Wis. Realtors Ass’n v. Pub. Serv. Comm’n of Wis.
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Plaintiffs, referred to collectively as the Wisconsin Realtors Association (WRA), filed a complaint against Defendant, the Public Service Commission of Wisconsin (Commission), arguing that Wis. Admin. Code ch. PSC 128 - titled “Wind Energy Systems” - is invalid because it was promulgated by the Commission without compliance with statutory rule-making procedures. The specific issue presented in this case was whether, under Wis. Stat. 227.115(2), the Department of Commerce was required as a matter of law to prepare a housing impact report before Wis. Admin. Code ch. PSC 128 was submitted to the Legislative Council staff for review. The circuit court granted summary judgment to the Commission, concluding that Wis. Admin. Code ch. PSC 128 was duly promulgated. The Supreme Court affirmed, holding (1) WRA did not demonstrate that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128; and (2) invalidating Wis. Admin. Code ch. PSC 128 under the circumstances would infringe on the role of the legislature, which the Court declined to do.
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2015 WI 63 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP1407 Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, Plaintiffs-Appellants-Petitioners, v. Public Service Commission of Wisconsin, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 353 Wis. 2d 554, 846 N.W. 2d 34) (Ct. App. 2014 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: June 30, 2015 February 5, 2015 Circuit Brown William M. Atkinson ROGGENSACK, C.J., ZIEGLER, J. dissent. (Opinion Filed.) NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs by John A. Kassner and von Briesen & Roper, S.C., Madison and oral argument by John Kassner. For the defendant-respondent, there was a brief by Cynthia E. Smith, Justin W. Chasco, and Public Service Commission of Wisconsin, and oral argument by Cynthia E. Smith. 2015 WI 63 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1407 (L.C. No. 2012CV1203) STATE OF WISCONSIN : IN SUPREME COURT Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, FILED Plaintiffs-Appellants-Petitioners, JUN 30, 2015 v. Diane M. Fremgen Clerk of Supreme Court Public Service Commission of Wisconsin, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 SHIRLEY S. ABRAHAMSON, J. Affirmed. This is a review of an unpublished decision of the court of appeals affirming a summary judgment of the Circuit Court for Brown County, William M. Atkinson, Judge, in favor of the defendant (the Public Service Commission of Wisconsin) Wisconsin Realtors and against Association, the the plaintiffs Wisconsin (the Builders Association, the Wisconsin Towns Association, John E. Morehouse, No. Sr., and Ervin E. Selk).1 We refer to the 2013AP1407 plaintiffs collectively as the Wisconsin Realtors Association, or WRA. ¶2 The issue presented is whether Wis. Admin. Code ch. PSC 128,2 titled "Wind Energy Systems" and sometimes referred to herein as "the wind energy rules" or "the rules," is invalid because it was promulgated by the Public Service Commission "without compliance with statutory rule-making procedures."3 ¶3 WRA asserts that in promulgating the wind energy rules, the Public Service Commission failed to comply with the procedural requirement set forth at Wis. Stat. § 227.115(2). Under Wis. Stat. § 227.115(2), if any rule proposed by an agency (including the substantially Public affects Service the Commission) development, "directly construction, cost, or or availability of housing in this state," then the Department of Commerce shall prepare a report, referred to by the parties and herein as a "housing impact report," before that rule is 1 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, unpublished slip op. (Wis. Ct. App. Mar. 25, 2014). 2 Wisconsin Admin. Code Ch. PSC 128 has not changed since it went into effect. All references to ch. PSC 128 are therefore to the current December 2012 version. 3 See Wis. Stat. § 227.40(4)(a) (2009-10) (providing that the court shall declare an administrative rule invalid if it finds that (1) the rule violates constitutional provisions; (2) the rule exceeds the statutory authority of the agency; or (3) the rule was promulgated without compliance with statutory rulemaking procedures). All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 2 No. submitted to the Legislative Council staff.4 2013AP1407 WRA asserts that a housing impact report was required for Wis. Admin. Code ch. PSC 128 as a matter of law. ¶4 Thus, the more specific issue presented is whether under Wis. Stat. § 227.115(2), the Department of Commerce was required as a matter of law to prepare a housing impact report before Wis. Admin. Code ch. PSC 128 Legislative Council staff for review. was submitted to the To decide this issue, the court must determine based only on the texts of the governing statutes and the wind energy rules themselves whether the rules directly or substantially affect the development, construction, cost, or availability of housing in this state. ¶5 The circuit court granted summary judgment to the Public Service Commission on its motion, concluding that Wis. Admin. Code ch. PSC 128 does not directly or substantially affect the development, construction, cost, or availability of housing in this state and thus that a housing impact report was not required. ¶6 The court of appeals affirmed, stating: "We must presume PSC 128 was duly promulgated, and [WRA] has not cited any evidence to rebut that presumption."5 4 The version of Wis. Stat. § 227.115(2) applicable in the instant case assigned the responsibility for preparing housing impact reports to the Department of Commerce. Responsibility for preparing housing impact reports is now in the Department of Administration. See Wis. Stat. § 227.115(1)(a) (2011-12) (defining "[d]epartment" as "the department of administration"). 3 No. ¶7 We conclude that WRA has not demonstrated 2013AP1407 that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. The texts of the governing statutes and the wind energy rules do not demonstrate as a matter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in this state. ¶8 We further conclude that invalidating Wis. Admin. Code ch. PSC 128 under the circumstances presented in the instant case would infringe on the role of the legislature, which we decline to do. ¶9 Accordingly, WRA's challenge to Wis. Admin. Code ch. PSC 128 fails. ¶10 Our analysis will proceed as follows. First, we set forth the relevant facts and procedural history. We then recite the applicable statutory standard framework of review. underlying this Next, dispute. we examine Finally, the we determine that WRA has not demonstrated that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. I ¶11 The relevant facts are not in dispute. 5 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, unpublished slip op., ¶23 (Wis. Ct. App. Mar. 25, 2014). 4 No. ¶12 The Public Service Commission is an 2013AP1407 independent regulatory agency with "jurisdiction to supervise and regulate every public utility in this state . . . ."6 ¶13 On September 30, 2009, the legislature enacted Wis. Stat. § 196.378(4g)(b), which provides that "the [Public Service Commission] shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system . . . ."7 ¶14 The promulgated setback statute by the further Public requirements for provides Service wind that the Commission turbines and rules to be shall include may include requirements for other aspects of wind energy systems, such as their visual appearance, lighting, and electrical connections to the power grid; the shadow flicker they produce; the noise they produce and the proper means of measuring that noise; and their interference with radio, telephone, or television signals. The statute also states that the setbacks established by the Public Service Commission shall "provide reasonable protection from any health effects . . . ."8 ¶15 Wisconsin Stat. § 196.378(4g)(b) provides in full as follows: 6 Wis. Stat. § 196.02(1) 7 See 2009 Wis. Act 40, § 12. 8 Wis. Stat. § 196.378(4g)(b). 5 No. 2013AP1407 The commission shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401(1m)(a) to (c). The subject matter of these rules shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules shall also include decommissioning and may include visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than these rules.9 ¶16 The enactment of Wis. Stat. § 196.378(4g)(b) began a three-year process that culminated in the promulgation of Wis. Admin. Code ch. PSC 128. ¶17 Shortly after Wis. Stat. § 196.378(4g)(b) was enacted, the Public Service Commission appointed the members of the Wind Siting Council. The Wind Siting Council was created by the legislature to provide research and advice to the Public Service Commission on the regulation of wind energy systems.10 9 See also Wis. Stat. § 66.0401(1m) ("No political subdivision may place any restriction . . . on the installation or use of a wind energy system that is more restrictive than the rules promulgated by the [Public Service Commission] under s. 196.378(4g)(b)."). 