Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources

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In this case concerning eight applications to operate high capacity groundwater wells the Supreme Court affirmed the order of the circuit court with a modification that the circuit court remand all eight well applications to the Department of Natural Resources (DNR), holding that the DNR erroneously interpreted the law in concluding that it had no authority to consider the environmental effects of the wells at issue.

The eight well applications did not require a formal environmental review, but the DNR had information that the wells would negatively impact the environment. The DNR, however, approved the applications, concluding that it had no authority to consider the proposed wells' environmental effects. The circuit court vacated the DNR's approval of the wells. The Supreme Court affirmed as modified, holding that the DNR erred in interpreting Wis. Stat. 227.10(2m) as a bar to considering a proposed high capacity well's potentially adverse environmental effects for which an environmental review was not otherwise required. The Court modified the circuit court's order with instruction that it remand all eight applications to the DNR.

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2021 WI 72 SUPREME COURT OF WISCONSIN CASE NO.: 2018AP59 COMPLETE TITLE: Clean Wisconsin, Inc. and Pleasant Lake Management District, Petitioners-Respondents, v. Wisconsin Department of Natural Resources, Respondent-Appellant, Wisconsin Manufacturers & Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council and Wisconsin Corn Growers Association, Intervenors-Co-Appellants, Wisconsin Legislature, Intervenor. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 8, 2021 April 12, 2021 Circuit Dane Valerie Bailey-Rihn JUSTICES: DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ROGGENSACK, J., joined. NOT PARTICIPATING: HAGEDORN, J., did not participate. ATTORNEYS: For the intervenor, there were briefs filed by McLeod, Kirsten A. Atanasoff, Lisa M. Lawless, Eric M. and Husch Blackwell LLP, Madison and Milwaukee. There was an oral argument by Eric M. McLeod. For the intervenors-co-appellants, there were briefs file by Robert I. Fassbender and Great Lakes Legal Foundation, Madison. There was an oral argument by Robert I. Fassbender. For the petitioners-respondents, there was a brief file by Carl A. Sinderbrand and Axley Brynelson, LLP, Madison. There was an oral argument by Carl Sinderbrand. For the respondent-appellant, there was a brief filed by Gabe Johnson-Karp and Jennifer L. Vandermeuse assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general, Madison. There was an oral argument by Gabe Johnson-Karp. An amicus curiae brief was filed on behalf of Central Sands Water Action Coalition by Andrea Gelatt, Rob Lundberg, Adam Voskuil, and Midwest Environmental Advocates, Madison. An amicus curiae brief was filed on behalf of Wisconsin Trout Unlimited, Inc. by Henry E. Koltz and Schmidt, Darling & Erwin, Milwaukee. 2 2021 WI 72 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP59 (L.C. Nos. 2016CV2817, 2016CV2818, 2016CV2819, 2016CV2820, 2016CV2821, 2016CV2822, 2016CV2823, 2016CV2824) STATE OF WISCONSIN : IN SUPREME COURT Clean Wisconsin, Inc. and Pleasant Lake Management District, Petitioners-Respondents, v. Wisconsin Department of Natural Resources, Respondent-Appellant, Wisconsin Manufacturers & Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council and Wisconsin Corn Growers Association, FILED JUL 8, 2021 Sheila T. Reiff Clerk of Supreme Court Intervenors-Co-Appellants, Wisconsin Legislature, Intervenor. DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ROGGENSACK, J., joined. HAGEDORN, J., did not participate. No. 2018AP59 APPEAL from a judgment and an order of the Circuit Court for Dane County, Valerie Bailey-Rihn, Judge. Modified and affirmed, and, as modified, cause remanded. ¶1 REBECCA FRANK DALLET, J. One of the Department of Natural Resources' (DNR) many responsibilities is to evaluate applications to operate high capacity groundwater wells. certain wells, the DNR must follow a specific For environmental review process before approving the application. For all other wells, that process is not required, although the DNR sometimes still considers the potential environmental effects proposed well when evaluating the well's application. well applications category: at issue here fall into of a The eight the latter a formal environmental review was not required, but the DNR had information that the wells would negatively impact the environment. Despite that knowledge, the DNR approved the applications after concluding it had no authority to consider the proposed wells' environmental effects. ¶2 District Clean Wisconsin, Inc. and the Pleasant Lake Management (collectively, "Clean decision to the circuit court.1 decision was contrary to Lake Wisconsin") appealed that They argued that the DNR's Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, where we held that the DNR had the authority and discretion to consider the The Honorable Valerie Circuit Court presided. 1 Bailey-Rihn 2 of the Dane County No. 2018AP59 environmental effects of all proposed high capacity wells. The DNR argued that Lake Beulah is no longer good law because Wis. Stat. § 227.10(2m) (2019-20),2 enacted at roughly the same time we decided Lake Beulah, limits an agency's actions to only those "explicitly required or explicitly permitted by statute or by a rule," and, for these wells, a formal environmental review was not required under Wis. Stat. § 281.34.3 presented is whether § 227.10(2m) conclusion here than in Lake Beulah. that it does not and we agree. Thus, the question commands a different The circuit court decided We hold that the DNR erroneously interpreted the law when it concluded it had no authority to consider the environmental effects of the eight wells at issue here. Accordingly, we affirm the circuit court's order with the modification that the circuit court remand all eight well applications to the DNR. I ¶3 Consolidated in this case are eight permit applications for high capacity wells, all of which were filed All references the 2019-20 version. 2 to the Wisconsin Statutes are to The DNR "shall review" a well application "using the environmental review process in its rules" when a proposed well is "located in a groundwater protection area," loses more than 95 percent of the water it withdraws, or "may have a significant environmental impact on a spring." Wis. Stat. § 281.34(4)(a). 3 3 No. between March 2014 and April 2015.4 2018AP59 At the time, and consistent with our holding in Lake Beulah, the DNR's common practice was to review capacity environmental-impact well applications, information regardless § 281.34(4)(a) required such a review. that the proposed well would cause of for whether most high Wis. Stat. If the review revealed adverse environmental effects, the DNR would either deny the application or place it "on hold," neither denying nor approving it. wells at issue here, the DNR flagged the For all eight applications further review of their potential environmental impacts. for For seven of the wells,5 it completed that review and determined that approving the well would adversely affect waters covered by the public trust doctrine.6 The DNR then placed all eight well applications on hold. The well owners and respective case numbers are: Lutz, 2016CV2817; Pavelski, 2016CV2818; Peplinski, 2016CV2819; Frozene, 2016CV2820; Turzinski, 2016CV2821; Laskowski, 2016CV2822; Lauritzen, 2016CV2823; Derousseau, 2016CV2824. There is no dispute that all eight wells are "high-capacity wells" as defined in Wis. Stat. § 281.34(1)(b). 4 A DNR scientist had recommended investigating the Turzinski well's effect on the headwaters of a nearby creek, but the DNR approved the application before collecting any evidence on those potential effects. 5 Rooted in the Wisconsin Constitution, the public trust doctrine requires the state to protect its "navigable waters" for the public's benefit. See Wis. Const. art. IX, § 1; Movrich v. Lobermeier, 2018 WI 9, ¶¶25-29, 379 Wis. 2d 269, 905 N.W.2d 807. 6 4 No. ¶4 2018AP59 While those applications were on hold, the DNR's well- approval process changed. In 2016, then-Attorney General Brad Schimel released an opinion regarding Wis. Stat. § 227.10(2m) and its holding effect in on Lake the DNR's Beulah. well-permit The authority Attorney General's and our opinion concluded that this court did not address § 227.10(2m) in Lake Beulah and that, after the enactment of § 227.10(2m), the DNR had no authority to impose specific permit conditions that were not explicitly listed in a relevant statute. See Opinion of Wis. Att'y Gen. to Robin Vos, Assembly Committee on Organization Chairperson, OAG-01-16, ¶2 (May 10, 2016). He read Lake Beulah as holding that the legislature had "impliedly delegated" to the DNR broad, public-trust authority, which could not withstand § 227.10(2m): Although the Lake Beulah Court found that DNR had broad implied authority to impose permit conditions, 335 Wis. 2d 47, ¶3, that holding now directly conflicts with Act 21. I conclude that through Wis. Stat. §§ 227.10(2m) [and 227].11(2)(a), the Legislature has limited DNR's authority to regulate high capacity wells only as explicitly enumerated through statute or rule. DNR cannot premise such authority on broad statements of policy or general duty, such as those found in Wis. Stat. §§ 281.11-.12. OAG-01-16, ¶31 (footnote omitted). The DNR adopted this opinion and began approving most of the applications it had placed on hold. And, despite its having evidence that some of those proposed wells would adversely affect public-trust waters, the DNR generally waters. The imposed no DNR also permit conditions stopped 5 to reviewing protect the those potential No. environmental effects of proposed wells except 2018AP59 when review was required under Wis. Stat. § 281.34(4). such a Under this new approach, and despite its prior determination that the wells at issue here would adversely affect public-trust waters, the DNR approved all eight well applications without any conditions. ¶5 Clean Wisconsin appealed each approval to the circuit court under Wis. Stat. ch. 227. DNR approved those wells Clean Wisconsin argued that the based upon an erroneous legal determination that it had no authority outside of Wis. Stat. § 281.34(4) to consider the environmental effects of a proposed high capacity well. Citing Lake Beulah for support, Clean Wisconsin argued that the DNR has both a public-trust duty and the express statutory authority to consider the environmental impact of all proposed high-capacity wells. The DNR countered that Lake Beulah did not control for two reasons: "decided incorrectly" (1) it was because it "amalgamat[ed]" an "implied" authority for the DNR to review a proposed well's environmental effects rather than looking to the statutes' explicit text; and (2) per the Attorney General's 2016 opinion, § 227.10(2m) negated Lake Beulah's holding. Wis. Stat. Several business associations intervened and urged the circuit court to find that the DNR had properly approved the well applications.7 These The intervenors at the circuit court were Wisconsin Manufacturers and Commerce, Dairy Business Association, Midwest Food Products Association, Wisconsin Potato and Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and Wisconsin Corn Growers Association. 