Category: Attorney General

AG Kaul Asks Congress to Strengthen Paycheck Protection Program, Other Multistate Actions

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul on May 6 joined a group of 24 state attorneys general asking the federal government to strengthen the Paycheck Protection Program (PPP). The AGs sent a letter to Congressional leadership highlighting concerns about implementation of the program, which provides loans to small businesses struggling due to COVID-19.

Concerns from Kaul and the AG coalition include PPP loans made to large, publicly traded companies and lack of transparency. To address these concerns, the AGs suggest Congress adopt several measures before allocating additional PPP funding, such as:

  • Providing stronger, explicit guidance to lenders and eligible businesses.
  • Prohibiting lenders from giving preference to certain customers.
  • Allocating a portion of future funding to minority owned small businesses.
  • Providing more flexibility and technical support to businesses.

Also this month, AG Kaul joined a bipartisan coalition urging USTelecom to further develop robocall traceback and other tools to help law enforcement address illegal robocalls; a coalition urging Congress to reauthorize the Violence Against Women Act (S. 2843/H.R. 1585); and a coalition expressing concern about President Trump’s executive order to keep meat and poultry processing plants open.

AG Kaul Withdraws Act 21 Opinion on High Capacity Wells

Posted on by Hamilton

On May 1, Wisconsin Attorney General Josh Kaul sent a letter to the state Department of Natural Resources (DNR) stating he has withdrawn an opinion from his predecessor interpreting 2011 Act 21’s effects on DNR permitting.

In 2016, former Attorney General Brad Schimel issued an opinion concluding that DNR lacks regulatory authority to require cumulative environmental impact analyses and/or monitoring wells as conditions to granting high capacity well permits under Wis. Stat. § 281.34. The Schimel opinion rests on 2011 WI Act 21, which prevents agencies from promulgating policies with the force of law without explicit legislative authority.

Per the Schimel opinion, DNR began issuing high capacity well permits without considering cumulative environmental impact. Environmental advocacy group Clean Wisconsin then challenged those permit approvals in court, arguing that a 2011 state Supreme Court decision, Lake Beulah Management District v. DNR, said DNR has the authority to preserve waters of the state under the constitutional and statutory public trust doctrines. The Clean Wisconsin case is now before the Wisconsin Supreme Court, which accepted the case last year.

In his letter to DNR Secretary Preston Cole this month, AG Kaul withdrew the Schimel opinion on which DNR was relying for the high capacity well permit approvals. The Kaul letter cites the circuit court decision in Clean Wisconsin – that court found the Schimel opinion was incorrect and contradictory to Lake Beulah.

However, it is unclear if the Schimel opinion is officially “incorrect,” as the circuit court decision has been appealed. The Supreme Court in Clean Wisconsin now has the opportunity to clarify whether Lake Beulah actually addressed the newly enacted 2011 Act 21. The Clean Wisconsin case is currently on hold at the Supreme Court.

AG Kaul Asks EPA to Strengthen PFAS Regulations

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul on April 20 joined 17 other state attorneys general in comments asking the Environmental Protection Agency (EPA) to strengthen its proposed regulations on importation of PFAS products.

PFAS (per- and polyfluoroalkyl substances) are a group of thousands of man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are “long-chain” PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

 EPA is proposing to require importers of products that contain long-chain PFAS as part of surface coating to notify EPA before importation. EPA would then evaluate the conditions of use associated with the intended significant new use of the product before manufacturing and processing could begin.

In their comments, the attorneys general ask EPA to strengthen these regulations on imported PFAS-containing products by

  1. Including the entire family of long-chain PFAS in the regulations, not just the individual PFAS chemicals specified in the proposed rule.
  2. Expanding the regulations to products that contain PFAS anywhere within them, not just within surface coating.
  3. Applying the rule to all processing of PFAS-containing products, not just imports.
  4. Removing exemptions for de minimis amounts of PFAS.

Joining AG Kaul in the comments were the attorneys general of New York, Pennsylvania, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Virginia, and Washington.

More on proposed PFAS regulation in Wisconsin.

AG Kaul also recently joined a group of state attorneys general asking EPA to rescind its policy of limiting civil enforcement in environmental actions during the COVID-19 crisis.

Wisconsin DOJ Actions on COVID-19

Posted on by Hamilton

Since the outbreak of the COVID-19 pandemic, Wisconsin Attorney General Josh Kaul has taken several actions to address the crisis. Below is a timeline of the Department of Justice’s (DOJ) response:

 March 31, 2020. DOJ, representing Gov. Evers, submitted a brief asking a federal court extend the deadline for requesting an absentee ballot and relax witness signature requirements, among other recommendations, while still keeping in person voting on April 7. Read about the outcome of the case and more election lawsuits here.

AG Kaul also warned Wisconsinites to be alert to COVID-19 marketing scams.

