Wisconsin Lawyer: Regulatory Reform: Moving Policymaking from State Agencies to the Legislature:

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    Regulatory Reform: Moving Policymaking from State Agencies to the Legislature

    In its 2017-18 session, the Wisconsin Legislature continued efforts to reduce the rulemaking authority of state administrative agencies. In the short term, the legislation imposes additional obligations on the agencies and on the legislature itself.

    Jodi E. Jensen

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    The Wisconsin Administrative Code is more than 11,000 pages long with just under 1,800 chapters of regulations that affect businesses, local governments, licensed professionals, and consumers and touch virtually every industry in Wisconsin. Seven years ago, the Wisconsin Legislature enacted 2011 Wis. Act 21 and thereby significantly altered the rule promulgation process. It was, according to the Wisconsin Attorney General, a deliberate shift of “policymaking decisions away from state agencies and to the Legislature”1 by defining the “authority with which [agencies] are allowed to act.”2

    Act 21 addressed two separate but related issues that had been shaped by litigation: 1) so-called desk-drawer rulemaking that occurred when agencies set policy without promulgating a rule and 2) rulemaking absent a legislative delegation of authority. More reforms, which curtail authority delegated to agencies and increase opportunities for public comment, have followed, with the goal of reducing overall regulation and eliminating “outdated” rules.3

    Since taking office, President Trump has signed 14 legislative repeals of federal regulations and issued an executive order for agencies to repeal two regulations for every one they adopt.4 For almost a decade, Congress has debated federal legislation known as the Regulations from the Executive in Need of Scrutiny (REINS) Act. Reintroduced most recently in 2017 and still pending, it requires Congressional approval of any proposed federal regulation that costs more than $100 million and review of all existing regulations exceeding this cost.5

    In 2017, Wisconsin became the first state in the nation to adopt its own version of the REINS Act (hereinafter WI REINS Act), which requires legislative approval of any rule with compliance costs exceeding $10 million.6 It was followed by 2017 Wis. Act 108, which requires ongoing review of existing rules and allows for their expedited repeal under specific circumstances, including when the rules no longer are authorized by statute. Wisconsin enacted two more laws during the 2017 legislative session that establish time limits for the exercise of agency rulemaking authority.7 The constitutionality of these reforms and the power of lawmakers to limit delegated authority has been debated federally and in Wisconsin.

    When Rules Are Required

    When an agency sets policy, it generally must do so by promulgating a rule. Promulgation is required if each of the following is true: 1) the agency action is a regulation, standard, statement of policy, or general order that is of general application; 2) it has the effect of law; and 3) it is issued to implement, interpret, or make specific legislation the agency enforces or administers.8 Before Act 21, Wisconsin courts had found that license and permit conditions, letters, memorandums, and general announcements issued by an agency were in fact rules that required promulgation under certain circumstances.9

    Current law continues to reject desk-drawer rulemaking.10 The legislature’s joint committee for review of administrative rules (JCRAR)11 can direct an agency to promulgate a policy statement or statutory interpretation as an emergency rule.12 Furthermore, agencies must submit to the governor’s office any documents issued that interpret, clarify, or explain statutes and rules to those persons who are regulated, presumably to determine if a rule is required.13

    Rule Promulgation Process

    A rule is invalid if it violates constitutional provisions, exceeds the agency’s authority, or was not promulgated in compliance with Wis. Stat. chapter 227.14 Built into Wisconsin’s rule promulgation process are formal and informal opportunities for elected officials and the public to assess the agency’s rulemaking authority and its compliance with chapter 227, confirm the rule’s conformance with legislative intent, and analyze the economic impacts.15 Either the governor or the legislature can halt promulgation at specific points, and proposed rules are automatically withdrawn if not promulgated by statutory deadlines.16

    Jodi E. Jensencom jjensen gklaw Jodi E. Jensen, U.W. 1995, is an associate with Godfrey & Kahn S.C., Madison.