10 Wis. Stat. § 15.797(1)(b) ("There is created in the public service commission a wind siting council that consists of . . . members appointed by the public service commission for 3-year terms . . . ."). 6 No. ¶18 Siting Between March 29, 2010, and August 4, 2010, the Wind Council political met 20 subdivision energy systems. Council 2013AP1407 spent considering should to the permitted be discuss to restrictions impose on a wind At three of these meetings, the Wind Siting all the times or impact a substantial of wind portion energy of systems its on time property values. ¶19 there is The Wind no causal Siting Council relationship ultimately between the concluded siting turbines and a measurable change in property values. that of wind The Wind Siting Council set forth this conclusion (along with various other findings and recommendations) in its final recommendations to the Public Service Commission dated August 9, 2010. ¶20 In developing the wind energy rules, the Public Service Commission considered the Wind Siting Council's findings and recommendations in conjunction with information gathered from various other sources, including: • Wind-siting regulations and guidelines from a variety of states, including those immediately adjacent to Wisconsin; • A wide variety of local ordinances agreements from throughout the state; • Various white papers and best practices; • Papers from a conference on wind-siting effects; • Commission decisions; • Environmental impact statements energy projects in Wisconsin; experience and 7 precedent and in prepared community wind-siting for wind No. 2013AP1407 • Technical and scientific research and writing on wind siting; • Presentations issues; • Research by non-profit organizations and educational institutions on wind siting; • Expert testimony on wind-siting issues; • Other states' siting; • Advice from consulting professionals health experience in Wisconsin; • Court cases on wind-siting issues; • Joint development agreements between developers and political subdivisions; • Lease agreements for wind energy developments; • Complaint resolution documentation complaints about wind energy projects; • The Public Service Commission's noise protocols, stray voltage protocols, and filing requirements; • Federal regulations and Federal Aviation Administration processes, standards, and provisions; • Other state agencies' processes subdivision decision-making; and • Research, writing, and presentations by the federal government and national energy labs on wind-siting issues. ¶21 On May 17, and lectures investigations 2010, the given and Public on wind-siting precedent on wind with public wind energy from measurement application regarding Service past political Commission submitted the first draft of its proposed wind energy rules to 8 No. the Legislative reviewing the staff.11 Council Public Service On June Commission's 14, 2013AP1407 2010, after proposal, the Legislative Council submitted a report to the Public Service Commission suggesting specific changes to the rules. Service Commission incorporated many of the The Public Legislative Council's suggestions. ¶22 The Public Service Commission then held three public hearings around the state on its proposed wind energy rules: one in Fond du Lac on June 28, 2010; one in Tomah on June 29, 2010; and one in Madison on June 30, 2010. Written comments from the public were accepted until noon on July 7, 2010. ¶23 On August 31, 2010, pursuant to Wis. Stat. § 227.19, which provides for legislative review of proposed rules, the Public Service Commission submitted its proposed wind energy rules to the legislature. ¶24 The proposed rules were accompanied by a report to the legislature, as required by Wis. Stat. § 227.19(2).12 11 See Wis. Stat. § 227.15 ("Prior to a public hearing on a proposed rule . . . an agency shall submit the proposed rule to the legislative council staff for review."). See also Wis. Stat. § 13.91 (creating a nonpartisan bureau entitled "Legislative Council Staff" and setting forth its duty to review proposed administrative rules). 12 Wisconsin Stat. § 227.19(2) provides that "[a]n agency shall submit a notice to the chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). . . ." (continued) 9 No. ¶25 2013AP1407 The Public Service Commission did not submit a housing impact report. The Public Service Commission's report to the legislature did, however, comment on the likely effect of the proposed rules on property values.13 The report states as follows: Comments submitted by members of the public and government officials [c]ite studies, report individual experiences, and express fears that large wind energy systems have a negative impact on property values. . . . The property value impacts described included not being able to get a real estate company to list a property, a greatly reduced number of interested buyers, an increased length of time required to sell a property, and offers well below the appraised value of the property. . . . Existing property value studies contain insufficient data to quantify property value impacts to properties one-half mile and closer to turbines (emphasis added). Subsection (3)(g) lists numerous matters to be included in the report an agency submits to the legislature with a proposed rule, including "[t]he report of the department of commerce, as required by s. 227.115, if a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state." See note 4, supra. 13 See Wis. Stat. § 227.115(3)(a) (explaining that housing impact reports shall contain information about the effect of a proposed agency rule on housing in this state, including the "policies, strategies and recommendations of the state housing strategy plan," the "cost of constructing, rehabilitating, improving or maintaining single family or multifamily dwellings, the "purchase price of housing," the "cost and availability of financing to purchase or develop housing," and "housing costs," as defined in Wis. Stat. § 560.9801(3)(a) and (b)). The state housing strategy plan, a comprehensive five-year housing strategy plan, is governed by Wis. Stat. § 560.9802. The plan is submitted to the governor, the legislature, and the federal Department of Housing and Urban Development. 10 No. ¶26 2013AP1407 The proposed wind energy rules were then subject to a lengthy legislative review process.14 ¶27 and The Rail Senate Committee considered the on Commerce, proposed wind Utilities, energy Committee hearing held on October 13, 2010. lobbyists and members of the public the Wisconsin Realtors Association and rules at a At the hearing, offered suggested changes to the proposed rules. Energy criticism and Representatives from the Wisconsin Towns Association, two of the plaintiffs in the present case, were among those who shared their perspectives with the Senate Committee. ¶28 Based on its review of the proposed rules and the testimony presented, the Senate Committee voted to return the proposed rules to the Public Service Commission for further consideration and potential modification. ¶29 In a letter to the Public Service Commission dated November 30, 2010, Senator Jon Erpenbach, a member of the Senate Committee, "share[d] some perspective as to why" the proposed rules were being returned to the Public Service Commission. The letter summarizes the concerns raised by various parties at the Senate Committee hearing, including the concerns raised by the Wisconsin Realtors Association. The Association letter then 14 and states: the "I Wisconsin Towns think above the See Wis. Stat. § 227.19 (governing legislative review of proposed administrative rules). 11 No. outline gives the [Public Service] Commission a 2013AP1407 number of particular issues to re-examine within the rule[s]." ¶30 to file Senator Erpenbach's letter is silent about the failure a housing impact report and says nothing about the effect of the proposed wind energy rules on property values or on housing generally. ¶31 In response to the legislature's concerns, the Public Service Commission modified the proposed rules. The rules were resubmitted to the legislature on December 9, 2010. ¶32 On February 28, 2011, after the legislature's review period expired, the Public Service Commission promulgated its wind energy rules by publication in the Wisconsin Administrative Register. The rules, codified as Wis. Admin. Code ch. PSC 128, were to take effect the next day. ¶33 On the first day the rules became effective (March 1, 2011), the Joint Committee for Review of Administrative Rules suspended application of the rules pursuant to Wis. Stat. § 227.26(2)(d).15 ¶34 Suspension of a rule is temporary unless the rule is repealed.16 Wisconsin Admin. Code ch. PSC 128 was not repealed. Accordingly, Wis. Admin. Code ch. PSC 128 took effect on March 15 Wisconsin Stat. § 227.26(2)(d), titled "Temporary suspension of rules," provides that the Joint Committee for Review of Administrative Rules "may suspend any rule by a majority vote of a quorum of the committee. . . ." 