or agent “on account of any act growing out of or committed in the lawful course of [their] duties” if the action requests injunctive relief or proposes a consent decree.24
Limits on Agency Rulemaking Authority
The Act bars an agency from agreeing to promulgate a rule as part of a plan submitted to the federal government for compliance with a federal law unless the agency has explicit statutory authority to do so at the time the plan is submitted.25 Any such federal compliance plan does not confer rulemaking authority on the agency.26
Similarly, an agency may not agree to promulgate a rule in a settlement agreement, consent decree, or court order unless explicitly authorized by statute at the time of the agreement, decree, or order.27
Agency Deference upon Judicial Review of Administrative Decisions
Lastly, the Act codifies certain language from the Wisconsin Supreme Court’s decision in Tetra Tech EC, Inc. and Lower Fox River Remediation LLC v. Wisc. Dep’t of Rev.,28 concerning deference to agency interpretations of law. Under the Act, “upon review of an agency action or decision, the court shall accord no deference to the agency’s interpretation of law.”29
Impact Yet to Come
Environmental practitioners should keep 2017 Wisconsin Act 369 in mind going forward, particularly as some provisions apply to cases already pending.
However, because these and other components of the December 2018 lame duck session may be subject to legal challenge, the Act’s impact on this area of law may not be known for some time yet.
1 2017 Wisconsin Acts 368, 369, and 370, enacted Dec. 14, 2018. The effective date of Act 369, the subject of this article, is Dec. 16, 2018, with certain exceptions. See Act 369, §§ 102 and 104.
2 See “Groups file lawsuit seeking to void laws passed during Wisconsin's lame-duck session,” Milwaukee Journal Sentinel, Jan. 10, 2019.
3 Act 369, § 98, codified at Wis. Stat. § 806.04(11); Act 369, § 101, codified at Wis. Stat. § 893.825.
6 Act 369, § 97, codified at Wis. Stat. § 803.09(2m); § 5, codified at Wis. Stat. § 13.365. See also §§ 28 and 29, codified at Wis. Stat. § 165.25(1) and (1m) (reiterating the Legislature’s right to intervene, within the statutory context of the DOJ’s duties) and § 99, codified at Wis. Stat. § 809.13 (relating to appellate intervention).
7 Act 369, § 5, codified at Wis. Stat. § 13.365.
8 Id., codified at Wis. Stat. § 13.365.
9 Act 369, § 97, codified at Wis. Stat. § 803.09(2m); see also § 102 (non-statutory provision providing the right to intervene applies in any action pending on the Act’s effective date, December 16, 2018).
10 Act 369, § 31, codified at Wis. Stat. § 227.01(3m)(a).
11 Id., codified at Wis. Stat. § 227.01(3m)(b).
12 Act 369, § 38, codified at Wis. Stat § 227.112(3).
13 Act 369, § 65, codified at Wis. Stat. § 227.40(1).
14 Act 369, § 38, codified at Wis. Stat. § 227.112(1)(a), (b).
15 Id., codified at Wis. Stat. § 227.112(6).
16 Id., codified at Wis. Stat. § 227.112(7)(a).
17 Id., codified at Wis. Stat. § 227.112(2).
18 Id., codified at Wis. Stat. § 227.112(3).
19 Act 369, § 33, codified at Wis. Stat. § 227.05.
20 Act 369, § 104 (non-statutory provision).
21 Act 369, § 26, codified at Wis. Stat. § 165.08(1).
24 Act 369, § 30, codified at Wis. Stat. § 165.25(6)(a)1.
25 Act 369, § 37, codified at Wis. Stat. § 227.11(3)(a).
27 Id., codified at Wis. Stat. § 227.11(3)(b).
28 2018 WI 75, ¶ 108 (“We have also decided to end our practice of deferring to administrative agencies’ conclusions of law.”)
29 Act 369, § 80, codified at Wis. Stat. § 227.57(11).