7 6 No. 2018AP59 associations argued that ruling otherwise would create a permit system without standards and leave applicants without clear guidance about which applications would be further reviewed for their potential environmental impact. ¶6 The circuit court agreed with Clean Wisconsin that Lake Beulah applied and that the DNR erred in determining it could not consider the environmental effects of all proposed high capacity wells. Lake Beulah in The circuit court pointed to a footnote in which we briefly mentioned that Wis. Stat. § 227.10(2m) did not affect our analysis. It then explained that and the DNR, the business associations, the Attorney General's opinion raised arguments that we had rejected in Lake Beulah. Having concluded that the DNR was bound by Lake Beulah, the circuit court found that "[a]bsent the Attorney General['s] opinion, the DNR would have denied all . . . of these well applications [except for the Turzinski application] as impacting navigable waters." It therefore vacated the seven approved applications and remanded to the DNR the Turzinski application so that the DNR could consider the well's potential effect on the headwaters of a nearby creek. ¶7 The DNR and the business associations appealed, and, in early 2019, the court of appeals certified the appeal to this 7 No. court.8 After procedural we accepted developments legislature's intervenors: motion the certification, occurred. to First, intervene, business two we creating associations and 2018AP59 noteworthy granted two the the sets of legislature. Throughout this opinion, we refer to them collectively as the "Intervenors." Second, the DNR now agrees with the circuit court and Clean Wisconsin that the DNR has the authority to review the environmental impact of a proposed well even if such a review is not required by Wis. Stat. § 281.34(4). II ¶8 This certified appeal presents two questions: (1) Does Wis. Stat. § 227.10(2m) prohibit the DNR from considering the potential environmental effects of a proposed high capacity well when such consideration is not required by Wis. Stat. § 281.34(4)? (2) Does Wis. Stat. § 281.34(5m) bar Clean Wisconsin's claims? ¶9 The scope of the DNR's statutory question of law, which we review de novo. authority is a See Papa v. DHS, 2020 WI 66, ¶19, 393 Wis. 2d 1, 946 N.W.2d 17. When reviewing an agency's decision under Wis. Stat. ch. 227, we will generally The court of appeals also certified another consolidated "companion" case, Clean Wisconsin, Inc. v. DNR, No. 2016AP1688. Although both cases address the effect of Wis. Stat. § 227.10(2m) on the scope of the DNR's permit-approving authority, each deals with a different authorizing statute, thus presenting different legal questions. See Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op. (Wis. S. Ct. July 8, 2021). 8 8 No. 2018AP59 uphold that decision unless we conclude that "the agency has erroneously interpreted § 227.57(2), (5). If a provision an agency of law." erroneously Wis. Stat. interpreted a provision of law and the correct interpretation of law does not "compel[] a particular action," we remand the cause to the agency "for further action" according to the correct statutory interpretation. § 227.57(5); see also Applegate-Bader Farm, LLC v. DOR, 2021 WI 26, ¶¶39, 41, 396 Wis. 2d 69, 955 N.W.2d 793. ¶10 review Statutory interpretation is a question of law that we de novo. Moreschi v. Village of Williams WI 95, ¶13, 395 Wis. 2d 55, 953 N.W.2d 318. Bay, 2020 When interpreting statutes, we start with the text, and if its meaning is plain on its face, we stop there. Wis. 2d 176, 922 Myers v. DNR, 2019 WI 5, ¶18, 385 N.W.2d 47. We also consider the statutory context, interpreting language consistent with how it is used in closely related statutes. Moreschi, 395 Wis. 2d 55, ¶¶13, 23. We afford no deference to the agency's interpretation of the statute in question. Wis. Stat. § 227.10(2g). III ¶11 Our analysis starts with a brief overview of the public trust doctrine and the statutes governing high capacity wells. We next review our Lake Beulah decision and whether Wis. Stat. § 227.10(2m) changes any of our conclusions there. We conclude with a discussion of whether Wis. Stat. § 281.34(5m) bars any of the claims here. 9 No. 2018AP59 A ¶12 Any analysis of agency actions affecting the state's navigable waters "must start with the public trust doctrine." Hilton v. DNR, 2006 WI 84, ¶18, 293 Wis. 2d 1, 717 N.W.2d 166. This doctrine, enshrined in the Wisconsin Constitution, entrusts the State to protect Wisconsin's "navigable waters": The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. Wis. Const. art. IX, § 1; see also Movrich v. Lobermeier, 2018 WI 9, ¶26, 379 Wis. 2d 269, 905 N.W.2d 807 (noting that the doctrine's roots stretch back to the 1787 Northwest Ordinance). We have long interpreted this provision broadly and consistent with its sweeping scope, explaining that it protects more than strictly rights. navigable See, waters e.g., or Diana related Shooting commercial Club v. navigation Husting, 156 Wis. 261, 271, 145 N.W. 816 (1914); Muench v. PSC, 261 Wis. 492, 53 N.W.2d 514 (1952); Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶72, 250 Wis. 2d 45, 833 N.W.2d 800. For instance, we have held that the doctrine extends to "all areas within the ordinary high water mark of the body of water in question." Movrich, 379 Wis. 2d 269, ¶27. It protects not only the Great Lakes' beds but also "lesser inland waters," including "areas 10 No. 2018AP59 covered with aquatic vegetation" within a particular high water mark. R.W. Docks & Slips Wis. 2d 497, 628 N.W.2d 781. v. State, 2001 WI 73, ¶19, 244 Similarly, we have held that the doctrine safeguards the public's use of the state's waters for even "purely recreational purposes." Id.; Nekoosa Edwards Paper Co. 47, v. R.R. Comm'n, 201 Wis. 40, 228 N.W. 144 (1930) (explaining that the public has a right to use certain state waters for "sailing, rowing, canoeing, bathing, fishing, hunting, skating, and other public purposes").9 ¶13 The legislature, as one of the public's trustees, has delegated to the DNR some of its public trust responsibilities. Lake Beulah, 335 Wis. 2d 47, ¶34; see also Wis.'s Env't Decade, Inc. v. DNR, 85 Wis. 2d 518, 527, 271 N.W.2d 69 (1978). speaking, the legislature charged the DNR with the Broadly "general supervision and control over the waters of the state." Stat. § 281.12(1). Wis. To carry out that mission, the legislature granted the DNR the "necessary powers" to enhance the "quality management and protection of all waters of the state" against "all present and potential sources of water pollution." Stat. § 281.11. Wis. More specifically, the legislature has mandated The public-trust doctrine is not unlimited in scope. It does not apply to unnavigable wetlands that are part of no body of water's ordinary high water mark. Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶¶85-90, 110, 250 Wis. 2d 45, 833 N.W.2d 800 (noting, however, that the DNR may still regulate such areas if it has the statutory authority to do so). And we have explained that the public-trust jurisdiction does not extend to "nonnavigable land." See id. 9 11 No. 2018AP59 that the DNR "shall carry out the planning, management[,] and regulatory programs necessary for implementing the policy and purpose of this chapter," including "plans and programs for the prevention and abatement maintenance and improvement of water of water pollution and quality." for the § 281.12(1). The legislature explained that this "comprehensive program under a single state agency" was "needed to protect human life and health" as § 281.11. well all uses of water throughout the state. It also directs courts to "liberally construe[]" the water-protection statutes "in favor of the [statutes'] policy objectives" so as to ensure that the DNR serves the purpose[]" of protecting the state's public-trust waters. ¶14 "vital Id. To that end, the DNR regulates the construction and operation of high capacity groundwater wells. All high capacity wells must be approved by the DNR through a discretionary permit process. Wis. Stat. §§ 281.34(2), 281.35. obligated to give its approval. ¶41. The DNR is never Lake Beulah, 335 Wis. 2d 47, When it does approve an application, it is required to impose certain permit conditions, such as the condition that "all high capacity wells" comply with the groundwater-withdrawal requirements in § 281.35(4)-(6). See § 281.34(5)(e). And in certain circumstances, the DNR is required to deny a permit, such as when it is unable to ensure, via permit conditions, that a well will not "cause significant environmental impact" or that such impact is not "balanced by the public benefit of the well related to public health and safety." Additionally, the DNR must conduct 12 See § 281.34(5)(a)-(d). an environmental-impact No. analysis wells, before approving a process a permit detailed in its for three 2018AP59 categories of administrative rules. See § 281.34(4)(a); Wis. Admin. Code § NR 820.29-.32 (June 2020). ¶15 The parties agree that an environmental review is not required for any of the eight wells in this case. environmental review is legislatively required for Because some well applications but not for the ones at issue, the Intervenors allege that the DNR is implicitly prohibited from considering environmental-impact evidence in its permit-approval decision. B 1 ¶16 We addressed the same issue in Lake Beulah. As the Intervenors argue here, the Village of East Troy argued in Lake Beulah that the DNR had no authority to consider the environmental effects of a proposed high capacity well that fell outside the scope of Wis. Stat. § 281.34(4). 