16 See Wis. Stat. § 227.26(2)(i) (governing the repeal of a suspended rule). 12 No. 16, 2012. had 2013AP1407 Nearly three years had elapsed since the legislature initially directed the Public Service Commission to promulgate rules governing wind energy systems. ¶35 On June 6, 2012, WRA filed a lawsuit in the circuit court (the subject of this review), seeking a declaration under Wis. Stat. § 227.40(4)(a) that Wis. Admin. Code ch. PSC 128 is invalid because it was promulgated without complying with statutory rule-making procedures ¶36 motions Both for WRA summary and the Public judgment. motions on April 29, 2013. The Service circuit Commission court filed heard the At the conclusion of the hearing, the circuit court granted the Public Service Commission's motion for summary judgment, stating: I'm satisfied, when you look at the exact wording of the rule of 227.015 [sic], "If a proposed rule directly or substantially affects the development, construction costs, or availability of housing in the State," and it goes on, I'm satisfied that these wind siting rules——wind turbine siting rules do not and that there was no requirement to have a report. ¶37 In an unpublished decision, the court affirmed the circuit court's summary judgment ruling. of appeals The court of appeals reasoned as follows: Wisconsin Stat. § 227.115(2) requires a housing impact report only when a proposed rule "directly or substantially affects the development, construction, cost, or availability of housing in this state[.]" . . . Although neither the [Public Service] Commission nor the wind siting council explicitly addressed § 227.115(2), both entities clearly found that wind energy systems do not substantially affect property values. Based on that finding, the [Public Service] Commission could reasonably conclude its 13 No. 2013AP1407 proposed rules . . . would not directly or substantially affect the development, construction, cost, or availability of housing in Wisconsin. . . . . We must . . . presume that [Wis. Admin. Code ch.] PSC 128 was duly promulgated and that the [Public Service Commission] complied with Wis. Stat. § 227.115(2). In other words, we must presume no housing impact report was required . . . .17 II ¶38 We review the summary judgment in favor of the Public Service Commission using the same standards and methods applied by the circuit court.18 Under Wis. Stat. § 802.08(2), a moving party is entitled to summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ¶39 facts. In the instant case, the parties do not dispute the The instant case raises only a question of law, namely whether the wind energy rules were promulgated by the Public Service Commission without compliance with statutory rule-making procedures.19 More specifically, the question is whether under 17 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, unpublished slip op., ¶¶12-13 (Wis. Ct. App. Mar. 25, 2014). 18 Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶15, 322 Wis. 2d 21, 777 N.W.2d 67. 19 See Wis. Stat. § 227.40(4)(a) (providing that the court shall declare an administrative rule invalid if it finds that (1) the rule violates constitutional provisions; (2) the rule exceeds the statutory authority of the agency; or (3) the rule was promulgated without compliance with statutory rule-making procedures). 14 No. 2013AP1407 Wis. Stat. § 227.115(2), the Department of Commerce was required as a matter of law to prepare a housing impact report before Wis. Admin. Code ch. PSC 128 was submitted to the Legislative Council staff interpretation for and review. As application of WRA statutes acknowledges, ordinarily the present questions of law this court decides independently of the circuit court and the court of appeals, but benefitting from their analyses.20 III ¶40 Before addressing whether a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128, we set forth the statutory framework within which this dispute arises. ¶41 The instant case involves the 2009-10 version of the Wisconsin Statutes. We caution that the statutory landscape of agency rule-making has since changed. See 2011 Wis. Act 21. One commentator has summarized these changes as follows: 2011 Wisconsin Act 21 significantly changes how administrative rules are promulgated. Among other things, it narrows state agencies' rule-making authority, gives the governor new powers to approve or prevent the adoption of rules, expands the economicimpact-analysis requirement to all agencies, and 20 Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671 N.W.2d 279. 15 No. 2013AP1407 expands venue in declaratory judgment actions to all counties.21 ¶42 None of the changes enacted in 2011 are at issue in the instant case. Thus, we turn to the 2009-10 statutes that govern the present dispute. ¶43 directs We previously set forth the statutory provision that the Public Service Commission to promulgate rules specifying the restrictions a political subdivision may impose on the installation or use of a wind energy system. See Wis. Stat. § 196.378(4g)(b), set forth in full at ¶15, above. The Public Service Commission adopted Wis. Admin. Code ch. PSC 128, the wind energy rules at issue, pursuant to this statutory authority. ¶44 Commission The and promulgation judicial of a review rule of a by rule the Public promulgated Service by the Public Service Commission are both governed by Chapter 227 of the Wisconsin Review"). Statutes (titled exclusive Procedure and Several statutory provisions within this chapter are relevant to the instant case. ¶45 "Administrative Wisconsin method for Stat. We set them forth in turn. § 227.40(1) judicial review of provides the that validity the of an 21 Ronald Sklansky, Changing the Rules on Rulemaking, Wis. Lawyer, Aug. 2011, at 10, available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/wis consin-lawyer.aspx?Volume=84&Issue=8. For a challenge to 2011 Wis. Act 21, see Coyne v. Walker, 2015 WI App 21, 361 Wis. 2d 225, ___ N.W.2d ___ (petition for review filed Mar. 20, 2015). 16 No. 2013AP1407 agency rule is a declaratory judgment action challenging the rule filed in the circuit court. The text of Wis. Stat. § 227.40(1) is as follows: "[T]he exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court . . . ."22 ¶46 WRA sought declaratory relief in the instant case pursuant to this statutory provision. ¶47 is When a declaratory judgment action challenging a rule filed, Wis. Stat. § 227.40(4)(a) governs circumstances under which a court grants relief. the limited Under Wis. Stat. § 227.40(4)(a), a court shall declare a challenged rule invalid if it finds that (1) the rule violates constitutional provisions; (2) the rule exceeds the statutory authority of the agency; or (3) the rule was promulgated without compliance with statutory rule-making procedures. ¶48 Wisconsin follows: "In any Stat. § 227.40(4)(a) proceeding pursuant states to this in full section as for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority 22 of the agency or was See also Wis. Stat. § 227.01(13) (defining "rule" for purposes of Wis. Stat. ch. 227 as "a regulation, standard, statement of policy or general order of general application which has the effect of law and which is issued by an agency to implement, interpret or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency"). 17 No. promulgated without compliance with statutory 2013AP1407 rule-making procedures." ¶49 violates authority WRA does not assert that Wis. Admin. Code ch. PSC 128 constitutional of the provisions Public Service or exceeds the Commission.23 statutory Instead, WRA describes its challenge to Wis. Admin. Code ch. PSC 128 as a "facial challenge to the rule[s]," arguing only that the rules were promulgated without compliance with statutory rule-making procedures. ¶50 Thus, we continue by setting forth the statutory rule- making procedures that are relevant to the instant case. ¶51 Wisconsin Stat. § 227.20(1) requires an agency promulgating a rule to file a certified copy of the rule it is promulgating with statute provides: the Legislative Reference Bureau.24 The "An agency shall file a certified copy of each rule it promulgates with the legislative reference bureau. 23 The Public Service Commission clearly had statutory authority to promulgate Wis. Admin. Code ch. PSC 128. Several provisions within Wis. Stat. ch. 196 (titled "Regulation of Public Utilities") authorize the Public Service Commission to promulgate rules governing public utilities. The provision relevant here, which we discussed previously, is Wis. Stat. § 196.378(4g)(b) (directing the Public Service Commission to promulgate rules governing wind energy systems). 24 The Legislative Reference Bureau is a nonpartisan bureau established by the legislature to provide "reference services" to the legislature, other government officials, and the public. See Wis. Stat. § 13.92. 