 March 27, 2020. AG Kaul and the Wisconsin Department of Financial Institutions warned consumers about charity scams related to COVID-19.

 March 26, 2020. AG Kaul joined 27 attorneys general in a letter to U.S. Secretary of Education Betsy Devos, seeking emergency measures to protect student loan borrowers during the COVID-19 economic downturn.

Another multistate coalition sent a letter to President Donald Trump, requesting the federal government end the ban on scientists working with fetal tissue. The coalition argued that rescinding the ban would help accelerate COVID-19 vaccine development.

 March 24, 2020. AG Kaul led a multistate coalition in sending a letter to President Donald Trump, asking the President to utilize the Defense Production Act to prioritize production of personal protective equipment and other critical items to fight the pandemic. DOJ also issued guidance about consumer rights under Wisconsin’s price gouging statutes.

 March 16, 2020. AG Kaul warned Wisconsin residents of COVID-19 scams and price gouging. DOJ also issued an advisory on Wisconsin’s open meeting laws in light of COVID-19.

 

For more information on COVID-19 in Wisconsin, please visit https://www.hamilton-consulting.com/covid-19-in-wisconsin/.

 

Read about other multistate actions by AG Josh Kaul.

 

Other Multistate Actions by AG Kaul

Posted on by Hamilton

In addition to actions related to COVID-19, Wisconsin Attorney General Josh Kaul has recently joined several multistate actions on various topics.

  • Federal border wall funding. AG Kaul, with seven other states, filed a lawsuit challenging the Trump administration’s diversion of funds from the National Guard and other sources to the construction of a border wall. The filing argues the diversion violates the federal Administrative Procedure Act.
  • T-Mobile/Sprint merger. AG Kaul, on behalf of a 12-state coalition, announced an agreement with T-Mobile to end the states’ litigation fighting the T-Mobile/Sprint merger.
  • Opioid manufacturer settlement. AG Kaul announced a $1.6 billion global settlement with generic opioid manufacturer Mallinckrodt. The funds will go to a national trust that covers opioid addiction treatment and related efforts.
  • Investigation of JUUL. AG Kaul joined 39 states in investigating e-cigarette manufacturer JUUL’s marketing and sales practices.
  • EPA lead in drinking water standards. The comments from 10 states, including Wisconsin, oppose some provisions in EPA’s proposed revised standards for lead in drinking water. Provisions opposed include a reduction in the lead service line replacement rate.
  • EPA Chemical Disaster Rule. The filing from AG Kaul and 15 attorneys general seeks judicial review of the EPA’s rule rolling back of elements in the Chemical Disaster Rule.

Federal Appeals Court Rules on ACA Individual Mandate

Posted on by Hamilton

The federal Fifth Circuit Court of Appeals ruled on Dec. 18, 2019, that the Affordable Care Act’s (ACA) individual mandate is unconstitutional. However, the court remanded the case back to the federal district court in Texas to decide how much of the rest of the ACA is unconstitutional.

In December 2018, the district court ruled the entirety of the ACA unconstitutional because it found the unconstitutional individual mandate was “essential” to the ACA. Congress set the tax penalty at zero dollars, yet left in place the ACA’s individual mandate in the federal tax reform bill in December 2017. 18 other states, led by Texas, argued that the remaining mandate, without an active tax penalty, violates the Commerce Clause of the U.S. Constitution, and Congress does not have the constitutional authority to compel citizens to purchase health insurance. (Wisconsin initially led the lawsuit, but Attorney General Josh Kaul removed the state from the lawsuit earlier this year.)

While the appeals court agreed with the district court that the individual mandate is unconstitutional, it declined to strike down the entirety of the law. Instead, the court directed the district court to determine which other specific ACA provisions are “inseverable from the individual mandate.” The appeals court ruling was 2-1, with judges appointed by President George W. Bush and President Donald Trump in favor, and a judge appointed by President Jimmy Carter dissenting.

It is expected that the case will ultimately be appealed to the U.S. Supreme Court, but likely not until after 2020.

PFAS Update: AG Holds Listening Session in Marinette, Foam Bill Passes Committee

Posted on by Hamilton

The Wisconsin Legislature and state agencies are continuing to address PFAS chemicals. Recently, Wisconsin Attorney General Josh Kaul held a listening session on PFAS in Marinette. Meanwhile, an Assembly Committee has passed a bill to address PFAS in firefighting foams.

PFAS (per- and polyfluoroalkyl substances) are man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

 

AG Listening Session

AG Kaul travelled to Marinette for two public listening sessions on Dec. 18.

In the Marinette area, Tyco and parent company Johnson Controls International began investigating PFAS in groundwater from its PFAS-containing firefighting foams in 2017. The Wisconsin Department of Natural Resources (DNR) referred Tyco to the Department of Justice (DOJ) for civil prosecution in June 2019, alleging Johnson Controls failed to report the contamination when it first detected PFAS in 2013.

