Category: Current Issues

PFAS Update: Recent Regulatory Actions in Wisconsin

Posted on by Hamilton

Regulation of PFAS compounds is quickly moving forward in Wisconsin at both the legislative and administrative rule levels. PFAS (per- and polyfluoroalkyl substances) are man-made chemicals that are found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. PFAS are present in the bloodstream of 98 percent of Americans. Competing studies debate whether or not PFAS have negative health effects and, if they do, at what level they are harmful.

WCJC is part of the Water Quality Coalition, a coalition of industries, job creators, and taxpayers in the state, as well as scientists and legal scholars, which supports balanced, science-based environmental standards to regulate PFAS. Unnecessarily strict of standards would be costly to Wisconsin industry and would open up the state for frivolous lawsuits and potentially millions of dollars in liability.

 

Executive Actions

On August 23, Gov. Tony Evers signed Executive Order 40, which directs the state Department of Natural Resources (DNR) to coordinate with the Department of Health Services (DHS) and Department of Agriculture, Trade & Consumer Protection to:

  • Establish a public information website.
  • Collaborate with municipal wastewater treatment plants on screening to identify potential PFAS sources.
  • Expand monitoring for PFAS in wildlife.
  • Develop regulatory standards.
  • Modify the Voluntary Party Liability Exemption law, “which provides future liability exemptions after successful completion of hazardous substance cleanup.”
  • Assess opportunities for using natural resources damages claims under state or federal law.
  • Create the PFAS Coordinating Council among state agencies. The council’s directions include developing an action plan, developing public education protocols, identifying sources, developing treatment protocols, collaborating with academic institutions on research, and exploring avenues for funding.

 

Agency Rulemaking

In June 2019, DHS recommended a groundwater standard of 20 parts per trillion (ppt) combined for PFOA and PFOS, the two most-studied types of PFAS. DHS also recommended a Preventive Action Limit (PAL) of 2 ppt. The PAL is the point at which DNR can begin working with a regulated entity to mitigate contamination before formal enforcement action. As part of the statutory process for developing groundwater standards in Wisconsin, DHS sends these recommendations to DNR, which then must promulgate administrative rules before the standard becomes enforceable.

WCJC, as part of the Water Quality Coalition, submitted a letter and comments to DHS regarding these strict recommendations. The comments noted DHS’s preventive action limit of 2 ppt for PFOA and PFOS combined could result in the most restrictive enforceable standard in the world, potentially greatly harming Wisconsin’s economy and significantly raising the cost of residential water. In particular, such a standard would require a permit holder, including municipal utilities, industrial facilities, and energy producers, to reach near-zero discharge levels of compounds that are pre-existing in groundwater.

DNR issued three scope statements related to PFAS earlier this month. Scope statements are the first step in the administrative rulemaking process. The scope statements would:

  1. Adopt groundwater standards. (SS 090-19). Under this scope statement, DNR would promulgate the DHS standards recommendations of 20 ppt combined for PFOA and PFOS and a 2 ppt PAL. This rule would apply to all regulated facilities that may impact groundwater.
    Economic impact: DNR estimates a “moderate to significant” economic impact, ranging from $50,000 to greater than $5 million. However, other estimates of future business liability for PFAS have ranged in the billions.
    Public hearings: DNR expects public hearings to occur in November 2020.
  2. Adopt surface water quality standards for PFAS. (SS 091-19). Under the scope statement, DNR could also change Wisconsin Pollution Discharge Elimination System (WPDES) permit implementation procedures related to PFAS chemicals, including additional monitoring and new effluent limitations. Currently, DNR can address PFAS discharges in WPDES permits on a case-by-case basis. The proposed rule would set a uniform standard and procedures.
    Economic impact: DNR anticipates the economic impact to “sources of PFOS and/or PFOA…to be significant,” citing costs associated with treatment technology.
    Public hearings: DNR expects public hearings to occur in August 2021.
  3. Adopt maximum contaminant levels (MCLs) for drinking water. (SS 089-19). MCLs for drinking water would mostly affect municipal water systems.
    Economic impact: DNR estimates the economic impact of the rule to be “significant.” Treatment could cost municipal public water systems at least $25 million.
    Public hearings: DNR expects public hearings to occur in August 2021.

If the scope statements become rules promulgated by DNR, they will be enforceable against regulated entities. In Wisconsin, rulemaking is a relatively lengthy process. DNR has stated they believe this rulemaking process will take about 30 months. The scope statements are the very first step in that process.

The DNR Board is set to approve the scope statements and an initial preliminary comment period at their meeting on Oct. 23.