18 No. No rule is valid until the certified copy 2013AP1407 has been filed. . . ."25 ¶52 The Public Service Commission filed a certified copy of the rules at issue with the Legislative Reference Bureau. ¶53 Filing a certified copy of a rule with the Legislative Reference Bureau gives rise to a legislatively enacted presumption that the process by which the rules were promulgated was proper. More specifically, Wis. Stat. § 227.20(3) creates a presumption that a rule filed with the Legislative Reference Bureau was "duly promulgated" and that "all of the rule-making procedures required by [Chapter 227] were complied with." ¶54 The full text of Wis. Stat. § 227.20(3) is as follows: (3) Filing a certified copy of a rule with legislative reference bureau creates presumption of all of the following: the a (a) (b) That the rule was filed and made available for public inspection on the date and time endorsed on it. (c) That all of the rule-making procedures required by this chapter were complied with. (d) ¶55 That the rule was duly promulgated by the agency. That the text of the certified copy of the rule is the text as promulgated by the agency. Chapter 227 of the Wisconsin Statutes does not discuss this presumption further. 25 Wis. Stat. § 227.20(1). 19 No. ¶56 2013AP1407 Finally, we return to the statute with which we began: Wis. Stat. § 227.115(2), which governs housing impact reports. The full text of Wis. Stat. § 227.115(2) is as follows: (2) Report on rules affecting housing. If a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state, the department [of administration] shall prepare a report on the proposed rule before it is submitted to the legislative council staff under s. 227.15. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department. ¶57 These statutes provide the foundation for our analysis of the legal issue presented. IV ¶58 whether As the compliance whether previously wind with the explained, energy statutory rules were rules the were presented promulgated rule-making promulgated issue procedures, without a is without that housing is, impact report in violation of the law. ¶59 We decide this issue as follows. ¶60 First, legislatively were duly procedures we enacted explain presumption promulgated were that complied and that that with, because and all the there wind energy statutory because WRA is is a rules rule-making the party challenging the validity of the rules, WRA bears the burden of proof. WRA must prove that a housing impact report was required 20 No. 2013AP1407 as a matter of law for the promulgation of Wis. Admin. Code ch. PSC 128. ¶61 Second, we conclude that WRA has not fulfilled its burden of proving that as a matter of law, Wis. Admin. Code ch. PSC 128 was promulgated without compliance with statutory rulemaking procedures. ¶62 Third, and finally, we explain that this court's respect for the doctrine of separation of powers and the role of the legislature counsels against our invalidating a chapter of agency rules that survived the statutorily prescribed process of legislative review. ¶63 For these reasons, we uphold Wis. Admin. Code ch. PSC 128 against WRA's challenge and declare on the basis of the record before us that the rules at issue were not promulgated without compliance with statutory rule-making procedures. A ¶64 Because WRA contests what showing it must make in the instant case, we begin by explaining that WRA has the burden to prove that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. ¶65 certified The Public Service Commission stresses that it filed a copy of Wis. Admin. Code ch. PSC 128 with the Legislative Reference Bureau and therefore has the benefit of the statutory presumption that it complied with all statutory rule-making procedures. ¶66 The text of Wis. Stat. § 227.20(3) directs us to presume that the rule was duly promulgated by the agency and 21 No. 2013AP1407 that all statutory rule-making procedures have been followed, including impact those pertaining report. The to statute the preparation apparently of creates a a housing rebuttable presumption, similar in operation to the generally recognized rebuttable presumption of the constitutionality of a statute; a court is to presume that the agency that promulgated the rule followed the statute regarding housing reports, challenging the rule may rebut that presumption. also requires courts to respect the but a party The statute legislature's role in reviewing and approving agency rules by presuming the validity of rules that have survived the legislature's scrutiny. ¶67 the wind In any event, as the party challenging the validity of energy rules, WRA invalidity of the rules.26 has the burden of proving the Thus, even without the statutory presumption, WRA has the burden to prove that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. B ¶68 forth WRA attempts to meet its burden of proof by setting unconvincing interpretations 26 of Wis. Stat. § 227.115(2) "The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion." 2 Kenneth S. Brown, McCormick on Evidence § 337, at 648 (7th ed. 2013). See also Loeb v. Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965); Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 1997). 22 No. (governing housing impact reports) and 2013AP1407 Wis. Stat. § 196.378(4g)(b) (directing the legislature to promulgate wind energy rules). ¶69 WRA first contends that a housing impact report is required under Wis. Stat. § 227.115(2) whenever a proposed rule relates to housing and that rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b) necessarily relate to housing. WRA further argues that under Wis. Stat. § 227.115(5), the Public Service Commission was required to, but did not, make an explicit determination of whether a housing impact report was required. ¶70 We examine these arguments in turn. ¶71 WRA asserts that in the context of Wis. Stat. § 227.115(2), which requires the preparation of a housing impact report for proposed rules that directly or substantially affect the development, construction, cost, or availability of housing in this state, "the word 'affect' should be interpreted to mean 'concern' or 'deal with.'"27 ¶72 WRA does not attempt other words in the statute. phrase "directly or to define the meaning of the WRA does not explain what the substantially" means, what it means to affect the "cost" of housing, or what it means to affect housing "in this state." 27 WRA's brief at 36. 23 No. ¶73 WRA implies, however, that the housing impact report requirement mandates 2013AP1407 is the far-reaching preparation and of that Wis. a housing Stat. impact § 227.115(2) report for all proposed rules that may in any way affect any kind of housing in the state. ¶74 With this expansive interpretation of Wis. Stat. § 227.115(2) in mind, WRA next contends that any and all rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b), which directs the Public Service Commission to promulgate wind energy rules, require a housing impact report.28 WRA reasons that rules promulgated § 196.378(4g)(b) pursuant to Wis. Stat. will necessarily "concern" or "deal with" housing because such rules are intended to provide reasonable protection from the health effects of wind turbines, because "improper [wind turbine] setback[s] could unreasonably affect the health of those living near wind turbines,"29 and because such unreasonable health effects could in turn affect property values.30 ¶75 WRA also reasons that rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b) will necessarily "concern" or "deal with" housing because such rules limit the ability of local 28 "On its face, Wis. Stat. § 196.378(4g)(b) directed the PSC to create a rule that the Legislature expected would 'affect housing' in this state." WRA's brief at 18. 29 WRA's brief at 15. 30 "Logically, if living in houses located too close to wind turbines would be unhealthy, that knowledge would affect the desirability and value of such homes." WRA's brief at 38. 24 No. 2013AP1407 governmental units to regulate the installation and use of wind turbines in housing. their Thus, established communities in WRA's pursuant to for view, Wis. the the purpose of protecting content of the Stat. rules § 196.378(4g)(b) is irrelevant; a housing impact report is required no matter what the rules provide. ¶76 Based on WRA's interpretation of these two statutes, WRA concludes that all wind energy rules have the potential to affect property values and, consequently, that a housing impact report was required for the specific wind energy rules at issue. ¶77 WRA's reasoning is not convincing. ¶78 First, WRA seems to view Wis. Stat. § 227.115(2) as requiring a housing impact report whenever a proposed rule in any way relates to housing. the statutory text. This reading of the statute ignores The statute uses the phrase "directly or substantially," which demonstrates that not just any effect will trigger the housing impact report requirement. WRA reads this phrase out of the statute. ¶79 The court of appeals explained that "a housing impact report is not required simply because the subject matter of a proposed rule relates to housing, or because tangentially affects housing in some way."31 ordinary meaning of the phrase "directly the rule We agree. The or substantially affects" is not "affects in any way" or "relates to in some 31 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, unpublished slip op., ¶14 (Wis. Ct. App. Mar. 25, 2014). 