    Scope Statements. A scope statement describes the statutory authority for the proposed rule, its objective, and the individuals or entities it affects. Each scope statement is submitted to the Wisconsin Department of Administration (DOA), which evaluates the agency’s explicit authority to promulgate the proposed rule and reports its determination to the governor.17 Agency authority to promulgate a rule cannot be implied. An agency has express authority to promulgate rules interpreting the provisions of any statute it enforces or administers, if the agency considers it necessary to effectuate the purpose of the statute.18

    It generally is not necessary for the legislature to direct an agency to promulgate the specific rule; if the proposed rule conforms to the statute being administered or enforced, and does not exceed the bounds of correct interpretation, promulgation is permitted. However, specific boards and commissions that have not exercised rulemaking authority in more than 10 years require a legislative directive to promulgate a new rule.19

    Although an agency might have express authority to write a rule, it might not have explicit authority to establish proposed requirements described in the scope statement. Any requirement, standard, or threshold implemented or enforced by the rule must be explicitly permitted or required by the statute.20 Under Act 21, explicit authority cannot be supplemented either by statements of legislative intent, purpose, policy, or findings or by descriptions of general powers or duties.21

    This limitation addresses an issue raised when the Wisconsin Department of Natural Resources (DNR) established permit conditions not explicitly authorized by statute. In Lake Beulah, the Wisconsin Supreme Court said that by delegating the state’s public trust duties under the Wisconsin Constitution to the DNR, the legislature delegated broad authority to establish such conditions.22 According to the attorney general, this rationale is “without support after Act 21.”23

    An agency may not begin writing a rule until a scope statement has been approved by the governor, published in the Wisconsin Administrative Register, and approved by the agency head. An agency head may not approve the scope statement until 10 days after its publication in the Administrative Register.24 Following the governor’s approval, an agency may voluntarily open a comment period and hold a public hearing. If it does not, either cochair of the JCRAR may direct the agency to do so. Agency staff may not begin drafting the rule and the agency head may not approve the scope statement until the comment period ends.25 If a rule is not promulgated within 30 months after the scope statement is published in the Administrative Register, it is withdrawn.26

    An agency must prepare and obtain approval of a revised scope statement if, at any point during the promulgation process, the scope of the proposal rule changes in any meaningful or measurable way.27 This includes the scope of any activity, business, material, or product that is not specifically included in the original scope statement. A Green County circuit court recently declared a Wisconsin Department of Revenue (DOR) administrative rule invalid because the DOR did not seek approval of a revised scope statement when rule revisions made after the agency public hearing changed the tax classification of an affected business.28 According to the court, a revised economic impact analysis and a second public hearing were also required under chapter 227. The DOR is appealing the decision.

    In 2017, Wisconsin became the first state in the nation to adopt its own version of the REINS Act, which requires legislative approval of any rule with compliance costs exceeding $10 million.

    Economic Impact Analysis. An agency must complete an economic impact analysis (EIA) of a proposed rule by evaluating seven issues. These include the implementation and compliance costs that are reasonably expected to be incurred by or passed on to businesses, local governments, and individuals and a determination as to whether the rule would adversely affect in a material way the economy, productivity, jobs, or Wisconsin’s overall economic competitiveness.29 Agencies must solicit information from affected individuals and entities and prepare the EIA in coordination with local governmental units that may be affected by the proposed rule.30

    The WI REINS Act authorizes either JCRAR cochair to request an independent EIA (IEIA) once the agency EIA is completed.31 If either analysis indicates that implementation and compliance costs are reasonably expected to be at least $10 million over any two-year period, the agency must cease work on the proposed rule. Drafting may continue only if the legislature passes legislation authorizing promulgation or the agency revises the rule and a later EIA or IEIA indicates that its costs are below $10 million.32

    Joint Legislative Council Staff Review. The agency must submit the draft rule together with a plain language summary and analysis, a fiscal estimate, and any EIA or IEIA to the Legislative Council staff for review. Staffers review the rule for form, style, and conformance with promulgation procedures as well as to determine whether the proposed rule is within the agency’s statutory authority and whether it conflicts with any related federal statutes or regulations. The review period extends for 20 working days following receipt of the rule unless the Legislative Council director extends it by an additional 20 working days.33 The Legislative Council staff’s final recommendations must accompany the rule when it is submitted to the legislature for review.34

    Public Hearing. In addition to any hearing held during a comment period on a scope statement, an agency generally must hold a public hearing before finalizing a proposed rule.35 A hearing cannot be held until the Legislative Council staff review period has expired or until the Legislative Council has submitted its report to the agency, whichever occurs first.36 At least 10 days before the hearing date, the agency must provide notice, including a copy of the proposed rule, any EIA or IEIA, and any additional materials required by statute. An agency is not required to amend the notice if it modifies a proposed rule before the hearing.37 A revised scope statement is required, however, if the modifications result in meaningful or measurable changes to the scope of the proposed rule.38

    Wisconsin courts have not considered whether legislative authority to prevent promulgation raises the same constitutional issues and, if it does, whether the REINS Act properly maintains the balance of shared power by requiring a legislative enactment to authorize promulgation in certain circumstances.