 

Legislation

Rep. John Nygren (R-Marinette) & Sen. Rob Cowles (R-Green Bay) have introduced legislation (SB 310/AB 323) to address PFAS contamination from fire-fighting foams. The bill would prohibit the use of fire-fighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures (as determined by DNR rule).

The bill has mostly Republican cosponsors but also includes Rep. Melissa Sargent (D-Madison), whose district includes a well in Madison that has tested positive for PFAS. Other supporters of the bill include American Chemistry Council, American Petroleum Institute, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, and Wisconsin Rural Water Association. Several environmental advocacy groups have concerns that the bill does not go far enough to address PFAS contamination in Wisconsin.

The Senate Committee on Natural Resources & Energy and the Assembly Committee on Environment each held a public hearing on the bill on Sept. 3. At the hearing, DNR testified recommending changes to the bill to strengthen the state’s authority to prevent future PFAS discharges. The DNR recommendations included:

  1. Authorizing DNR to regulate more types of PFAS-containing foams.
  2. Requiring manufacturers to clearly label PFAS-containing foams.
  3. Requiring preventative and mitigative actions for entities using PFAS-containing foams in emergencies.

DNR noted that, in their opinion, the bill does not go far enough to address PFAS from other industries and noted that another bill currently introduced in the Legislature would address their concerns: SB 302/AB 321 by Sen. Mark Miller (D-Monona), Sen. Dave Hansen (D-Green Bay), Rep. Chris Taylor (D-Madison), Rep. Stausch Gruszynski (D-Green Bay) & Rep. Melissa Sargent (D-Madison). This bill has not yet received a hearing in the Legislature.

The Democrats’ bill would 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. The bill also provides that DNR may require entities possessing PFAS to provide proof of financial responsibility for remediation of potential discharge. Additionally, the bill requires any facility under investigation by DNR to provide DNR with access to information related to transportation of hazardous waste to any other site. The bill provides 7.5 positions at DNR and 2 positions at DHS, plus $150,000 for identifying and prioritizing PFAS sources, $50,000 for a study on use of fire-fighting foam containing PFAS, $87,000 for testing landfills and leachate, and $120,000 for investigation of PFAS sources and providing drinking water.

Assembly Speaker Robin Vos (R-Rochester) has also convened a Speaker’s Task Force on Water Quality, which has discussed PFAS at several of their public hearings throughout the summer.

For more information on PFAS developments in Wisconsin, visit /pfas/.

 

WCJC and Industry Partners Submit Comments on DHS PFAS Standards

Posted on by Hamilton

Wisconsin Civil Justice Council, as part of the Water Quality Coalition, recently submitted a letter and comments to the Wisconsin Department of Health Services (DHS) regarding their strict recommended groundwater standards for two PFAS chemicals, PFOA and PFOS. If promulgated as an enforceable rule, the standards would be costly to Wisconsin industry and would open up the state for frivolous lawsuits.

PFOA and PFOS are the most extensively produced and studied of a class of chemicals referred to as PFAS (per- and polyfluoroalkyl substance), which are found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. Existing best available science does not establish adverse health effects to humans from PFOA and PFOS exposure at current levels.

DHS, along with the Department of Natural Resources (DNR) and Department of Trade, Agriculture & Consumer Protection, announced in June a recommended groundwater standard of 20 parts per trillion (ppt) combined for PFOA and PFOS. The recommendation of 20 ppt is significantly below the federal Environmental Protection Agency’s (EPA) health advisory standard of 70 ppt. EPA also recently released a draft interim guideline for groundwater standards of 70 ppt.

Wisconsin law requires DHS to use EPA values for health standards if they are available, unless there is scientifically valid technical information that was not considered when the federal value was established (Wis. Stat. § 160.13(2)(b)). However, other studies show little effect on human health from PFOA and PFOS, even at much higher exposure levels than 20 ppt. Out of 19 other states regulating PFAS, only Vermont has set a standard as strict as the one proposed by Wisconsin’s DHS. New Jersey has an interim recommendation of 10 ppt.

DHS also recommends that the preventive action limit for PFOA and PFOS be set at 10 percent of the enforcement standard in accordance with Wis. Stat. § 160.15(1)(c). At 2 ppt, the preventive action limit would be the most strict regulation on PFOA and PFOS in the world. Preventive action limits are initial regulatory limits used to inform DNR about potential groundwater contamination and minimize the level of substances “to the extent technically and economically feasible” to prevent further contamination.

Costs imposed on the regulated community by these recommended standards could be significant. With no evidence of adverse human health effects resulting from PFOA and PFOS exposure, the recommended standards would not provide public health protections and instead would impose significant, unnecessary costs on Wisconsin businesses.