25 No. way," as WRA seems to believe. 2013AP1407 Wisconsin Stat. § 227.115(2) requires something more. ¶80 The drafting supports our interpretation requirement. or history of of Wis. the Stat. housing § 227.115(2) impact report During the drafting process, the words "directly indirectly" substantially." were replaced with the words "directly or See 1995 A.B. 384, Assembly Substitute Am. 1. We agree with the court of appeals that this modification of the bill's language suggests that the legislature did not intend for a housing impact report to be prepared every time a proposed rule has some indirect or incidental effect on housing. ¶81 WRA's interpretation of Wis. Stat. § 196.378(4g)(b), which directs the Public Service Commission to promulgate wind energy rules, is equally implausible. Nothing in Wis. Stat. § 196.378(4g)(b) implicitly governing wind substantially availability states energy affect of explicitly systems the housing or will development, in this necessarily that directly construction, state, such rules that or cost, a or housing impact report will be required. ¶82 Service Wisconsin Stat. § 196.378(4g)(b) instructs the Public Commission protection from energy systems." any to develop health rules that "provide effects . . . associated (Emphasis added.) reasonable with wind There is no mention in Wis. Stat. § 196.378(4g)(b) of protecting housing generally or of protecting property values specifically. See § 196.378(4g)(b), set forth in full at ¶15, above. 26 Wis. Stat. No. ¶83 A conclusion review that § 196.378(4g)(b) of Wis. rules do Stat. § 13.099(2) promulgated necessarily not pursuant require 2013AP1407 supports to our Stat. housing a Wis. impact report. ¶84 Wisconsin Stat. § 13.099(2) requires a housing impact report for any bill introduced in the legislature that "directly or substantially affects the development, construction, cost or availability of housing in this state . . . ." Thus, Wis. Stat. § 13.099(2) bills creates similar housing impact report requirement for the to a housing impact report requirement for proposed rules. ¶85 When the legislature introduced the bill that was subsequently enacted as Wis. Stat. § 196.378(4g)(b), it did not request a housing impact report and no housing impact report was prepared. The strong, legislature did not unrebutted consider implication introduction of is the that the bill that became Wis. Stat. § 196.378(4g)(b) (or the wind energy rules that would be promulgated thereunder) as "directly or substantially affect[ing] the development, construction, cost or availability of housing in this state." ¶86 that There is, in sum, no foundation for WRA's assertion the legislature promulgated pursuant "expected" to Wis. the Stat. wind energy rules § 196.378(4g)(b) to necessarily require a housing impact report under Wis. Stat. § 227.115(2). WRA's interpretations of Wis. Stat. §§ 227.115(2) and 196.378(4g)(b) are not cogent. 27 No. ¶87 rules 2013AP1407 We turn next to WRA's argument that the wind energy were statutory Commission necessarily rule-making was promulgated procedures required to, without because but did compliance the not, Public make an with Service explicit determination of whether a housing impact report was required. ¶88 time According to WRA, the record shows that during the the Public Service Commission was engaged in the promulgation of Wis. Admin. Code ch. PSC 128, neither the Public Service Commission discussed or necessary. voted itself upon nor the whether a Wind Siting housing Council impact report ever was WRA apparently believes that an explicit, on-the- record determination by the Public Service Commission regarding whether a housing impact report is needed was required before the wind energy rules could be promulgated. ¶89 WRA does not, however, point to any statutory provision mandating such an explicit determination by the Public Service Commission or any other entity, and we find none. We decline to read a procedural requirement into the statutes that the legislature opted not to impose.32 ¶90 The absence determination regarding of an whether a explicit, housing on-the-record impact report is required is therefore not dispositive and it does not persuade 32 "We should not read into the statute language that the legislature did not put in." State v. Matasek, 2014 WI 27, ¶20, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635). 28 No. us that the wind energy rules were 2013AP1407 promulgated without compliance with statutory rule-making procedures. ¶91 In sum, WRA's interpretations of Wis. Stat. §§ 227.115(2) and 196.378(4g)(b) are unconvincing, and we are not persuaded that the Public Service Commission was required to make an on-the-record determination regarding the necessity of a housing impact report. WRA has not fulfilled its burden of proving that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. C ¶92 We turn to one final consideration that weighs against our granting WRA relief in the present case. ¶93 128 was Although WRA recognizes that Wis. Admin. Code ch. PSC promulgated after an active and lengthy legislative review process, WRA nevertheless asks this court to declare that the failure to submit a housing impact report renders Wis. Admin. Code ch. PSC 128 invalid. ¶94 According to WRA, the Public Service Commission "usurped the Legislature's power when it decided that it had adequately protected the public [through Wis. Admin. Code ch. PSC 128] and that no second opinion [in the form of a housing impact report] [wa]s therefore required."33 ¶95 Like WRA, we are concerned about usurpation of the legislative function. 33 We conclude, however, that if we granted WRA's brief at 15. 29 No. WRA its requested relief in the instant case, 2013AP1407 we would be usurping the legislative function by striking down rules that survived the legislature's scrutiny. ¶96 matter. The separation of powers doctrine informs us in this "The Wisconsin constitution creates three separate co- ordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another."34 ¶97 Chapter 227 of the Wisconsin Statutes governs agency rule-making and legislative review of agency rules, among other things. These legislature oversight itself of expansive statutes to agency comprise govern the rule-making. legislative review of a system devised Chapter rules in and for role 227 both the provides legislature's by before their promulgation35 and after their promulgation.36 ¶98 Pursuant to these statutes, the legislature has the opportunity 34 State to v. request modifications Holmes, 106 to Wis. 2d 31, proposed 42, rules,37 315 to N.W.2d 703 (1982). 35 See Wis. Promulgation"). Stat. § 227.19 ("Legislative Review Prior to 36 See Wis. Stat. § 227.26 ("Legislative Review After Promulgation; Joint Committee for Review of Administrative Rules"). 37 See Wis. Stat. § 227.19(4)(b); Wis. Stat. § 227.19(4)(d); Wis. Stat. § 227.19(5)(b). 30 No. prevent the promulgation suspend rules that of have rules,38 proposed been to promulgated,39 2013AP1407 temporarily and to repeal promulgated rules altogether.40 ¶99 In legislative light of the statutes' review of rules and providing limited for judicial expansive review of rules, it is incumbent upon the court to exercise both deference and restraint in the present case. ¶100 The legislature did not merely passively permit the promulgation of Wis. Admin. Code ch. PSC 128. On the contrary, the legislature held a hearing on Wis. Admin. Code ch. PSC 128 prior to its promulgation and then sent the rules back to the Public Service Commission for further consideration. ¶101 WRA had an opportunity to register its objections to the rules before the legislature. The rules were modified in response to the legislature's concerns, which encompassed WRA's concerns. ¶102 Even after its promulgation, Wis. Admin. Code ch. PSC 128 was temporarily suspended for yet another round of opportunity to legislative review. ¶103 In sum, the legislature had ample express reservations about the proposed wind energy rules, to request changes to the proposed rules, to prevent promulgation 38 Wis. Stat. § 227.19(5)(e); Wis. Stat. § 227.19(5)(f). 39 Wis. Stat. § 227.26(2)(d). 40 Wis. Stat. § 227.26(2)(f); Wis. Stat. § 227.26(2)(i). 