Johnson Controls/Tyco are currently working with DNR on developing a full remediation plan, but the company has already set aside $140 million to address the contamination, installed treatment systems, began removing PFAS in groundwater, and provided bottled water and treatment systems to affected residents.

At the listening session on Dec. 18, Kaul said he couldn’t comment on the ongoing Tyco investigation but noted that DOJ takes environmental cases like these very seriously. The AG focused the listening session on hearing from the public how PFAS contamination in the area has impacted them.

 

Wisconsin Legislation

The Assembly Committee on Environment voted on Dec. 11 to recommend passage of AB 323, which would prohibit the use of firefighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures. DNR would determine containment and treatment measures by rule. The Assembly Committee on Environment held a public hearing on the bill on Sept. 3.

The Senate Committee on Natural Resources & Energy has also scheduled an executive session to vote on the bill on Jan. 8. 

Authored by Rep. John Nygren (R-Marinette) & Sen. Rob Cowles (R-Green Bay), the bill passed the committee on a bipartisan 8-1 vote. Rep. Gary Hebl (D-Sun Prairie) voted no, arguing the legislation does not go far enough to address PFAS.

Supporters of the bill include American Chemistry Council, American Petroleum Institute, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, and Wisconsin Rural Water Association.

Meanwhile, Wisconsin Democrats have introduced a separate bill that would circumvent rulemaking processes and require DNR to establish and enforce PFAS standards by rule for drinking water, groundwater, surface water, air, solid waste, beds of navigable waters, and soil and sediment if DNR deems it harmful to human health or the environment. SB 302/AB 321, also known as the “CLEAR Act,” has not yet received a hearing.

Looking ahead, Assembly Speaker Robin Vos (R-Rochester) told the Wheeler Report in December that bills from the Speaker’s Task Force on Water Quality will be announced in January. This bill package could include measures to address PFAS chemicals.

Continue reading about PFAS regulation in Wisconsin.

 

AG Kaul Joins Emissions Standards Lawsuit

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul has joined a coalition of states and cities seeking judicial review of the federal Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) rules related to vehicle emissions standards.

The rules amend greenhouse gas and corporate average fuel economy standards and repeal California’s waiver for its state greenhouse gas and zero emission vehicle programs. Currently, some other states also have the option to follow California’s standards. The NHTSA rules would specifically implement the agency’s statutory authority to set national fuel economy standards that preempt state programs.

The attorneys general filed a petition for review of the agency actions in federal court on Nov. 15. Read the filing.  

Other recent multistate actions from Kaul include:

  • Joining a bipartisan coalition of states urging Congress to pass legislation establishing a veteran treatment court program in the federal Department of Justice.
  • Joining an amicus brief supporting Public Service Loan Forgiveness program borrowers seeking eligibility for loan forgiveness.

Read about previous AG multistate actions.

Multi-State Actions by AG Kaul

Posted on by Hamilton

Since taking office at the beginning of 2019, Wisconsin Attorney General Josh Kaul has announced the state’s participation in several multistate actions covering various issues. The actions include comments challenging federal administration proposals, investigations into corporations, and multistate lawsuits and amicus briefs. Below is an update on notable multistate actions in which Wisconsin is participating:

 

Multistate Investigations

  • On Oct. 22, Kaul announced Wisconsin’s participation in a bipartisan group of attorneys general investigating Facebook for antitrust issues. There is a total of 47 attorneys general from across the U.S. and territories involved in the investigation.
  • On Sept. 9, Kaul joined 49 attorneys general in a bipartisan investigation of Google for antitrust issues.
  • On July 22, Kaul announced Wisconsin, among 49 other states and territories, reached a settlement with Equifax as a result of the attorneys general investigation into a 2017 data breach.

 