    Final Review. The governor must approve a final draft rule before it is submitted to the legislature and referred to a standing committee for review.39 If the legislature has not concluded its biennial session, the chief clerk of each house of the legislature must refer the rule to the appropriate standing committee within 10 working days after its receipt. Rules received after the session has concluded are referred to a standing committee when the next legislative session convenes, unless both the Assembly Speaker and the Senate President direct the referral to occur sooner.40 Following referral, a committee may waive its jurisdiction by a majority vote of a quorum of the committee.41

    A standing committee’s review period extends for 30 days and may be continued for another 30 days if the committee chair schedules a hearing or requests a meeting with the agency. However, when a rule is referred after the biennial session has concluded, the standing committee’s review period continues until the next legislative session convenes. The committee’s review period is also extended by 10 working days when the committee requests, or an agency voluntarily submits, a germane modification to the proposed rule. If a committee has not concluded its jurisdiction over a rule before the next legislative session convenes, its jurisdiction immediately ceases and the chief clerk must refer the proposed rule to the appropriate standing committee of the new legislature.42

    An objection to a rule’s promulgation, in whole or in part, may be made for any of six reasons, including a lack of statutory authority for the rule, its failure to comply with legislative intent, or a conflict with state law.43 The DOA’s determination that an agency had explicit authority to promulgate a rule as described in the scope statement might not apply to provisions included in the final draft rule.

    Even explicit authority does not allow an agency to set a requirement, standard, or threshold more restrictive than what is set by statute.44 According to the attorney general, in the regulatory context, more restrictive means not only that a rule “restricts or limits more conduct than does the requirement announced in the statute” but also that it “compel(s) additional conduct” or is “more demanding on the party [on] whom the standard is enforced,” such as heightened monitoring or reporting requirements.45 Recently, the attorney general determined that a rule requiring sprinkler systems in multifamily dwellings with more than four units was “more restrictive” than the statute requiring them in multifamily dwellings with more than 20 units and therefore unenforceable by state regulators.46

    When a standing committee’s jurisdiction expires, the JCRAR must review the proposed rule and any action taken by the committee. Within five working days after making an objection, a committee must report to the chief clerk, who must then refer the objection to the JCRAR within five working days.47 The JCRAR’s review period continues for 30 days and may be extended in the same manner as that of a standing committee. During its review, the JCRAR may again contract for an IEIA.48

    The JCRAR may, by a majority vote of a quorum of the committee, object to and temporarily or indefinitely suspend promulgation of all or part of a proposed rule. When a temporary objection is made, the suspension becomes permanent only if legislation introduced by the JCRAR to codify the objection is enacted. If such legislation is not enacted, the agency may promulgate the rule.49 Under the WI REINS Act, when an indefinite objection is made, promulgation is suspended until the legislature enacts legislation authorizing promulgation.50 Any member of the legislature may introduce such legislation.

    The WI REINS Act sparked debate about whether indefinite suspension amounts to a legislative “veto” of agency action in violation of separation of powers doctrine, but this new authority has not been challenged.51 The Wisconsin Supreme Court previously reviewed legislative authority to veto a rule after promulgation and held that such authority may be exercised only through the formal bicameral enactment process.52

    Wisconsin courts have not considered whether legislative authority to prevent promulgation raises the same constitutional issues and, if it does, whether the REINS Act properly maintains the balance of shared power by requiring a legislative enactment to authorize promulgation in certain circumstances. If the WI REINS Act is challenged, it is possible that a court will find that the legislature appropriately retains more authority over rule proposals than promulgated rules, which have the effect of law.53

    Promulgation. If a rule’s economic impact is less than $10 million and the JCRAR does not object to it or concur in the objection of a standing committee, the rule may be promulgated. A proposed rule is deemed withdrawn, however, if it is not promulgated within a specific period. In general, this is December 31 of the fourth year after the year in which an agency holds a public hearing.54

    Acts Affecting Agency Rule Making

    WI REINS ACT

    • JCRAR may direct an agency to solicit comments and hold a public hearing on a scope statement for a proposed rule.