31 No. 2013AP1407 of the proposed rules, and to suspend and even repeal the rules after they were promulgated. ¶104 The review, the fact is, legislature after a allowed lengthy the and rules active set period forth in of Wis. Admin. Code ch. PSC 128 to go into effect. ¶105 The Public Service Commission's wind energy rules survived the legislative review process and now have "the force and effect of law in Wisconsin."41 ¶106 In the instant case, the court's role is limited. We may determine only whether the rules were promulgated without compliance with statutory rule-making procedures. WRA has failed to meet its burden of proving non-compliance. ¶107 Nonetheless, our opinion in the instant case should not be read to imply that WRA's frustration with the process by which Wis. Admin. Code ch. PSC 128 was promulgated is entirely unwarranted. ¶108 WRA stated at oral argument that it greatly values Wis. Stat. § 227.115(2). In WRA's view, the second opinion a housing impact report provides to the legislature constitutes a necessary check in the process of promulgating a rule argument that that affects housing. ¶109 WRA also stated at oral to its knowledge, no housing impact report has ever been requested or 41 See State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194 (1983). 32 No. produced under Wis. Stat. § 227.115(2).42 2013AP1407 Thus, WRA believes a critical step in the process of promulgating a rule that affects housing has been routinely ignored and has been circumvented in the instant case. ¶110 WRA's concerns, while understandable, do not persuade us to grant it relief. ¶111 We conclude that WRA has not demonstrated that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. The texts of the governing statutes and the wind energy rules do not demonstrate as a matter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in this state. ¶112 We further conclude that invalidating Wis. Admin. Code ch. PSC 128 under the circumstances presented in the instant case would infringe on the role of the legislature, which we decline to do. ¶113 Accordingly, WRA's challenge to Wis. Admin. Code ch. PSC 128 fails. By the Court.—The decision of the court of appeals is affirmed. 42 We, too, have been unable to confirm that any housing impact report has ever been prepared pursuant to Wis. Stat. § 227.115(2). 33 No. ¶114 PATIENCE (dissenting). Builders Realtors) Wisconsin Sr. ROGGENSACK, C.J. Association, Wisconsin DRAKE Association, Morehouse, 2013AP1407.pdr and Realtors Wisconsin Ervin challenge the E. Public Towns Selk Association, (hereinafter Service Jon E. Wisconsin Commission's (the Commission) promulgation of Wis. Admin. Code ch. PSC 128 because the Commission did not follow the required rule-making procedure set out in Wis. Stat. § 227.115(2) (2009-10).1 I conclude that the Commission was obligated, as a matter of law, to obtain a § 227.115(2) housing report because ch. PSC 128 directly affects housing. report; The Commission failed to obtain a § 227.115(2) housing therefore, § 227.40(4)(a). ch. PSC 128 is invalid. Wis. Stat. Accordingly, I respectfully dissent from the majority opinion. I. BACKGROUND ¶115 This case reaches us on competing motions for summary judgment in regard to whether Wis. Admin. Code ch. PSC 128 was lawfully promulgated. systems. Chapter PSC 128 regulates wind energy In relation to housing, it establishes the following: maximum setbacks of wind turbines from dwellings; permissible wind turbine noise levels, as measured at nearby dwellings; the number of hours per year during which dwellings can be subjected to shadow flicker cast by wind turbines. ¶116 The legislature was concerned that wind turbines may affect both the health of Wisconsin citizens and housing. 1 Wis. All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 1 No. Stat. § 196.378(4g)(e); Wis. Stat. § 227.115(2). 2013AP1407.pdr However, the legislature did not want each local unit of government imposing its own regulations, development of legislature directed would wind reasonably effects and which energy the protect reduced could in people to in values impede the Accordingly, Wisconsin. Commission property unnecessarily the promulgate rules their homes from that could that health result from nearby wind turbines, while at the same time creating a uniform system of regulations for wind energy systems throughout the state. § 196.378(4g)(b). ¶117 In promulgating Wis. Admin. Code ch. PSC 128, the Commission was required to obtain a comprehensive housing report from the Department of Commerce2 if its proposed rule "directly or substantially affects the development, construction, cost, or availability § 227.115(2). "before [the of housing in this state." Wis. Stat. The required housing report was to be prepared proposed rule] is council staff under s. 227.15." submitted to the legislative Id. ¶118 The record and arguments of the parties reveal that the Commission never requested or obtained the required housing report from the Department. Apparently, the Commission never considered its obligations under Wis. Stat. § 227.115(2) because § 227.115 is not listed in the 2 Commission's "Plain Language At the time Wis. Admin. Code ch. PSC 128 was created, the Department of Commerce was to have prepared the housing report. Wis. Stat. § 227.115(1)(a). The current version of § 227.115(1)(a) (2013-14) requires that the report be prepared by the Department of Administration. 2 No. 2013AP1407.pdr Analysis" that it submitted to the Legislature and in which the Commission mentioned other statutes. II. DISCUSSION ¶119 The majority opinion employs three methods by which it permits the Commission to ignore the command of the legislature. First, it misunderstands Wisconsin therefore, never addresses it. Realtors' argument, and Second, without deciding what Wis. Stat. § 227.115(2) means, the majority opinion chooses not to apply § 227.115(2) to Wis. Admin. Code ch. PSC 128.3 In so doing, it ignores the policy choice of the legislature, which requires a housing substantially report affects if a housing. Commission Third, the rule directly majority or opinion employs Wis. Stat. § 227.20(3) to create a presumption that the Commission followed all applicable rule-making procedures based on the Commission's filing of a certified copy of ch. PSC 128 with the Legislative Reference Bureau.4 A. Standard of Review ¶120 We review summary judgment granted to the Commission by the circuit court and affirmed by the court of appeals. review independently, as a matter judgment was properly granted. of law, whether We summary Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787 N.W.2d 6. Our review centers on interpretation and application of statutes. Statutory interpretation 3 application Majority op., ¶7. 4 and Id., ¶¶66-67. 3 present questions of No. 2013AP1407.pdr law for our independent review; however, we benefit from the reasoning of other courts' decisions. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. This controversy application of also involves administrative the rules. interpretation These questions of law for our independent review. too and present Brown v. Brown, 177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993). B. 1. Rule Promulgation "Directly affects" ¶121 All parties agree that if Wis. Admin. Code ch. PSC 128 directly affects housing, the Commission was required to obtain a housing report from the Department before it filed the rule with the Legislative Reference Bureau. centers on the § 227.115(2). meaning of "directly The parties' dispute affects" in Wis. Stat. This issue is clouded in the majority opinion because it never bothers to interpret § 227.115(2) and tell the reader what "directly affects" means. majority opinion's repeated It is also clouded by the mischaracterization of Wisconsin Realtors' argument.5 ¶122 Determination of the meaning of "directly affects" is informed by the meaning of Wis. Stat. § 196.378(4g)(b) because § 196.378(4g)(b) is the enabling 5 legislation for Wis. Admin. For example, the majority asserts, that Wisconsin Realtors "contends that a housing impact report is required under Wis. Stat. § 227.115(2) whenever a proposed rule relates to housing." Majority op., ¶69. That is not an accurate representation of Wisconsin Realtors' contention. Rather, Wisconsin Realtors contends that a housing report is required when a Commission's rule directly or substantially affects housing. 4 No. Code ch. PSC 128. 2013AP1407.pdr Therefore, the Commission was required to follow the legislative directives of § 196.378(4g)(b) when it promulgated ch. PSC 128. Wis. Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990) (explaining that on review "court[s] should identify the elements of the enabling statute and match the rule against those elements"). The meaning of Wis. Stat. § 227.115(2) also informs the controversy before us because of the proximity of wind turbines to housing. ¶123 I interpret Wis. Stat. § 196.378(4g)(b) and Wis. Stat. § 227.115(2) to ascertain their meaning. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶43, 271 Wis. 2d 633, 681 N.W.2d 110. Scope, context and purpose are relevant to a plain meaning analysis. Id., ¶48. I also note that "[a]n administrative agency has only those powers which are expressly conferred or can be fairly operates." implied from the statutes under which it Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993). ¶124 Wisconsin affect housing § 196.378(4g)(b), Commission's Stat. such they promulgation § 227.115(2) that, together establish of addresses Wis. with rules Wis. requirements Admin. Code that Stat. for ch. the PSC 128. Furthermore, because these statutes bear on the same subject matter, here, the promulgation of administrative rules that regulate wind turbines, they are construed in that context so that they are consistent with one another. 227 Wis. 2d 271, 279, 595 N.W.2d 686 (1999). 5 McDonough v. DWD, Accordingly, the No. Commission was required to have its exercised 2013AP1407.pdr rule-making authority within the framework established by these statutes. ¶125 I begin with the words chosen by the legislature in its enabling legislation. Wisconsin Stat. § 196.378(4g)(b) provides in relevant part: The commission shall . . . promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401(1m)(a) to (c). The subject matter of these rules shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules . . . may include . . . set-back distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than these rules. ¶126 The legislative grant of authority to the Commission in Wis. Stat. § 196.378(4g)(b) described the legislature's purpose and topics that the Commission was required to address when promulgating 196.378(4g)(b) Wis. plainly Admin. states Code that ch. the PSC rules 128. Section enacted "shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker." Section 196.378(4g)(b) also granted the Commission discretionary authority in other areas. ¶127 There are good reasons for the legislature's mandate that the turbines. Commission enact setback requirements for wind It is well known that wind turbines may be harmful to 6 No. 2013AP1407.pdr the health of those who live close to them and are sensitive to the noise and shadow flicker they produce. See Roy D. Jeffery, et al., Adverse Health Effects of Industrial Wind Turbines, 59 Canadian Family Physician 473 (2013); Jerry Punch & Richard James, Negative Health Effects of Noise from Industrial Wind Turbines: Some Background, http://www.hearinghealthmatters.org/hearingviews/2014/windturbine-health-problems-noise (last visited March 26, 2015). ¶128 Directly concerns, Wis. connected Admin. Code to legislatively § PSC 128.13 focused health establishes siting criteria for wind turbines in regard to setback distance and height requirements; Wis. Admin. Code § PSC 128.14 addresses noise criteria;6 Wis. Admin. Code § PSC 128.15 addresses shadow flicker.7 Accordingly, the Commission's application of Wis. Stat. § 196.378(4g)(b) is driven by wind turbines' effects on the health of people who live or work in proximity to wind turbines. 6 Wisconsin Admin. Code § PSC 128.14 provides in relevant part: "[A]n owner shall operate the wind energy system so that the noise attributable to the wind energy system does not exceed 50 dBA during daytime hours and 45 dBA during nighttime hours." § PSC 128.14(3)(a). The determination of noise level is made at "the outside wall nearest to the closest wind turbine." § PSC 128.14(4). 7 Wisconsin Admin. Code § PSC 128.15(1)(b) and (2) provides in relevant part: "An owner shall design the proposed wind energy system to minimize shadow flicker at a residence or occupied community building . . . [so it] does not cause more than 30 hours per year of shadow flicker." 7 No. 2013AP1407.pdr ¶129 Wisconsin Admin. Code § PSC 128.13(1)(a) provides for permissible setbacks, depending on the type of building that is nearby. The largest setback is 1,250 feet. The setback from wind turbines generally is measured as the distance from the wind turbine tower to the nearest point on the foundation of a residence or occupied community building. § PSC 128.13(1)(b). ¶130 The setbacks of Wis. Admin. Code § PSC 128.13 lessen the noise and shadow flicker impacts of wind turbines on residents and real estate that are as far away from the wind turbines without as § PSC 128.13(1)(a) consideration turbines could be of the placed provides. setbacks in the of Stated § PSC middle otherwise, 128.13, of wind residential communities with houses only a few feet away so long as no local ordinance regulated placement. ¶131 Because placement of Wis. wind Admin. turbines Code that ch. are PSC 128 inconsistent prevents with its provisions, ch. PSC 128 lessens the effects of wind turbines on the health of people who reside nearby. Chapter PSC 128 does so by subjecting the housing in which people live to less noise and less shadow flicker. and 128.15 directly Stated otherwise, §§ PSC 128.13, 128.14 affect the levels of noise and shadow flicker that wind turbines inflict on nearby housing. ¶132 The effect of wind turbines on the health of people living nearby was considered by the Wind Siting Council when ch. PSC 128 was enacted. Furthermore, Wis. Stat. § 196.378(4g)(e) 8 No. 2013AP1407.pdr requires periodic review of wind turbines' effects on health.8 Because wind turbines have the potential to affect the health of those who live nearby, wind turbines also will affect the market for those properties because some buyers will reject the properties because they believe that wind turbines will have a negative effect on their health. Turbine Syndrome: A Report on See, e.g., Nina Pierpont, Wind a Natural Experiment (2009) (available at http://www.windturbinesyndrome.com). ¶133 The legislature recognized that health effects associated with wind turbines may be connected to the distance between wind turbines and housing when it required that setbacks provide "reasonable protection from any health effects." Wis. Stat. wind § 196.378(4g)(b). As health effects caused by turbines also affect the real estate market, the legislature required the Commission to obtain a housing report while it was in the process of promulgating Wis. Admin. Code ch. PSC 128. Wisconsin Stat. § 227.115 specified the findings that the Department was required to make in assessing a proposed rule's effect on housing. Section 227.115(3) provides: (a) The report of the department shall contain information about the effect of the proposed rule on housing in this state, including information on the effect of the proposed rule on all of the following: 8 The Wind Siting Council is required to "survey the peerreviewed scientific research regarding the health impacts of wind energy systems." Wis. Stat. § 196.378(4g)(e); see Wisconsin Wind Siting Council, Wind Turbine Siting-Health Review and Wind Siting Policy Update, 3-4, 14 (2014). The Wind Siting Council addressed health concerns, not housing concerns. 9 No. 2013AP1407.pdr 1. The policies, strategies and recommendations of the state housing strategy plan. 2. The cost of constructing, rehabilitating, improving or maintaining single family or multifamily dwellings. 3. The purchase price of housing. 4. The cost and availability purchase or develop housing. of financing to 5. Housing costs, as defined in s. 560.9801(3)(a) and (b). (b) The report shall analyze the relative impact of the effects of the proposed rule on low– and moderate– income households. ¶134 The legislature required the Commission to request a housing report from the Department if a "proposed rule directly or substantially affects the development, construction, cost, or availability of housing" in Wisconsin. Wis. Stat. § 227.115(2). Section 227.115(2) requires the Commission to do so before the proposed rule is forwarded to the legislative council staff under Wis. Stat. § 227.15. ¶135 Wisconsin Stat. § 227.115(2)'s phrase, "directly or substantially affects," is not defined in § 227.115, nor has it been interpreted in prior cases. However, the phrase "directly affects" has been interpreted in other contexts. For example, Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶3, 352 Wis. 2d 576, classification assessment 843 N.W.2d of property because of 39, the concludes "directly that an assessor's affects" the property's classification's statutory percentages of assessment. relationship to State v. Long, 2009 WI 36, ¶51, 317 Wis. 2d 92, 765 N.W.2d 557, explains that proof of a 10 No. 2013AP1407.pdr prior conviction "directly affects" a liberty interest because such proof is relevant to the term of incarceration to which a defendant may be subjected. City of Appleton v. Town of Menasha, 142 Wis. 2d 870, 879, 419 N.W.2d 249 (1988), concludes that any illegal expenditure of public funds "directly affects" taxpayers because taxpayers suffer a pecuniary loss as a result. ¶136 In each decision, "directly affects" has been defined by a nexus between an act and the interest of a person that is influenced by the act. meaning of Accordingly, I conclude that the plain "directly affects" in Wis. Stat. includes an act that has a nexus to housing. § 227.115(2) That is, in order for a proposed rule to "directly affect" housing, there must be a nexus between the proposed rule and housing. ¶137 As I have explained, Wis. Admin. Code ch. PSC 128 has a nexus to housing due to the setbacks of § PSC 128.13, the decibel noise levels of § PSC 128.14 