Multistate Lawsuits & Amicus Briefs

  • On Oct. 23, Kaul filed an amicus brief with 15 attorneys general in a Montana case regarding states’ roles in addressing pollution under the Comprehensive Environmental Response, Compensation, and Liability Act.
  • On Oct. 22, Kaul and 19 other attorneys general filed a complaint challenging three rules that make changes to the Endangered Species Act by adding economic considerations and narrowing the circumstances under which animals may be designated endangered, among other reforms.
  • On Sept. 20, Kaul joined a lawsuit challenging a National Highway Traffic Safety Administration rule preempting state-level vehicle emissions standards.
  • On Aug. 13, Kaul joined a coalition of 22 states and seven local governments in a lawsuit challenging the federal Environmental Protection Agency’s Affordable Clean Energy Rule, which repeals the Clean Power Plan. 
  • On June 12, Kaul joined an amicus brief challenging the federal administration’s use of Department of Defense funds to construct a border wall in New Mexico and Arizona. Kaul joined a coalition of 20 states in filing a similar motion in April.
  • On June 11, Kaul joined several other states in a lawsuit seeking to block the merger between T-Mobile and Sprint.
  • On May 21, Kaul joined a coalition filing a legal challenge to a federal rule that would allow health care providers to deny treatment based on the providers’ religious beliefs.
  • On May 16, Kaul filed a lawsuit against Purdue Pharma, alleging the opioid manufacturer contributed to the opioid epidemic. Four other states filed separate lawsuits against the company. Earlier this fall, Kaul declined to join a multidistrict settlement against Purdue Pharma, and the lawsuit is ongoing.
  • On May 13, Kaul joined a coalition of states in filing a lawsuit against generic drug manufacturers, alleging antitrust issues.
  • On March 5, Kaul joined a coalition of 21 states filing a challenge to a rule that would bar clinics receiving Title X grant funding from referring patients for abortion.
  • On Jan. 15, Kaul joined an amicus brief seeking to uphold the Indian Child Welfare Act.

 

Withdrawal from Previous Administration Lawsuits

  • On April 15, Kaul successfully withdrew Wisconsin from a lawsuit challenging Environmental Protection Agency regulations of air pollutants.
  • On April 2, Kaul successfully withdrew from a lawsuit challenging a Department of Health & Human Services rule that includes gender identity and termination of pregnancy in the prohibition of discrimination in health care.
  • On April 5, Kaul withdrew Wisconsin from a multistate lawsuit seeking to declare the Affordable Care Act

 

Comments to Congress & Agencies

  • On Oct. 23, Kaul joined 23 states in a letter to the Environmental Protection Agency. The comments challenged a proposed rule changing states’ authority under the Clean Water Act.
  • On Oct. 17, Kaul joined 28 states in requesting the federal Department of Education discharge federal student loans for students who attended now-closed schools operated by Dream Center Education Holdings, LLC.
  • On Sept. 24, Kaul joined a 24-state coalition opposing federal Department of Agriculture rules revising categorical eligibility for Supplemental Nutrition Assistance Program benefits.
  • On Sept. 20, Kaul joined 27 other states in submitting a letter to the Consumer Financial Protection Bureau stating concerns about a proposed rule regarding debt collection.
  • On Aug. 7, Kaul and 42 other state attorneys general urged the video streaming industry to implement policies to limit tobacco imagery in video content.
  • On Aug. 5, Kaul joined a coalition of 39 attorneys general in a letter to Congress urging legislation to remove federal regulatory barriers to opioid use disorder treatment.
  • On July 30, Kaul joined 21 other state attorneys general in urging Congress to regulate PFAS compounds. 
  • On July 3, Kaul and 15 other attorneys general sent a letter to the federal Department of Housing & Urban Development opposing a rule repealing requirements that shelters house individuals according to gender identity.
  • June 25, Kaul joined 18 other state attorneys general in submitting comments to the federal Department of Labor opposing a proposal to change the department’s interpretation of joint employment.
  • On June 12, Kaul announced that a coalition of 43 attorneys general urged the Federal Trade Commission to develop new antitrust policies, specifically related to digital platforms like Facebook, Google, and Amazon.
  • On May 24, Kaul announced he and 50 other attorneys general from U.S. states and territories submitted a letter asking the federal Department of Education to forgive student loan debt for veterans permanently disabled in connection with their service.
  • On May 8, Kaul joined a bipartisan coalition in urging Congress to pass legislation to provide marijuana-related businesses access to the federal banking system.
  • On May 1, Kaul and 40 other attorneys general urged Congress to fund the Legal Services Corporation, which provides funding for programs like Legal Action of Wisconsin and Wisconsin Judicare.
  • On April 1, Kaul and a bipartisan coalition sent a letter to the Department of Health & Human Services expressing concern about the department’s Pain Management Best Practices Interagency Task Force draft report.
  • On Feb. 18, Kaul joined multistate letters to the Federal Trade Commission on identity theft rules and to the Consumer Financial Protection Bureau on financial consumer products protections.

 

AG Kaul Declines Opioid Settlement Proposal

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul has declined to join a proposal to settle multidistrict litigation against opioid manufacturer Purdue Pharma. Purdue had reportedly reached a $10 to $12 billion settlement deal with the multidistrict plaintiffs. Kaul, along with several other state attorneys’ general, declined to sign off on the proposed settlement.

The multidistrict litigation combined claims of over 2,000 cities and counties and 22 states, including over 50 Wisconsin local governments. Plaintiffs filed the claims against Purdue over the company’s alleged role in the opioid crisis.

Both the U.S. Chamber Institute for Legal Reform and the American Tort Reform Association released reports this year on the rise of public nuisance lawsuits such as this multidistrict opioid litigation.