    • Promulgation of a proposed rule with implementation and compliance costs in excess of $10 million over a two-year period is permitted only if a bill is enacted authorizing the rule.

    • JCRAR may indefinitely block part or all of a proposed rule and an agency may proceed only if a bill authorizing promulgation is enacted into law.

    ACT 108

    • JCRAR may request a retrospective economic impact analysis for any rule published in the Administrative Code.

    • An agency must review its rules every two years and initiate an expedited repeal of rules no longer authorized by statutes.

    • Agencies must begin the promulgation process within six months of enactment of a law requiring the amendment of an existing rule or adoption of a new one.

    Review of Promulgated Rules

    Since 2013, Wisconsin Assembly standing committees have reviewed more than 300 Administrative Code chapters and enacted legislation to directly modify or repeal a number of rules under the “Assembly’s Red Tape Review” initiative.55 Act 108 formalized this process by requiring ongoing agency review of the agencies’ own rules and establishing expedited procedures for repealing obsolete, unnecessary, unauthorized, and economically burdensome rules.

    Agencies. Under Act 108, each agency must conduct an ongoing review of new laws and a biennial review of rules published in the Administrative Code. It must identify laws that eliminate or restrict rulemaking authority and laws that require promulgation of a new rule either to effectuate the statute or to eliminate newly obsolete or unnecessary rules.56 Within six months of such a law’s enactment, the agency must submit a scope statement for a new rule or, if a rule is now “unauthorized,” it must submit a petition to the Joint Legislative Council staff to repeal that rule and publish the petition in the Administrative Register.57

    A rule is unauthorized when the law authorizing it is repealed or amended in such a way to alter or eliminate agency authority. The Legislative Council staff must submit a report to the JCRAR evaluating whether a rule identified by the agency is unauthorized. If the JCRAR approves the petition, the repeal is promulgated once filed with the Legislative Reference Bureau (LRB).58 If the JCRAR denies the petition, the agency may repeal or amend the rule pursuant to the general rule promulgation process.

    By March 31 of an odd-numbered year, each agency must submit a report to the JCRAR of its review of published rules, listing each rule that is unauthorized; obsolete or unnecessary; economically burdensome; adopted under authority that has since been restricted; or duplicative of, superseded by, or in conflict with another state or federal statute or rule or court decision.59 The agency must detail what actions it will take, if any, to address each rule listed. If the agency identifies an unauthorized rule and has not already begun the repeal process, it must submit a petition to the Legislative Council within 30 days of issuing the report.60 The LRB must also submit a biennial report to the JCRAR identifying any rules that might need revision.61

    Act 108 formalized this process by requiring ongoing agency review of the agencies’ own rules and establishing expedited procedures for repealing obsolete, unnecessary, unauthorized, and economically burdensome rules.

    Legislative Review.The JCRAR may temporarily suspend all or part of a promulgated rule after holding a public hearing to investigate a complaint it considers “meritorious and worthy of attention.”62 If the JCRAR votes to suspend due to a lack of statutory authority for the rule or another reason permitted by statute, the agency may not enforce the rule and the JCRAR must introduce legislation codifying the suspension. If the legislation is not enacted before the legislative session adjourns, the rule may once again be enforced.63

    Under Act 108, the JCRAR also may direct an agency to prepare a retrospective EIA for any existing rule; this EIA must consider the same fiscal impacts and make findings similar to an original EIA.64 A retrospective EIA may be the basis for rule suspension or it may inform the committee’s consideration of an agency’s biennial report of existing rules required by Act 108.

    Conclusion

    Before issuing policies or providing general guidance to regulated individuals and entities and the public, a state agency must determine first, whether action being taken is a “rule” as defined under chapter 227 that requires promulgation and second, whether the agency has the statutory authority to promulgate such a rule. If an agency exceeds the authority granted to it by statutes, the legislature may temporarily or indefinitely block promulgation.