335 Wis. 2d 47, ¶29. East Troy asserted See Lake Beulah, that because the legislature required the DNR to conduct an environmental review in limited circumstances, it had implicitly precluded the DNR from conducting such reviews in all other circumstances. Id. And, according to East Troy, the "general policy provisions" of Wis. Stat. §§ 281.11 specific requirement. and 281.12 Id. could not "supersede[]" that East Troy argued that allowing the DNR to consider the environmental effects of all applications for high capacity wells, not just those required under § 281.34(4), would "create a permit system without standards" and cause confusion for permit applicants. 13 See id., ¶¶29, 42. No. the 2018AP59 ¶17 We unanimously rejected those arguments, holding that DNR has both a constitutional duty and the statutory authority to consider the environmental effects of all proposed high capacity constitutional wells. Id., public-trust ¶39. duty We held that stems from the the DNR's legislature delegating to the DNR that obligation via Wis. Stat. §§ 281.11 and 281.12. Id., ¶¶34, 39. And for the DNR to fulfill its duty under § 281.11 to "protect, maintain, and improve" the state's water supply, it had to consider the environmental effects of a proposed high capacity well. Id., ¶39 & n.29. Put another way, a permit application for a high capacity well triggers the DNR to act on its public-trust duty, under which it cannot ignore "concrete, scientific evidence of potential harm to waters of the state." ¶18 Id., ¶¶39 n.28, 46. We also explained that what the DNR's duty sometimes requires, its statutory authority likewise permits. "[T]here is nothing in either Wis. Stat. § 281.34 or § 281.35" that prevents the DNR from considering the environmental effects of proposed wells for which it is not required to do so. Id., ¶41. Rather, the legislature has "expressly granted" the DNR the "discretion to undertake the review [the DNR] proposed high capacity wells." deems Id., ¶39. necessary for all As for East Troy's argument that the DNR's broad discretion over permit approvals created a system "without standards," we explained that "broad standards Indeed, statutes" [are] not . . . non-existent "[g]eneral because standards they are allow 14 the ones." common DNR in to Id., ¶43. environmental "utilize[] its No. 2018AP59 expertise" in determining how best to protect the environment within its statutory limits. expertise and prevent the potential environmental Id., ¶43 & n.34. DNR from effects To ignore that considering both evidence "conflict[ed] with of the permissive language in the statutes" and might have led to the "absurd result" where the DNR would be forced to approve a permit for a well that met other statutory requirements but that the DNR "knew . . . would state." "the Id., ¶¶28, 42. authority cause harm to the waters of the We therefore concluded that the DNR has and the general duty" to consider the environmental impact of proposed high capacity wells, especially when it is presented with evidence of potential environmental harms. Id., ¶¶64, 66. ¶19 Our We reaffirm unanimous our decision statutory there analysis correctly in Lake interpreted Beulah. the well- permitting statutes, each of which is the same today as it was in 2011. Accordingly, there is no need to re-interpret those statutes. 2 ¶20 because, But Lake after we Beulah heard alone oral legislature passed Act 21. 335 Wis. 2d 47, ¶39 n.30. does not arguments resolve in that this case, case the See 2011 Wis. Act 21; Lake Beulah, The Act contained significant revisions to Wis. Stat. ch. 227, which governs administrative agencies and procedures, including adding subsec. (2m) to Wis. Stat. § 227.10: 15 No. 2018AP59 No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter . . . . The question is therefore what effect, if any, does § 227.10(2m) have on our analysis in Lake Beulah? the DNR correctly Schimel's 2016 considering capacity opinion, the well, determined, based that for on then-Attorney § 227.10(2m) environmental except The Intervenors argue that effects when prohibits of required a General it from proposed high under Wis. Stat. § 281.34(4). ¶21 We hold that Wis. Stat. § 227.10(2m) does not alter our analysis or conclusion in Lake Beulah. The DNR's authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute. ¶22 The key to understanding § 227.10(2m) is to understand the meaning of the term "explicitly." There is no definition of "explicit" in the statutes, but it is a common word and the parties generally agree on its ordinary, dictionary definition. See Moreschi, 395 Wis. 2d 55, ¶21. defined as meaning nothing implied.'" (3d ed. 1994). "'clearly "Explicit" is ordinarily expressed' so as to 'leav[e] See, e.g., American Heritage Dictionary 645 The parties disagree about the relationship of "explicit" to "broad." The Intervenors read "explicit" as the 16 No. opposite not only of "implicit" but also of 2018AP59 "broad" and "general,"10 arguing that explicit authority must be specific. Clean Wisconsin counters that explicit authority can be broad or general, so long as the broad authority is clear. ¶23 Explicit authority and broad authority are different concepts but not mutually exclusive ones. An explicit phrase can be broad or specific; broad authority can be either explicit or implicit. legislature See, e.g., Lake Beulah, 335 Wis. 2d 47, ¶39 ("the has explicitly provided the DNR with the broad authority"); City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 433 (2002) (noting that a "general" provision "explicitly" preempted certain regulations); Explicit, American Heritage Dictionary 645 (3d ed. 1994) (providing the example phrase: "generalizations explicit"). The that Intervenors are err by powerful, precise, and treating "explicit" and "broad" as incapable of co-existing in a statute's authorizing language. In doing so, they misinterpret the scope of Wis. Stat. § 227.10(2m). ¶24 Section 227.10(2m) targets, in a general sense, only the distinction between explicit and implicit agency authority. It requires courts to strictly construe an agency's authorizing Implicit, American Heritage Dictionary 906 (3d ed. 1994) ("not directly expressed" or "not readily apparent"); Broad, id. at 241 ("covering a wide scope" or "general"); General, id. at 755 ("not limited in scope . . . or application"). Given the similarities in the definitions of "broad" and "general," and the fact that "general" is a synonym for "broad," we use those two terms interchangeably. 10 17 No. statute as granting the agency no implicit 2018AP59 authority. Section 227.10(2m) does not, however, strip an agency of the legislatively granted explicit authority it already has. Nor does it negate a more targeted "directive from the legislature" to "liberally construe" the specific confer an agency's authority. statutes that expressly See Wis. Stat. § 281.11; Wis. Dep't of Justice v. DWD, 2015 WI 114, ¶30, 365 Wis. 2d 694, 875 N.W.2d 545 ("We take such a directive . . . seriously."). Accordingly, for purposes of § 227.10(2m), if the legislature clearly expresses undertake in certain a statute's actions, the text that breadth an of agency the can resulting authority will not defeat the legislature's clear expression. See also Clean Wis., Inc. v. DNR, No. 2016AP1688, slip op., ¶25 (Wis. S. Ct. July 8, 2021). the ¶25 That is the case here: DNR the broad but explicit the legislature has granted authority to consider environmental effects of a proposed high capacity well. the As we explained in Lake Beulah, the legislature clearly granted that authority by delegating to the DNR responsibilities in Wis. Stat. § 281.12. Wis. 2d 47, ¶¶34, 39. certain public-trust See Lake Beulah, 335 The text of § 281.12 explicitly requires the DNR to "carry out the planning, management[,] and regulatory programs necessary" to achieve the purpose of ch. 281. Just as explicitly, but even more specifically, the DNR "shall formulate plans and programs" to protect the state's waters. § 281.12(1). In considering the potential environmental impacts of proposed high capacity wells, the DNR is 18 carrying out those express No. directives. explicit 2018AP59 See Lake Beulah, 335 Wis. 2d 47, ¶¶39-44. authority to do so is broad does not That its negate that authority. ¶26 explicit Wisconsin Stat. legislative §§ 281.34 permission and 281.35 for the broad authority under Wis. Stat. § 281.12. §§ 281.34(5)(e) conditions on an requirements, "public and the water 281.35(5)(d), approved well rights well will in the to DNR are to further exercise its By the plain text of DNR ensure "shall" that, neither "adversely navigable waters" impose among other affect[]" nor any "have a significant detrimental effect on the quantity or quality of the waters of the state." For some well applications, the DNR will be able to impose the necessary permit conditions based solely on its "expertise in water resources management." Beulah, 335 Wis. 2d 47, ¶¶42-43, 46. See Lake But for others, the DNR may need to collect and review evidence about a well's potential environmental effects before it knows will prevent those adverse effects. what permit See id. conditions In either case, the DNR is carrying out its explicit statutory directive to protect the Therefore, state's the waters well-permitting via certain statutes, permit in conditions. addition to Wis. Stat. §§ 281.11 and 281.12, explicitly allow the DNR to consider a proposed well's potential effect on the environment. See Wis. Stat. §§ 281.12, 281.34(5)(e); Lake Beulah, 335 Wis. 2d 47, ¶46. ¶27 Because the legislature explicitly granted the DNR broad authority to consider the potential environmental impact of proposed high capacity wells, we conclude that the enactment 19 No. 2018AP59 of Wis. Stat. § 227.10(2m) does not change our holding in Lake Beulah. effects The of DNR's all authority high to capacity consider wells is the environmental consistent with § 227.10(2m) and the DNR erred when it concluded otherwise. 