and the minimization of shadow flicker turbines' in effects § PSC on 128.15, nearby all of housing. which regulate otherwise, Stated wind the plain meaning of "directly affects" in Wis. Stat. § 227.115(2) includes those proposed rules that regulate wind turbine setbacks, noise levels and shadow flicker. ¶138 These Realtors' obvious contention nexuses from which 11 are it the core concluded of that Wisconsin a housing No. report was otherwise, required it is by of § 227.115(2).9 Stat. position the Wis. 2013AP1407.pdr Wisconsin Stated Realtors that § 227.115(2) does not require that a rule have a negative effect on housing before a housing report is required by § 227.115(2).10 Rather, the legislative threshold for requiring a housing report under § 227.115(2) is triggered whenever housing is "directly affected" by the terms Wisconsin Realtors. housing report of a proposed rule. I agree with The statute says nothing about obtaining a only when a rule negatively or inadequately affects housing. ¶139 Furthermore, Wis. Stat. § 196.378(4g)(b) and Wis. Stat. § 227.115(2) must be read together because they bear on the same subject matter, McDonough, 227 Wis. 2d at 279. the health effects of wind proposed administrative rules. When we do so, the nexus between turbines and housing becomes apparent. ¶140 Wisconsin Admin. Code §§ PSC 128.13, 128.14 and 128.15 directly affect noise levels and shadow flicker to which housing is subjected by the operation of wind turbines. as a matter of course that the effect of It follows then wind turbines on 9 The majority opinion repeatedly misstates Wisconsin Realtors' position. See majority op., e.g., ¶¶69-76. In so doing, the majority opinion sets up straw men that it can knock down. However, more importantly, this device permits the majority opinion to escape addressing Wisconsin Realtors' actual argument about why Wis. Admin. Code ch. PSC 128 directly affects housing. 10 If there was ever any doubt, Wisconsin Realtors' position in this regard was clearly stated at oral argument under questioning by the court. 12 No. housing is central to carrying out the 2013AP1407.pdr plain meaning of § 196.378(4g)(b), which required the Commission to draft rules that addressed otherwise, with wind housing is § 196.378(4g)(b) turbines' central because effects to it the is on health. Commission's due to living Stated compliance in nearby housing that the health of Wisconsin residents is most affected by wind turbines. Therefore, if the Commission's rules did not directly affect housing, those rules would have a limited impact on health, contrary to the enabling legislation for ch. PSC 128. ¶141 Both the court of appeals and the majority opinion misunderstand Wisconsin Realtors' argument. For example, the court of appeals said, To demonstrate that a housing impact report was required, [Wisconsin Realtors] must show that the setback, noise, and shadow flicker restrictions imposed by PSC 128 are so inadequate that the rules will directly or substantially affect the development, construction, cost, or availability of housing in Wisconsin. Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25, 2014). ¶142 However, no showing of inadequacy is required of Wisconsin Realtors under Wis. Stat. § 227.115(2) in order to demonstrate that Wis. Admin. Code ch. PSC 128 directly affects housing. chose for The plain meaning of the words that the legislature Wis. Stat. § 227.115(2) does not require that the rules the Commission proposed be "inadequate" in order for those rules to directly affect housing. 13 All that is required is a No. 2013AP1407.pdr nexus between the proposed rules and their effect on housing. It is beyond dispute that ch. PSC 128 has such a nexus. ¶143 Once required. that threshold is met, a housing report is It is the task of the Department, as it prepares the housing report, to assess whether the administrative rules were adequate or inadequate to protect housing. assessment process. and report was to be done during The Department's the rule-making Stated otherwise, the legislature gave the Department the task of assessing whether proposed rules are adequate to protect the housing of people who reside near wind turbines.11 The legislature did not give that task to persons whose health and property values are impacted by the proposed rule. That was a burden for government to shoulder, which the court of appeals12 and the majority opinion13 have mistakenly placed on those Wisconsin residents who live near wind turbines. 11 See supra note 2. 12 That the court of appeals added words to Wis. Stat. § 227.115(2) and thereby constructed a standard contrary to what the legislature mandated is confirmed by the court's conclusion that "[w]ithout presenting evidence that the restrictions imposed by PSC 128 are insufficient, [Wisconsin Realtors] cannot rebut the presumption that no housing impact report was required." Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25, 2014). 13 See majority op., ¶7. 14 No. 2. 2013AP1407.pdr Presumption ¶144 The majority opinion also concludes that if all else fails, Wis. Admin. Code ch. PSC 128 is saved by the presumption of Wis. Stat. § 227.20(3), which provides in relevant part: (3) Filing a certified copy of a rule with the legislative reference bureau creates a presumption of all of the following: . . . . (c) That all of the rule-making procedures required by this chapter were complied with. ¶145 I take judicial notice that a certified copy of Wis. Admin. Code ch. PSC 128 was filed with the Legislative Reference Bureau. directly However, affect because housing, report was required. request the §§ PSC a Wis. 128.13, Stat. 128.14 and § 227.115(2) 128.15 housing All agree that the Commission did not Department to prepare Department provided no such report. a housing report, and the Because the Commission was required to request a housing report and did not do so, the presumption of Wis. Stat. § 227.20(3)(c) has been rebutted. ¶146 Furthermore, if governmental agencies could ignore legislative directives simply by filing a certified copy of a proposed rule with the Legislative Reference Bureau, there would be a great temptation for busy agency employees not to bother with fully complying with legislative directives during rulemaking. Accordingly, § 227.20(3)(c) enacted with Legislature. cannot the save disregard for presumption the of Commission's rules the express Wis. Stat. that directives of were the See Dane Cnty. v. DHSS, 79 Wis. 2d 323, 331-32, 15 No. 255 N.W.2d challenge 539 the (1977) manner (concluding in which the that Dane Department 2013AP1407.pdr County of could Health and Social Services had promulgated its rule). C. Remedy ¶147 I have concluded that the plain meaning of Wis. Stat. § 227.115(2) required the Commission, as a matter of law, to obtain a housing report from the Department when it promulgated Wis. Admin. Code ch. PSC 128; that it failed to do so and that its failure is not saved by Wis. Stat. § 227.20(3)(c). The question now becomes, what is the remedy for the Commission's failure. ¶148 Wisconsin Realtors began this action pursuant to Wis. Stat. § 227.40. that section's provisions for declaratory judgment Therefore, I look to guidance. Wisconsin Stat. § 227.40(4)(a) states: In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures. It is without under the last compliance provision: with statutory the rule rule-making "was promulgated procedures," on which Wisconsin Realtors' claim lies. ¶149 Courts have reviewed other rules that have been promulgated without compliance with rule-making procedures and have held such rules invalid. For example, in Cholvin v. DHFS, 2008 WI App 127, ¶¶32-34, 313 Wis. 2d 749, 758 N.W.2d 118, the court of appeals held a directive that the Department of Health 16 No. and Family Services had given to Susan Cholvin 2013AP1407.pdr was invalid because the Department did not employ statutorily required rulemaking to promulgate the directive. See also Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, ¶24, 247 Wis. 2d 589, 634 N.W.2d 593 (explaining that failure to comply with rule-making procedures is one ground for declaring a rule invalid). ¶150 The Commission did not comply with Wis. Stat. § 227.115(2), and as a matter of law, it was required to do so. The plain meaning remedy: "the of Wis. court Stat. shall § 227.40(4)(a) declare the provides rule the invalid." Accordingly, I follow that directive and conclude that ch. PSC 128 is invalid. III. CONCLUSION ¶151 I conclude that the Commission was obligated, as a matter of law, to obtain a Wis. Stat. § 227.115(2) housing report because Wis. Admin. Code ch. PSC 128 directly affects housing. report; The Commission failed to obtain a § 227.115(2) housing therefore, § 227.40(4)(a). ch. PSC 128 is invalid. Wis. Stat. Accordingly, I respectfully dissent from the majority opinion. ¶152 I am authorized to state KINGSLAND ZIEGLER joins this dissent. 17 that Justice ANNETTE No. 1 2013AP1407.pdr
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