    Recent reforms reinforce that an agency’s policy decisions, even when made in the public interest, must be statutorily authorized when they have the effect of law.65 Additional reforms are likely as Wisconsin policymakers continue debating the size of government and economic impact of rules.

    Agency Authority: Proposed Limitations and Additional Legislative Oversight

    The legislature considered but did not adopt two additional significant reforms during the 2017-18 legislative session.

    2017 Assembly Bill 384 & Senate Bill SB 295: Sunset of Rules

    The proposal, as amended by a committee, would have sunset each existing chapter of the Wisconsin Administrative Code between Jan. 1, 2021 and Jan. 1, 2030, according to a schedule developed by the JCRAR and the affected agency. An existing rule that was repealed and recreated before 2030 or a rule created after the effective date of the proposal would have expired on January 1 of the ninth year following its repeal and recreation or its creation. A rule that was readopted after expiration would have sunset on January 1 of the 10th year following an agency’s notice to readopt.

    Two years before the sunset date, an agency would have had to provide notice to the chief clerk of each house of the legislature and to the JCRAR of whether it intended to readopt the expiring chapter, with or without changes, or whether it intended to let it expire. The notice would have had to describe the basis and purpose of the chapter, the statutory authority for the chapter, and whether revisions were required due to changes in state or federal law or other provisions under Wis. Stat. chapter 227, and it would have had to include a list of all agency guidance documents related to the chapter.

    Each chief clerk would have to refer the notice to the appropriate standing committee within 10 working days. The review of the JCRAR and the standing committees would extend for 30 working days from the date of the agency notice, during which time any member of the three committees could object in writing to the chapter’s readoption. The JCRAR would have to vote on the objection within 30 days after the review period expired. If no objection were made or if the JCRAR did not concur in an objection, the chapter would be readopted with no further action. If the JCRAR did concur, the chapter would expire on the sunset date, unless the agency promulgated a new rule to readopt it. The scope statement for the new rule would have to indicate that it is a readoption and the economic impact analysis would have to compare actual costs of compliance with the chapter to any previous economic impact analysis. If a chapter expired before a new rule was promulgated, its provisions could not be enforced while no rule was in effect.

    In September 2017, Gov. Walker announced a small business agenda that included the sunset of administrative rules.66 The Wisconsin Assembly passed AB 384, but it was not taken up by the state Senate before the session adjourned.67

    2017 Assembly Bill 880 & 2017 Senate Bill 745: Agency Guidance

    The proposal required an agency to provide notice of a comment period 21 days before issuing guidance documents; provided that a court order, settlement agreement, or consent decree did not confer rulemaking authority under chapter 227; and directed that courts accord no deference to an agency’s interpretation of law. After the legislature adjourned in 2018, the Wisconsin Supreme Court ended “the practice of deferring to administrative agencies’ conclusion of law.”68 However, the court’s fractured decision – there were four separate opinions on this issue – may cause the legislature to revisit the issue during the 2019-20 session.69

    Under the proposal, a guidance document explains how an agency will implement a statute or rule or provides advice about how it is likely to apply a statute or rule to a class of persons similarly affected. Guidance documents include only formal or official documents or communications such as manuals, handbooks, directives, or informational bulletins. The agency secretary would have to sign the document before its issuance to affirm its compliance with chapter 227. Court briefs, declaratory rulings, private letter rulings, documents exempted from the public records law, and other communications exempted from rulemaking under chapter 227 would not be subject to the notice and comment requirements. Under the proposal, a guidance document would not have the force of law and would not provide authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. A person could petition an agency to promulgate a guidance document as a rule or seek judicial review of an agency’s action or inaction related to a guidance document.

    An agency would have to publish the proposed guidance document on its website and in the Administrative Register. The comment period would extend for 21 days following publication in the register and the proposed guidance could not be finalized and issued until that time, unless the governor approved a shorter period. An agency would have to post all guidance documents on its internet site and permit continuing public comment on them.

    AB 880 and SB 745 were introduced late in the 2017 session and did not receive significant consideration by the legislature. The Senate Labor and Regulatory Reform Committee approved SB 745, but neither bill was brought before the full Assembly or Senate for a vote.70

    Meet Our Contributors

    What’s the best thing about practicing administrative law?

    Jodi E. JensenYou have never seen it all. Laws and rules are always changing, and interpretations ebb and flow with the turnover in the state or federal executive branches. But even more so, business and industry are always changing. Innovation brings with it compliance challenges because a new product or service might not fit neatly into a regulatory category.