3 ¶28 The Intervenors' remaining arguments miss the mark and mirror the arguments we rejected in Lake Beulah. Like East Troy in Lake Beulah, the Intervenors argue that a general statute cannot confer explicit authority. As discussed above, however, and exemplified in Wis. Stat. § 281.12, general and explicit are not mutually exclusive concepts. ¶29 The Intervenors' claim that Wis. Stat. § 227.10(2m) "superseded" and "nullif[ied]" Lake Beulah falters for the same reason, but also because it rests on a misrepresentation of our holding in Lake Beulah. The Intervenors misleadingly report that we "found" the DNR's broad public-trust duty "implicitly contained the more specific power" to consider the environmental effects of all proposed high capacity wells. Nowhere in Lake Beulah did we describe the DNR's environmental-review authority as "implicit." What we actually said was that "the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and decide whether to issue the permit." Lake Beulah, 335 Wis. 2d 47, ¶39 (emphasis added). Thus, § 227.10(2m) does not supersede or nullify our holding in Lake Beulah. ¶30 See id., ¶39 n.31. The Intervenors' resort to Wis. Stat. § 227.11(2)(a) does not save its argument. That statute prevents courts from 20 No. 2018AP59 finding implicit agency-rule-making authority in general policy or purpose statements authorization. that contain no explicit rule-making But this case is not about the DNR's rule-making power; section 227.11(2)(a) is therefore irrelevant. C ¶31 Finally, regarding the second question in this certified appeal, we agree with the circuit court that Clean Wisconsin's That claim provision consideration proposed not bars of high is a the barred challenge cumulative capacity by well. Wis. Stat. "based on the environmental Id. (emphasis § 281.34(5m). lack impacts" of of added). a Clean Wisconsin's claims, however, are based on the fact that the DNR considered the potential environmental impact of these when deciding whether to grant the well permits. wells Accordingly, § 281.34(5m) is no bar to Clean Wisconsin's challenge. III ¶32 when it The DNR erroneously interpreted Wis. interpreted Stat. a provision § 227.10(2m) as a of bar law to considering a proposed high capacity well's potentially adverse environmental effects for which an environmental review was not otherwise required. That error, however, does not compel the DNR to either approve or deny the permits. § 227.57(5). Rather, after considering See Wis. Stat. the environmental effects of these proposed wells, the DNR must use its discretion and expertise to determine whether to approve the wells. We therefore affirm the circuit court's vacating the DNR's approval of the wells, but, on remand to the circuit court, we modify the 21 No. 2018AP59 circuit court's order with instructions that it remand all eight applications to the DNR. See id.; Applegate-Bader Farm, 396 Wis. 2d 69, ¶¶39, 41. By the Court.—The judgment and order of the circuit court are modified and affirmed, and, remanded to the circuit court. 22 as modified, the cause is No. ¶33 REBECCA GRASSL BRADLEY, J. 2018AP59.rgb (dissenting). [F]reedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it . . . and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man[.] John Locke, Second Treatise of Civil Government § 22 (John Gough ed., 1947) (emphasis added). In a striking affront to the will of the people, a majority of this court defies the law enacted by the people's representatives in the legislature, warps the plain language of enabling statutes, and affords administrative agencies and unelected bureaucrats the power to override the legislature from which they derive their delegated authority. In doing so, the majority upends the foundational principle that "administrative agencies are the creatures of the legislature and are responsible to it." Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 57, 158 N.W.2d 306 (1968) (emphasis added). ¶34 Through Act 21,1 the Wisconsin Legislature curtailed the exercise of regulatory power by abating the authority the legislature delegated to administrative agencies. Specifically, the implement legislature mandated that "[n]o agency may or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless . . . [it] is explicitly required or explicitly permitted by statute or by a rule[.]" added). its Functionally, the legislature reclaimed a portion of constitutionally-conferred 1 Wis. Stat. § 227.10(2m) (emphasis powers 2011 Wis. Act 21. 1 previously delegated to No. agencies, an act embodying the indelible 2018AP59.rgb principle that "an agency's powers, duties and scope of authority are fixed and circumscribed change." ¶35 the by the legislature and subject to legislative Schmidt, 39 Wis. 2d at 56 (emphasis added). Instead of giving effect to this legislative change, majority nullifies it. Disregarding Wis. Stat. § 227.10(2m)'s instruction that agencies may exercise only those enforcement powers "explicitly" granted by the legislature or properly promulgated by rule, the majority infuses its statutory analysis with environmental policy concerns in order to reach the conclusion that the Department of Natural Resources (DNR) possesses the power to conduct environmental impact reviews for the eight high capacity wells at issue in this case. It doesn't. ¶36 Wis. To arrive at its favored holding, the majority severs Stat. § 227.10(2m) enabling authorities. to conduct from any relationship with DNR's Because DNR lacks any explicit authority environmental impact reviews for capacity wells, DNR may not undertake them. the eight high Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, does not (and cannot) supersede the law. The circuit court erred in vacating DNR's well approvals and the majority errs in affirming the judgment. I dissent. I. A. ¶37 STATUTORY AND FACTUAL BACKGROUND Statutes Governing High Capacity Wells Wisconsin Stat. ch. 281 governs approval of high capacity well applications. 2 DNR's review and Under Wis. Stat. No. 2018AP59.rgb § 281.34(1)(b), "high capacity wells" have a pumping capacity of more than 100,000 gallons per day (gpd). Wells with a pumping capacity of less than 100,000/gpd are subject to a different set of requirements and are not at issue in this case. See Wis. Stat. § 281.34(3)(a) (requiring owners of a well that is "not a high capacity well" to simply notify the department before its construction and pay a $50 fee). ¶38 Wisconsin Stat. ch. 281 divides high capacity wells into two separate categories: wells with a "water loss" above 2,000,000/gpd in any 30-day period [hereinafter "large wells"], and wells with a "water loss" below 2,000,000/gpd [hereinafter "medium wells"].2 See Wis. Stat. § 281.35(4)(b)1. Under Wis. Stat. § 281.34(1)(g), "water loss" means "a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both." ¶39 Wisconsin Stat. § 281.35(5)(d) sets forth express requirements DNR must follow before approving an application for a large well. "[t]hat no Among other requirements, DNR "shall determine" public water rights in navigable waters will be adversely affected [by the proposed large well]" and that "the proposed withdrawal will not have a significant detrimental effect on the quantity and quality of the waters of the state." Although the phrases "large wells" and "medium wells" do not appear in the Wisconsin Statutes, they are helpful labels for conceptualizing the statutory scheme under which DNR reviews and approves high capacity well applications. As will be explained later, although "large wells" and "mediums wells" are both "high capacity wells," only the former are subject to the heightened mandates of Wis. Stat. § 281.35. 2 3 No. § 281.35(5)(d)1, 6. it "shall modify 2018AP59.rgb If DNR approves a large well application, the applicant's existing approval or shall issue a new approval that specifies" a number of permitting conditions, including, among other things, "[t]he dates on which . . . water may be withdrawn," "[t]he uses for which water may be withdrawn," and "[a]ny other conditions, limitations and restrictions that the department protect the environment[.]" ¶40 fewer determines are necessary § 281.35(6)(a)3, 4, 7. In contrast, medium wells are subject to considerably permitting sometimes requirements allowed to conduct than an large wells; environmental DNR DNR need § 281.35(5)(d) not before satisfy the approving requirements a medium is impact before approving an application for a medium well. wells, to of well only review Unlike large Wis. Stat. application. Instead, medium wells primarily fall under the purview of Wis. Stat. § 281.34. Pursuant to § 281.34(4)(a), DNR may conduct an environmental impact review only when a high capacity medium well falls into one of three categories: (1) "[a] high capacity well that is located in a groundwater protection area";3 (2) "[a] Wisconsin Stat. § 281.34(1)(am) defines "groundwater protection area" as "an area within 1,200 feet of any of the following: 3 1. An outstanding resource water identified under s. 281.15 that is not a trout stream. 2. An exceptional resource water identified under s. 281.15 that is not a trout stream. (continued) 4 No. 2018AP59.rgb high capacity well with a water loss of more than 95 percent of the amount of water withdrawn"; and (3) "[a] high capacity well that may have a significant environmental impact on a spring." § 281.34(4)(a)1-3.4 ¶41 Under Wis. Stat. § 281.34(5), if a high capacity well corresponds to one of these three categories, DNR follows its environmental review promulgated rules. process in accordance with its properly Pursuant to this process, if DNR determines "that an environmental impact report . . . must be prepared for a proposed high capacity well" falling under one of the above three categories, DNR "may not approve the high capacity well" unless it includes permitting conditions "that ensure that the high capacity impact." for well does not cause significant See § 281.34(5)(b)-(d) (emphasis added). purposes of this case, the Wisconsin environmental Importantly Statutes do not expressly authorize or require DNR to conduct an environmental impact review for medium wells that do not fit at least one of these three categories. B. ¶42 DNR's Approval of Eight High Capacity Wells All parties agree that the eight wells at issue in this case have a pumping capacity above 100,000/gpd and a water 3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under sub. (8)(a)." "Large wells" are also subject to the provisions of Wis. Stat. § 281.34(4)(a), in addition to the requirements set forth in Wis. Stat. § 281.35(5)(d). 