    In some states or agencies, the default is to prohibit the new behavior, but in many others, it is to work cooperatively through compliance issues with a business or an entrepreneur. I am privileged to represent some incredibly bright and creative people who have been able to do remarkable things thanks in part to regulators whose philosophy is to foster innovation, within the confines of the law.

    com jjensen gklaw Jodi E. Jensen, Godfrey & Kahn S.C., Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 Opinion of Wis. Att’y Gen. to Laura Gutiérrez, Secretary, Wis. Dep’t of Safety & Prof’l Servs., OAG 04-17, ¶ 13 (Dec. 8, 2017).

    2 Opinion of Wis. Att’y Gen. to Hon. Robin Vos, Chairperson, Assembly Org. Comm., OAG 01-16, ¶ 52 (May 10, 2016).

    3 Press Release, Sen. Devin LeMahieu & Rep. Adam Neylon, Sen. LeMahieu and Rep. Neylon Reintroduce “REINS Act” (Jan. 5, 2017); Press Release, Rep. Joan Ballweg, Sen. Stephen Nass & Sen. Alberta Darling, Legislators Introduce Legislation to Reform Administrative Rules (Apr. 28, 2017).

    4 Terry Carter, Imbalance of Power: The Executive Branch Pushes the Boundaries of the Separation of Powers, 104 A.B.A. J. 38 (Apr. 2018); Exec. Order No. 13771 (Jan. 30, 2017), Reducing Regulation and Controlling Regulatory Costs, 82 Fed. Reg. 9339 (Feb. 3, 2017).

    5 H.R. 26, 115th Cong. (2017).

    6 2017 Wis. Act 57.

    7 See 2017 Wis. Act 39. A scope statement is automatically withdrawn if a rule is not promulgated within 30 months. See also 2017 Wis. Act 158. The rulemaking authority of certain boards and commissions expires after 10 years if not exercised.

    8 Wis. Stat. §§ 227.01(13), 227.10(1).

    9 See Wisconsin Elec. Power Co. v. DNR, 93 Wis. 2d 222, 287 N.W. 2d 113 (1980); Schoolway Transp. Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976); Josam Mfg. Co. v. State Bd. of Health, 26 Wis. 2d 587, 133 N.W.2d 301 (1965); Frankenthal v. Wisconsin Real Estate Brokers’ Bd., 3 Wis. 2d 249, 88 N.W.2d 352 (1958); State ex rel. Clifton v. Young, 133 Wis. 2d 193, 394 N.W.2d 769 (Ct. App. 1986).

    10 Wis. Stat. § 227.10(1). “Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.”

    11 Wis. Stat. § 13.56. The committee is made up of five senators and five representatives.

    12 Wis. Stat. § 227.26(2)(b).

    13 Exec. Order No. 50, Relating to Guidelines for the Promulgation of Administrative Rules (Nov. 2, 2011).

    14 Wis. Stat. § 227.40(4)(a).

    15 While the promulgation process for an emergency rule is streamlined, it does not avoid review. The governor must approve both the scope statement and the final rule, and the agency must hold a public hearing within 45 days after its promulgation. Furthermore, an emergency rule is effective for only 150 days, and the JCRAR may grant only two 60-day extensions. See Wis. Stat. § 227.24(1)(e), (2), (4).

    16 Wis. Stat. §§ 227.111, 227.135(5).

    17 Wis. Stat. § 227.135(1), (2).

    18 Wis. Stat. § 227.11(2).

    19 Wis. Stat. § 227.111(1), (2).

    20 Wis. Stat. § 227.10(2m).

    21 Wis. Stat. § 227.11(2)(a)1.-2.

    22 Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶ 39, 335 Wis. 2d 47, 799 N.W.2d 73.

    23 OAG 01-16, supra note 2, ¶ 44.

    24 Wis. Stat. § 227.135(2).

    25 Wis. Stat. § 227.135(2).

    26 2017 Wis. Act 39; supra note 2; Wis. Stat. § 227.135(5).

    27 Wis. Stat. § 227.135(4).

    28 See Applegate-Bader Farm LLC v. Wisconsin DNR, No. 16-CV-48 (Wis. Cir. Ct. Green Cty. June 5, 2018), appeal docketed, No. 2018AP1239 (Wis. Ct. App. June 28, 2018).