4 5 No. loss below 2,000,000/gpd in any 30-day period. characteristics, they are all medium wells. 2018AP59.rgb With these Between March 2014 and April 2015, DNR received permit applications for the eight wells from parties uninvolved in this dispute. Ostensibly guided by this court's decision in Lake Beulah, DNR screened the applications state. for potential adverse impacts to waters of the In relevant part, Lake Beulah held that "DNR has the authority and a general duty to consider whether a proposed high capacity well may harm waters of the state." Lake Beulah, 335 Wis. 2d 47, ¶3. ¶43 DNR For three of the applications at issue in this case, delayed neighboring environmental approval waters; of the permits, however, review. For it citing never one of concerns conducted the a about formal applications, DNR initially recommended approval with a limited capacity for the well, but deferred its decision for further evaluation. For the remaining four applications, DNR conducted an analysis of the cumulative impacts these wells would have on surrounding waters and concluded that these four applications should be denied. However, instead of denying the applications, DNR offered the applicants the option to place them "on hold," noting that "the [Wisconsin] Legislature is currently discussing legislation that may affect the review of these applications." That new legislation was Act 21, which, as relevant to this case, created Wis. Stat. § 227.10(2m) § 227.10(2m). would have DNR an accurately impact on the applications, among other agency actions. 6 anticipated approval of that well Under that statute, agencies——including DNR——may not enforce No. 2018AP59.rgb "any standard, requirement, or threshold, including as a term or condition of any license," unless it is "explicitly required or explicitly permitted by statute or by a rule[.]" § 227.10(2m). In other words, the legislature prohibited DNR (and all other agencies) from acting beyond the authority explicitly delegated to it by the legislature. Because the legislature enacted § 227.10(2m) more than one month after this court heard oral argument in Lake Beulah and just six weeks before this court released its decision, the court did not apply the statute at all. ¶44 While all eight applications in this case were pending, the Wisconsin State Assembly requested a formal opinion from the Attorney General to resolve any confusion between Wis. Stat. § 227.10(2m) and Lake Beulah. The Attorney General concluded that § 227.10(2m) requires "an agency [to] have an explicit authority to impose license and permit conditions." 2016 Wis. Op. Att'y Gen. 1, ¶29 (2016) (OAG-01-16). According to the Attorney General, "[t]he timing of Act 21's passage, as well as the plain conclusion that the language of Lake Beulah apply Wis. Stat. § 227.10(2m)." Attorney General recognized the decision, supports [the] court did not interpret and Id., ¶9. that in Fundamentally, the enacting legislature "explicitly limited agency authority."5 Act 21, the Id., ¶26. In May 2020, a new Attorney General withdrew OAG-01-16 in its entirety. See https://www.doj.state.wi.us/sites/default/ files/news-media/5.1.20_High_Cap_wells_Letter.pdf. 5 7 No. ¶45 2018AP59.rgb In light of the Attorney General's formal opinion, DNR proceeded to review the eight well applications to determine whether environmental review of the medium wells was explicitly required or permitted by statute or rule. DNR answered this question in the negative, concluding that the eight wells did not fit any of the three categories listed under Wis. Stat. § 281.34(4)(a) and review. subsequently DNR therefore did not approved trigger all eight environmental well permits without conducting a formal environmental review. ¶46 Clean Wisconsin, Inc. and Pleasant Lake Management District (Petitioners) filed petitions for judicial review of DNR's approval of the well permits. The consolidated in Dane County Circuit Court. actions were The circuit court ruled in favor of Petitioners, vacating seven of DNR's approved permits and remanding for an evaluation of environmental impacts on the eighth approved permit. ¶47 DNR, as well as a group of intervening industry organizations,6 appealed the decision of the circuit court. court of appeals certified the case to this court. accepted lower certification, courts Petitioners. and DNR aligned reversed its its position arguments with The After we before the those of The Joint Committee on Legislative Organization, Intervening industry organizations include Wisconsin Manufacturers & Commerce, Dairy Business Association, Midwest Food Processors Association, Wisconsin Potato & Vegetable Growers Association, Wisconsin Cheese Makers Association, Wisconsin Farm Bureau Federation, Wisconsin Paper Council, and Wisconsin Corn Growers Association. 6 8 No. 2018AP59.rgb on behalf of the Wisconsin Legislature, intervened. After a stay of proceedings, briefing proceeded on the merits and this court heard oral argument. II. ¶48 Emphasizing the DISCUSSION adverse environmental effects of approving these wells, the majority declines to apply the plain language of Wis. Stat. § 227.10(2m) and affirmatively rejects the legislature's limitations on agency authority——and not just DNR's. Contrary to the majority's conclusions, there is no legal authority for DNR to conduct environmental impact reviews of any of the eight proposed high capacity wells, much less any "explicit authority" as § 227.10(2m) commands. doctrine decide certainly doesn't otherwise——the court § 227.10(2m) in that case. exactly backwards, authority first, confer never Lake Beulah interpreted or did not applied The majority conducts its analysis purportedly finding it. The public trust only seeking broad "explicit" policy agency statements and general duties in the enabling statutes, and then torturing the language and meaning of § 227.10(2m) in order to achieve an absolute obstruction of that law. A proper analysis starts with § 227.10(2m). A. ¶49 The "Explicit Authority" Requirement When it enacted Wis. Stat. § 227.10(2m) more than a decade ago, the "legislature lamented that state agencies were somehow exercising regulatory intended to grant them." Authority" Explicit: authority far beyond what it Kirsten Koschnick, Making "Explicit Deciphering Wis. Act 21's Prescriptions 9 No. 2018AP59.rgb for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993, 995 (2019). the In response, the legislature——as the elected voice of people of Wisconsin——"spoke up and clarified, through a piece of legislation, the ways in which it confers regulatory authority upon agencies." Id. at 996. alter[ed] authority the agencies." ¶50 regulatory Act 21 "dramatically enjoyed by all state Id. As part of Act 21, the legislature created Wis. Stat. § 227.10(2m), which imposes an "explicit authority" requirement upon agencies. In relevant part, the statute provides as follows: No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter, except as provided in s. 186.118(2)(c) and (3)(b)3. § 227.10(2m) (emphasis added). Contrary to the majority's vitiating reading of it, the statute speaks for itself: an agency may not enforce any standard, requirement, or threshold (including as a condition of a license) unless the agency is explicitly required or permitted to do so by statute or by properly promulgated rules. ¶51 "Explicit" means understand it to mean: what any person English 725 (11th Dictionary 901 reasonably something "[e]xpressed without ambiguity or vagueness" and "leaving no doubt." Dictionary would ed. 2019); see ("[d]istinctly 10 Explicit, Black's Law also Explicit, expressing all Oxford that is No. 2018AP59.rgb meant; leaving nothing merely implied or suggested; unambiguous; clear"); State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶53, 271 Wis. 2d 633, 681 N.W.2d 110 (instructing courts to turn to dictionary definitions to ascertain the plain meaning of a statute). "Required" commonplace meanings. and "permitted" likewise hold The former means to "to stipulate as obligatory by authority," particularly to comply with a "law [or] regulation." Require, The American Heritage Dictionary 1492 (5th ed. 2011); Require Oxford English Dictionary 2541 (6th ed. 2007). The latter means to "allow or give consent to a person or thing to do . . . something." Permit, The American Heritage Dictionary 2166 (5th ed. 2011); Permit Oxford English Dictionary 1315 (6th ed. (something); consent to"). 2007) ("to promulgated provides, rule does if the doing of After Act 21, agency authority may no longer be derived by implication. § 227.10(2m) allow an not As the plain language of enabling statute unambiguously——and or lawfully without any intimation of doubt——confer authority upon an agency to exercise a certain power (either to comply with the law or in accordance with the legislature's express consent), the agency simply does not possess that power; instead, the legislature retains it. ¶52 conforms This to legislature interpretation our precedent. "significantly of Wis. In Palm, altered our Stat. we § 227.10(2m) noted that administrative the law jurisprudence by imposing an 'explicit authority requirement' on our interpretations of agency powers." Wisconsin Legislature v. Palm, 2020 WI 42, ¶51, 391 Wis. 2d 497, 942 N.W.2d 900 (citation 11 No. omitted). In particular, we determined that the language of § 227.10(2m) delegations (citation 2018AP59.rgb "requires of power omitted). us to to narrowly administrative Agencies may construe imprecise agencies." not, for Id., example, ¶52 glean implied powers from general statutory language, nor can they transform broad statutory statements of legislative purpose or intent into a conferral legislature's new circumventing this of statutory new authority.7 scheme 'explicit See "prevent[s] authority' id. agencies requirement The from by simply utilizing broad statutes describing the agency's general duties or legislative purpose as a blank check for regulatory authority." ¶53 Id. (quoted source omitted). Just last year in Papa v. DHS, this court applied the plain language of Wis. Stat. § 227.10(2m) in considering whether the Department of Health Services (DHS) had the authority to recoup payments made to Medicaid service providers. See Papa v. DHS, 2020 WI 66, ¶2, 393 Wis. 2d 1, 946 N.W.2d 17. Applying explicit properly language in DHS's enabling statutes and Even within the space of agency rulemaking, Act 21 forbids agencies from promulgating rules under merely implicit grants of authority. For example, agencies may not promulgate rules by relying upon statements of "legislative intent, purpose, findings, or policy," Wis. Stat. § 227.11(2)(a)1, nor can agencies rely upon "statutory provision[s] describing the agency's general powers or duties." § 227.11(2)(a)2. Neither do "statutory provision[s] containing a specific standard, requirement, or threshold" "confer rule-making authority . . . or augment [any agency's] rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature." § 227.11(2)(a)3 (emphasis added). 7 12 No. 2018AP59.rgb promulgated rules, we concluded that DHS had the authority to recoup such payments only in three specific circumstances: when DHS cannot verify (1) the actual provision of covered services, (2) that the reimbursement claim is appropriate for the service provided, or (3) that the reimbursement claim is accurate for the service provided. Id., ¶40. Because DHS's recoupment policy exceeded the explicit grant of authority to DHS, it was unlawful. that Id., ¶41. "absent any Significantly for this case, we determined explicit authority" for DHS's policy, "we are left with a clear conclusion[:] legal basis for [that policy]." Id. recoupment [t]here is no Under the directives of § 227.10(2m), this court is supposed to "look to the statutes and promulgated [agency] rules to determine the scope of [the agency's] explicit . . . authority." Id., ¶32 (emphasis added). If these sources of law do not explicitly confer authority, the agency lacks any lawful power to take that specific agency action. ¶54 the Elevating legislature's authority, the its environmental prerogative majority to distorts policy reclaim the preferences its plain majority flagrantly flouts constitutional governance. administrative agencies that they can legislature." exercise Martinez foundational "We are long creations only v. have those DILHR, of the powers 165 constitutional language Stat. § 227.10(2m) to achieve its own ends. of Wis. In doing so, the principles recognized granted Wis. 2d 687, of that legislature N.W.2d 582 (1992) (citation omitted) (emphasis added). 13 over and by the 697, 478 "[T]he No. legislature may withdraw powers which have 2018AP59.rgb been granted, prescribe the procedure through which granted powers are to be exercised, and if necessary Schmidt, 39 Wis. 2d at 57. wipe out the agency entirely." Administrative agencies are not only "creatures of the legislature," but they "are responsible to it." Chicago & N.W. Ry. Co. v. Pub. Wis. 2d 570, 579, 169 N.W.2d 65 (1969). confines agency authority within Serv. Comm'n, 43 When the legislature the legislature's explicit consent, that is the law and the will of the people, which this court is duty-bound to respect and to uphold. ¶55 The majority frees administrative agencies from the legislature's "explicit authority" requirement in Wis. Stat. § 227.10(2m), to the detriment of the structural separation of powers embodied in our constitutional architecture. "The United States and Wisconsin Constitutions both vest exclusive powers in each of three independent branches of government, not four." Koschkee v. N.W.2d 600 Taylor, (Rebecca 2019 WI Grassl 76, ¶47, Bradley, 387 J., Wis. 2d 552, concurring). administrative state was "not the Framers' design." Wallison, Judicial Fortitude: Administrative State ix 929 An Peter J. The Last Chance to Rein in the (2018). Instead, the Framers "structured a tripartite system of separate powers in which each branch of the government had an assigned but limited role." Id. "The the legislature makes, the judiciary construes the law." (1825). executive executes, and Wayman v. Southard, 23 U.S. 1, 46 Neither our state nor federal constitutions empower anyone other than the legislature to make law——including any 14 administrative legislative agency. Powers See herein U.S. Const. granted art. shall be No. 2018AP59.rgb I, § 1 vested ("All in a Congress[.]"); Wis. Const. art. IV, § 1 ("The legislative power shall be vested in a senate and assembly[.]"). "Through the Constitution, after all, the people had vested the power to prescribe rules limiting their liberties in Congress alone." Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting) (emphasis added). As James Madison declared, "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty" than the separation of powers. The Federalist No. 47, at 301 (James Madison) (C. Rossiter ed., 1961). Preserving the legislature's prerogative to control its constitutionally-vested law-making powers safeguards the peoples' liberty. ¶56 Courts "have too long abrogated [their] duty to enforce the separation of powers required by our Constitution." DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 91 (2015) (Thomas, J., concurring). this case. The majority abrogates the court's duty in While some may applaud the court's advancement of environmental goals, its decision "sanctions the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our concurring). constitutional The majority structure." makes Id. (Thomas, administrative J., agencies superior to the legislature, which is irreconcilable with the republican system of governance established by the Framers. 15 "In No. republican government, predominates." the legislative authority 2018AP59.rgb necessarily Morrison v. Olson, 487 U.S. 654, 698 (1988) (Scalia, J., dissenting) (quoting The Federalist No. 51, at 322 (James Madison) (C. Rossiter ed. 1961)). much power on the legislature, "The people bestowed comprised of their representatives whom the people elect to make the laws." Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶60, 376 Wis. 2d 147, 897 N.W.2d 384 (emphasis added). power on administrative democratic oversight by The people never imparted any bureaucrats the people. insulated Through from Act 21, any the legislature reclaimed the power the people gave it and this court has no authority to override this legislative choice. ¶57 handful The majority's move has injurious impact far beyond a of envisioned wells. the "Although modern the Framers administrative could state, not they have certainly envisioned the danger to liberty posed by the accumulation of government powers in the hands of federal officials." Charles J. Cooper, Confronting the Administrative State, 25 Nat'l Aff. 96, 96 (Fall 2015). This concern exists no less at the state level. the Although administrative system, legislature the created majority Frankenstein's monster, a behemoth unless the legislature kills it. our transforms current it into beyond legislative control While the majority's decision in this case is an affront to the legislature, it is the people who will suffer in its aftermath. within an constitutional administrative allocation of "The concentration of power leviathan power 16 clashes among the with the elected and No. 2018AP59.rgb accountable branches of government at the expense of individual liberty." Koschkee, 387 Wis. 2d 552, ¶42 (Rebecca Grassl Bradley, J., concurring). When the judiciary rides roughshod over exercise laws restricting the of delegated legislative authority, it imperils "the liberty of all citizens." Operton v. LIRC, 2017 WI 46, ¶80, 375 Wis. 2d 1, 894 N.W.2d 426 (Rebecca Grassl Bradley, J., concurring). "The Framers 'believed the new federal government's most dangerous power was the power to enact laws restricting the people's liberty.'" WI 28, ¶56, 396 Wis. 2d 231, 956 Bradley, J., concurring) (quoting (Gorsuch, J., dissenting)). Fabick v. Evers, 2021 N.W.2d 856 Gundy, (Rebecca 139 S. Ct. Grassl at 2134 In this case, the majority affords administrative agencies carte blanche to regulate the people and entities they govern, based solely on broad grants of authority, denying the legislature the ability to check the actions of the bureaucracy it created. ¶58 for the there is Notwithstanding the absence of a constitutional basis administrative little state, alternative "many to commentators the powerful assert that administrative agencies we have today," in light of an increasingly "complex U.S. economy and society." Wallison, supra, at 19, 30. But "[g]overnmental efficiency can never be allowed to trump the people's liberty." Fabick, 396 Wis. 2d 231, ¶67 (Rebecca Grassl Bradley, J., concurring). "The end result" of the majority's view of agencies "may be trains that run on time (although I doubt it), but the cost is to individual liberty it protects." 17 our Constitution and the Ass'n of Am. Railroads, 575 No. U.S. at 91 (Thomas, J., concurring). Instead 2018AP59.rgb of "straying further and further from the Constitution without so much as pausing," we should "stop to consider that document blithely giving the force of law to any other agency." before Michigan v. E.P.A., 576 U.S. 743, 763-64 (2015) (Thomas, J., concurring). The people of Wisconsin gave the legislature——not administrative agencies——the power to make law. Accordingly, if the legislature decides to curtail the delegated powers of agencies by enacting legislation limiting agency action to that which is explicitly required or permitted by the legislature, this court must uphold the law. The legislature neither requires nor permits DNR to conduct an environmental review of the eight wells at issue in this case and the majority's conclusion to the contrary undermines the rule of law. B. DNR Lacks Explicit Authority to Conduct Environmental Impact Reviews for the Eight High Capacity Wells. ¶59 Nowhere in the Wisconsin Statutes or in any lawfully promulgated conduct an rules does DNR environmental have impact wells at issue in this case. the review explicit of the authority high to capacity All parties agree that the eight wells have a "water loss" below 2,000,000/gpd and a pumping capacity above 100,000/gpd, qualifying each as a medium well. None of them are large wells, so Wis. Stat. § 281.35(5)(d) does not apply. The only statutory authority authorizing DNR to conduct environmental reviews of medium wells lies in Wis. Stat. § 281.34(4)(a). Nothing in that statute expressly authorizes DNR to do so in this case. 18 ¶60 To reiterate, Wis. Stat. No. 2018AP59.rgb § 281.34(4)(a) explicitly authorizes DNR to conduct environmental