    29 Wis. Stat. § 227.137(3)(e).

    30 Wis. Stat. § 227.137(3); Exec. Order No. 50.

    31 Wis. Stat § 227.137(4m)(a). The Assembly or Senate Organization Committee must approve the request.

    32 Wis. Stat. § 227.139(1), (2), (4). Legislative authorization is generally not required for an air quality rule proposed by the DNR, regardless of cost, if it is for the purpose of complying with an explicit call for a state implementation plan by the U.S. Environmental Protection Agency.

    33 Wis. Stat. § 227.15(2).

    34 Wis. Stat. § 227.19(3).

    35 Wis. Stat. § 227.16(1).

    36 Wis. Stat. § 227.15(1).

    37 Wis. Stat. § 227.17(2), (3)(b), (4).

    38 Wis. Stat. § 227.135(4).

    39 Wis. Stat. §§ 227.185, 227.19(2).

    40 Wis. Stat. § 227.19(2).

    41 Wis. Stat. § 227.19(4)(c).

    42 Wis. Stat. § 227.19(4)(b)1., 1m, 2., 3., 6.

    43 Wis. Stat. § 227.19(4)(d).

    44 Wis. Stat. § 227.11(2)(a)3.

    45 OAG 04-17, supra note 1, ¶ 20.

    46 Id. ¶ 21.

    47 Wis. Stat. § 227.19(5)(a).

    48 Wis. Stat. § 229.19(5)(b)1., 3.

    49 Wis. Stat. § 229.19(5)(d), (e), (f).

    50 Wis. Stat. § 229.19(5)(dm), (em), (fm).

    51 Cameron Sholty, Wis. Inst. For Law & Liberty, WILL Policy Memo: State REINS Act is Still Constitutional, Letter from Richard M. Esenberg & Thomas C. Kamenick to Interested Parties Re: 2017 Amendment SSA1-SB15 – the REINS Act (May 1, 2017); Letter from Anna Henning, Sr. Staff Att’y, Wis. Legislative Council, to Rep. Jocasta Zamarripa Re: Potential Constitutional Consideration Regarding Certain Provisions of 2015 A.B. 251, Relating to Administrative Rules and Rule-Making Procedures (Jan. 26, 2016).

    52 Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992).

    53 Wis. Stat. § 227.01(13); see Thomson v. City of Racine, 242 Wis. 591, 9 N.W.2d 91 (1943).

    54 Wis. Stat. §§ 227.14(6)(c)1.b., 227.15.

    55 Supra note 3, Press Release, Representative Joan Ballweg, Senators Stephen Nass & Alberta Darling, Legislators Introduce Legislation to Reform Administrative Rules (Apr. 28, 2017); https://www.facebook.com/RedTapeReviewWI/.

    56 Wis. Stat. § 227.29(4)(b).

    57 Wis. Stat. §§ 227.29(4)(c)2., 227.26(4)(b).

    58 Wis. Stat. § 227.26(4).

    59 Wis. Stat. § 227.29(1).

    60 Wis. Stat. § 227.29(3).

    61 Wis. Stat. § 13.92(2)(jg).

    62 Wis. Stat. § 227.26(2)(c), (d).

    63 Wis. Stat. § 227.26(2)(j).

    64 Wis. Stat. § 227.138(1).

    65 Jonathan H. Adler, Placing ‘REINS’ on Regulations: Assessing the Proposed REINS Act, Case Legal Studies Research Paper No. 2012-33 (rev. Jan. 2017).

    66 Fact Sheet, Governor Walker’s Small Business Agenda (Sept. 26, 2017).

    67 State of Wisconsin Assemb. J., 103rd Reg. Sess. (Nov. 9, 2017), State of Wisconsin Senate Journal, 103rd Reg. Sess. (March 28, 2018).

    68 See Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.

    69 See Jeffrey A. Mandell & Barbara A. Neider, Sea Change: No More Great Weight Deference to Administrative Agencies, WisBar InsideTrack, July 18, 2018.

    70 State of Wisconsin Assemb. J., 103rd Reg. Sess. (March 28, 2018), State of Wisconsin Senate Journal, 103rd Reg. Sess. (March 28, 2018).