impact reviews only for three specific types of high capacity wells: (1) "[a] high capacity well that is located in a groundwater protection area"; (2) "[a] high capacity well with a water loss of more than 95 percent of the amount of water withdrawn"; and (3) "[a] high capacity well that may have a significant environmental impact on a spring." § 281.34(4)(a)1-3. The parties all agree that the eight wells in this case do not fit any of these three categories. This fact is fatal to Petitioners' claim. Section 281.34(4)(a) is the only statute requiring DNR to conduct an environmental impact review for high capacity medium wells, but only for three categories of wells to which the eight wells in this case do not belong: "[DNR] shall review an application for approval of any of the following [three categories] using the environmental review process[.]" majority acknowledges that "an (Emphasis added.) environmental review required for any of the eight wells in this case." op., ¶15. Even the is not Majority No statute permits environmental reviews of these wells either. Because the eight high capacity medium wells under consideration do not fall into any of the three statutory categories explicitly requiring DNR action, DNR has no authority to conduct environmental impact reviews of them.8 DNR——now arguing in support of Petitioners——contends that allowing DNR to conduct environmental impact reviews for high capacity medium wells only if they fall under Wis. Stat. § 281.34(4)(a)'s three categories would lead to absurd results. According to DNR, under the definition of "groundwater protection area" for example (see footnote 3, supra), DNR (continued) 19 8 No. ¶61 The § 227.10(2m) worded majority and gives contrives statements of short shrift "explicit" policy and to authority purpose rather requests or permissions from the legislature. 2018AP59.rgb Wis. Stat. from broadly than express In particular, the majority relies on Wis. Stat. §§ 281.11 and 281.12. broadly-worded implication. policy and statutes of everything to inference and The former——nothing more than a "[s]tatement of purpose"——states "shall . . . protect, management leave These the maintain waters of and the in part improve state[.]" that the quality § 281.11. DNR and The latter——a provision of "[g]eneral department powers and duties"— —states in part that DNR "shall have the general supervision and control over the waters of the state" and "shall carry out the possesses the authority to conduct an environmental impact review for proposed wells within 1,200 feet of high-quality waters but not wells just a few feet further——a result it deems absurd. But the legislature engages in this sort of linedrawing all the time and DNR's position abandons basic principles of statutory interpretation. It is the job of this court to "apply [a] statute as written, not interpret it as we think it should have been written." Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶34, 267 Wis. 2d 59, 671 N.W.2d 633. "Policy decisions are left to the legislature." Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341 N.W.2d 607, 815 N.W.2d 367. "[W]e are not permitted to secondguess the policy choice of the legislature" that it was "entitled to make." Kohn v. Darlington Cmty. Sch., 2005 WI 99, ¶43, 283 Wis. 2d 1, 698 N.W.2d 794. Under Wis. Stat. § 281.34(4)(a)1, the legislature mandates environmental impact reviews for high capacity wells located in a groundwater protection area, which the legislature defines as areas within 1,200 feet of high-quality waters. See § 281.34(1)(am). The legislature set the standard, which DNR may not override. There is nothing absurd about this provision or its application. The legislature established a threshold of 1,200 feet and that is the standard we must apply. 20 No. planning, management implementing the § 281.12(1). and regulatory policy Branding and these programs purpose of nebulous 2018AP59.rgb necessary this grants for chapter." of authority "explicit" empties the word of any meaning and impermissibly defeats the legislature's curtailment of agency power. ¶62 Wisconsin Stat. explicit statement authorizing impact reviews; §§ 281.11 notably, DNR the and to phrase 281.12 conduct contain no environmental "environmental impact review" (or anything remotely similar) does not appear in the statute at all. Section § 227.10(2m) flatly prohibits agencies from deriving authority from such sweeping statements of "policy and purpose" or "general duties." that agencies can impose See § 227.10(2m) (stating permitting conditions only as "explicitly required or explicitly permitted by statute or by a rule"). As we just construed it in Palm, Act 21 "prevent[s] agencies from circumventing this new 'explicit authority' requirement by simply utilizing broad statutes describing the agency's general duties or legislative purpose as a blank check for regulatory authority." source omitted). Palm, 391 Wis. 2d 497, ¶52 (quoted The majority's reliance on these descriptions of general duties, policies, and purpose is in error. ¶63 DNR's properly promulgated rules afford it no authority to conduct an environmental impact review for these eight wells either. —points to authority. Wis. DNR——now arguing in support of Petitioners— Admin. § NR 140.02(4) as a basis for such Under that rule, DNR "may take any actions . . . if those actions are necessary to protect public health and welfare 21 No. 2018AP59.rgb or prevent significant damaging effect on groundwater or surface water quality[.]" §§ 281.11 and § NR 281.12, environmental impact 140.02(4). this reviews, Just provision nor like makes does no its Wis. Stat. mention decidedly of broad language contain any explicit authorization for such reviews. "Any actions necessary" cannot be reasonably construed as an "explicit" requirement or permission as Wis. Stat. § 227.10(2m) demands. that DNR additionally cites Wis. Admin. § NR 150.20, but provision does not explicitly require or allow environmental impact reviews for the wells at issue in this case. Under § NR 150.20(1m)(h), an environmental impact analysis is not a prerequisite for the approval of wells under Wis. Stat. § 281.34 (Emphasis added.) "except for wells under [§] 281.34(4)." Under DNR's own rules, approvals of high capacity wells outside of § 231.34(4)(a)'s three categories are merely "minor actions." ¶64 See § NR 150.20(1m). Attempting to buttress its flimsy statutory analysis, the majority disclaims any "need to re-interpret" Wis. Stat. §§ 281.11 or 281.12 and instead elects to "reaffirm our statutory analysis in Lake Beulah" despite its abrogation by the legislature's enactment of Wis. Stat. § 227.10(2m). op., ¶19. refuses In blatant defiance of duly enacted law, the majority to illegitimately allow the § 227.10(2m) allowing supplant the law. has Majority authority the to court's take effect, superseded instead decision to In relevant part, Lake Beulah held that "DNR and a general duty to consider potential environmental harm to the waters of the state when reviewing a 22 No. high capacity well Wis. 2d 47, ¶44. capacity well authority and permit application." Lake 2018AP59.rgb Beulah, 335 The court further determined that "[t]he high permitting general duty framework to along preserve with waters of the the DNR's state provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state." Id., ¶39. According to the Lake Beulah court, Wis. Stat. ch. 281——reflecting a "delegation of the State's public obligations"——endows DNR with this extraordinary authority. ¶65 validity,9 Setting Lake aside Beulah its was questionable superseded by the trust Id. constitutional legislature's See Koschkee v. Taylor, 2019 WI 76, ¶48, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, J., concurring) ("Applying an originalist interpretation of the Constitution, some United States Supreme Court justices and several commentators have opined against the legislature relinquishing its vested legislative power 'or otherwise reallocat[ing] it,' echoing the historical understanding that '[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others.' DOT v. Ass'n of Am. Railroads, 575 U.S. 43, 73 (2015) (Thomas, J., concurring) (quoting John Locke, Second Treatise of Civil Government § 141, at 71 (J. Gough ed. 1947)) (emphasis added; alterations in original). See also Richard A. Epstein, Why the Modern Administrative State Is Inconsistent with the Rule of Law, 3 N.Y.U. J. of L. & Liberty 491, 496 (2008) (the argument 'that the Constitution authorizes the creation of independent agencies with aggregated powers of a legislative, executive, and judicial nature . . . fails so long as it depends on any form of originalism' and 'the text itself points to a system whereby the tripartite division is meant to be rigid in law'); Phillip Hamburger, Is Administrative Law Unlawful? 336 (2014) ('[T]he government can bind Americans only through laws, and only through courts with juries and judges, thus preserving the most (continued) 23 9 No. 2018AP59.rgb rollback of regulatory discretion in Wis. Stat. § 227.10(2m), which abrogated that decision. Beulah never considered the As a preliminary matter, Lake impact of § 227.10(2m) on its analysis, although the majority pretends they coalesce. The legislature enacted this statute in 2011, more than one month after the Lake Beulah court heard oral argument and only six weeks before the court released its decision. In a footnote, the Lake Beulah court acknowledged that "[n]one of the parties argue[d] that the amendments to Wis. Stat. ch. 227 in [Act 21] affect the DNR's authority in this case." Id., ¶39 n.31. In supplemental briefing after oral argument, both DNR and Lake Beulah Management District discussed the impact of Act 21 on the case, but the court simply concluded that Act 21 "[did] not affect [its] analysis" and that statutory change any further." it Id. "does not address this Obviously, the Lake Beulah court declined to consider the impact of Act 21 in declaring DNR's broad agency powers. In this case, the court addresses Act 21's impact on DNR's powers for the first time. ¶66 Regardless of the timing between Act 21 and this court's decision in Lake Beulah, the court's pronouncements in that case are contrary to the legislature's curtailment of agency powers in Wis. Stat. § 227.10(2m), which abrogated that case. It is the duty of this court "to say what the law is" lest we "risk perpetuating erroneous declarations of the law." Operton, 375 Wis. 2d 1, ¶73 (Rebecca basic conditions of freedom.')."). 24 Grassl Bradley, J., No. concurring). 2018AP59.rgb Instead of recognizing that the legislature now prohibits agencies from enforcing "any standard, requirement, or threshold" unless it is "explicitly required or explicitly permitted by statute or rule" the majority doubles down on Lake Beulah's action pre-§ 227.10(2m) so long as analysis, "[t]here is which nothing in sanctions either agency Wis. Stat. §§ 281.34 or 281.35 that prevents the DNR from considering the environmental effects required to do so." of proposed wells for which it is not Majority op., ¶18 (quoted source omitted). This is the exact opposite of what § 227.10(2m) says. of respecting action the within legislature's the bounds of decision the to Instead confine legislature's agency explicit requirements and permissions, the majority restores the status quo ante Act 21. The majority rewrites the law to give agencies a free hand to act unless the legislature explicitly prohibits the specific agency action. will of the people Such judicial activism subverts the expressed in the laws enacted by their elected representatives. ¶67 The majority is quite transparent about its motives in rewriting the law, explaining that denying "DNR the discretion to undertake the review the DNR deems necessary" would preclude DNR from "utiliz[ing] its expertise in determining how best to protect the environment[.]" omitted). policy Majority op., ¶18 (quoted sources In this stunning admission, the majority reveals the preferences motivating its decision to allow anointed "experts" to reign over the people as bureaucratic overlords, unconstrained by the democratic 25 safeguards the majority No. immobilizes in "antithetical this to decision. the The Founders' majority's vision of our 2018AP59.rgb decision is constitutional Republic, in which supreme power is held by the people through their elected representatives." Koschkee, 387 Wis. 2d 552, ¶45 (Rebecca Grassl Bradley, J., concurring). ¶68 law Preserving Lake Beulah as an accurate declaration of despite superseding legislative action overthrows the legislature as the "supreme lawmaking body" of this state. City of Milwaukee v. State, 193 Wis. 423, 448, 214 N.W. 820 (1927). As we recognized nearly a century ago: Where the Legislature has enacted statutes within the proper field of legislation, and not violative of the provisions of the federal and state Constitutions, its edicts are supreme, and they cannot be interfered with by the courts; and, where legal principles have been laid down by the courts in the proper exercise of their judicial functions, and have continued in force for such a period as to create vested rights, such principles are clothed with a force possessed by a statutory enactment, and should be recognized and applied until the lawmaking body sees fit either to abrogate or modify them. Id. at 428 (emphasis added). No one contends Wis. Stat. § 227.10(2m) violates our state or federal constitutions. If anything, the statute represents at least a partial restoration of the constitutional order. Section 227.10(2m) has the force of law but the majority violates the constitutional separation of powers by making this court a super-legislature, effectively vetoing law because it interferes with the majority's environmental policy preferences. The legislature's mandate in § 227.10(2m) conducting impact review precludes on a DNR from proposed well 26 unless an it environmental is "explicitly No. 2018AP59.rgb required or explicitly permitted by statute or by a rule[;]" a mere "general duty" or only implied "discretion" fall short of an explicit authorization. ¶69 doctrine The majority provides seems to independent suggest authority the for public DNR to trust conduct environmental impact reviews of the wells in this case, although it also recognizes that "DNR's constitutional public-trust duty stems from the legislature delegating to the DNR that obligation via Wis. Stat. §§ 281.11 and 281.12." Majority op., ¶17. Because the constitution does not mention DNR anywhere, the only mechanism by which the legislature could delegate its public trust duty to DNR would be statutory. Because neither § 281.11 nor § 281.12 explicitly require or permit DNR to exercise the legislature's public trust duties, § 227.10(2m) precludes DNR from exercising them regardless of how §§ 281.11 and 281.12 were interpreted in the past. ¶70 Article The public trust doctrine developed from language in IX, Section 1 of the Wisconsin Constitution, which provides in relevant part: The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor. Wis. Const. art. IX, § 1. Interpreting this language, this court has held that "[t]he legislature has the primary authority 27 No. to administer the public trust for the 2018AP59.rgb protection of the public's rights, and to effectuate the purposes of the trust." Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19, 293 Wis. 2d 1, 717 N.W.2d 166 (emphasis added); see also State v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) ("The primary authority to administer this trust for the protection of the public's rights rests with the legislature, which has the power of regulation to effectuate the purposes of the trust."). Accordingly, DNR possesses authority under the public trust doctrine only to the extent "the legislature has delegated to DNR the Hilton, duty of enforcing 293 Wis. 2d 1, the ¶20. state's DNR environmental does not laws." hold any constitutional authority; rather, its powers exist only insofar as the legislature grants them to DNR. ¶71 By enacting Wis. Stat. § 227.10(2m), the legislature limited its delegation of powers to DNR, which may conduct an environmental impact review only if the legislature explicitly requires or permits one. As explained, the legislature has not done so, and the public trust doctrine confers no such authority on DNR. As the Attorney General recognized, Act 21 "revert[ed]" the public trust duties the legislature previously delegated to DNR "back to the Legislature, which is responsible for making rules and statutes necessary to protect the waters of the state. The Legislature is free to grant the authority to DNR to impose any conditions the Legislature finds necessary. However, the DNR has only the level of public trust duty assigned to it by 28 No. the Legislature, and no more." 2018AP59.rgb 2016 Wis. Op. Att'y Gen. 1, ¶53 (2016) (OAG-01-16). ¶72 A faithful reading of Wis. Stat. § 227.10(2m) leads to the inescapable conclusion that the legislature abrogated Lake Beulah and curtailed the broad grants of authority previously delegated to agencies——including DNR. DNR has no explicit authority to conduct an environmental impact review for any of the eight high capacity wells at issue in this case because the legislature reviews. has not explicitly required or permitted such No statute or lawfully promulgated rule provides DNR with any explicit authority to take this regulatory action. The circuit court erred in vacating DNR's well approvals in order to accommodate such reviews and the majority errs in upholding the circuit court's mistake. * * * ¶73 The people of Wisconsin constitutionally conferred limited powers of governance across three (not four) branches of government. Extending beyond the parties to this case, the majority's decision undermines the sovereignty of the people and disturbs the equilibrium of governmental power to the detriment of the governed: Frequently an issue comes before this court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. Morrison, majority 487 U.S. patently at 699 disregards (Scalia, the 29 law, J., dissenting). impermissibly The shifting No. 2018AP59.rgb power from Wisconsin's citizens to unelected bureaucrats. The people never gave this court any authority to recalibrate the constitutional executive. powers While of doing the so may legislature accomplish vis-a-vis the the environmental protection agenda of the majority, its decision to ignore duly enacted law wounds our democracy and renders the legislature impotent to reclaim authority it imprudently delegated to the administrative state.10 The majority's decision stands athwart the liberty-preserving principle that the legislature may modify or altogether administrative terminate agencies, its as delegation subordinate of power creatures to of the legislature. ¶74 "Administrative legislature. agency's agencies are power, (Kelly, by the The legislature has the ability to withdraw an dictate how any agency extinguish the agency's power entirely." ¶189 created J., concurring) Schmidt, 39 Wis. 2d at 57). (citing is exercised, and Palm, 391 Wis. 2d 497, Wis. Stat. § 15.02 and Through Act 21, the legislature both withdrew a portion of agency power and dictated how that power is to be exercised, but the majority overrides those See Koschkee, 387 Wis. 2d 552, ¶45 (Rebecca Grassl Bradley, J., concurring) ("Transferring to administrative agencies the core legislative duty of making laws abnegates powers the people gave their elected representatives. The consolidation of power within executive branch agencies 'often leaves Americans at the[ir] mercy' endowing agencies with 'a nearly freestanding coercive power' and '[t]he agencies thereby become rulers of a sort unfamiliar in a republic, and the people must jump at their commands.' Phillip Hamburger, Is Administrative Law Unlawful? 335 (2014)."). 10 30 No. exclusively legislative choices. 2018AP59.rgb "It is not too much to say that we risk losing our democracy unless we can gain control of the agencies of the administrative state." ix. Wallison, supra, at Defying the law of this state, the majority nullifies the legislature's leaving the chosen mechanism legislature for with no taking apparent back some control, alternative but to repeal the statutes by which it has delegated its constitutional authority to make law, thereby extinguishing agency power altogether. Whether a majority of this court would respect that legislative act, must await decision. ¶75 the or instead trigger legislature's a response constitutional to this crisis, calamitous I dissent. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this dissent. 31 No. 32 2018AP59.rgb No. 33 2018AP59.rgb

Primary Holding

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