DHS held a comment period on the guidance documents related to these recommendations for just one day earlier this month. Under the Ch. 227.112 guidance documents requirements created in the 2018 extraordinary session legislation, comment periods must be 21 days, unless the governor approves a shorter period. In this case, the governor approved just a one day comment period on the PFOA and PFOS standards.

The DHS recommendations now must go through the DNR rulemaking process, with more opportunities for public input, before they are enforceable. DNR has not yet released a scope statement to begin promulgating the rules.

 

Tort Filings in Wisconsin Increase in 2018

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Source: Wisconsin Circuit Court Statistics

Despite a general decrease in tort filings in Wisconsin courts over the past decade, tort filings increased slightly in Wisconsin in 2018. 5,996 tort cases were filed in 2018, 58 more than in 2017 but still 130 less than in 2016 and over 500 cases less than the average number of tort cases filed from 2018 to 2004 (the first year for which data are available).

As is typical, most tort cases filed in 2018 were personal injury cases related to automobile accidents (63 percent). The 3,757 auto personal injury cases filed in 2018 is 119 less than in 2017.

Other personal injury cases made up 16 percent of tort filings in 2018, and property damage cases made up 13 percent. Products liability, medical malpractice, wrongful death, and intentional torts altogether made up the remaining 8 percent of cases filed. Most categories did not change much from 2017 to 2018, but property damage cases increased from 614 cases in 2017 to 785 cases in 2018.

Source: Wisconsin Circuit Court Statistics

The percent of cases settled without going to trial decreased by 6 percent from 2017 to 2018. The percent of settlements in Wisconsin tort has cases has generally been on the rise since a significant bump in 2011. The number of cases going to jury trial has remained steady over the past decade at 3 to 4 percent.

 

Wisconsin overall has a positive legal climate that keeps these tort filing numbers in a reasonable range. In its 2018-19 “Judicial Hellholes” report, American Tort Reform Association recognized Wisconsin as a “Point of Light” for the 2018 Wisconsin Supreme Court decision upholding limits on noneconomic damages in medical malpractice cases and civil litigation reforms in 2017 Act 235.

Lead Paint Case Moving in Eastern District of Wisconsin

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This month, a federal court held a trial relitigating whether plaintiffs can hold companies liable for marketing and manufacturing lead paint before it became illegal in 1978. The plaintiffs’ case, currently in the Eastern District of Wisconsin under Milwaukee Judge Lynn Adelman, uses Wisconsin’s unique risk contribution theory of liability to allege defendant manufacturers caused their injuries, despite their inability to specifically link defendants’ products to their injuries.

 

Burton v. American Cyanamid et al.

The plaintiffs in this case allege they were injured from ingesting lead paint when they were children. They argue that, although they cannot identify the specific manufacturer of the paint that harmed them, the defendant lead paint manufacturers are liable under a risk contribution theory of liability. The risk contribution theory allows plaintiffs to hold defendants liable if they produced a harmful product that contributed to the general risk of injury to the public. Under the theory, plaintiffs no longer have to establish causation between a particular defendant and their injury.

The defendants argue the plaintiffs have not suffered actual injuries and, even if they did, they have no evidence linking them to specific manufacturers’ paints. Furthermore, the negligence of parents who failed to supervise the children who ingested lead paint chips and landlords who allowed lead paint to deteriorate were an intervening superseding cause of the plaintiffs’ injuries. Plaintiffs then failed to mitigate their damages with proper medical treatment for elevated blood poisoning levels. Even if the defendants did not properly warn of the risks of ingesting lead paint, the plaintiffs have not proved the failure to warn was a cause of their injuries.

 

Background on Lead Paint in Wisconsin

In 2005, the Wisconsin Supreme Court ruled in favor of plaintiffs using risk contribution theory in a similar case (Thomas v. Mallet). The decision allowed plaintiffs to hold manufacturers liable for contributing to the overall risk of lead poisoning, whether or not their paint specifically caused the injuries in question. The burden is placed on lead paint manufacturers to prove they did not produce or market lead paint during the relevant time period or in the geographical market.

In another case in 2010, a federal judge in the Eastern District ruled against plaintiffs, arguing it violates due process rights to hold manufacturers liable when plaintiffs cannot determine which manufacturer’s paint caused the injury. However, the 7th U.S. Circuit Court of Appeals reversed the decision in Gibson v. American Cyanamid (2014), allowing plaintiffs in Wisconsin to move forward with the overall risk contribution theory presented in this case.

Wisconsin is currently the only state to recognize risk contribution theory for lead paint poisoning. Meanwhile, some claims in other states, including Wisconsin, are going forward based on public nuisance theory.

 

Extraordinary Session Litigation Update

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Several ongoing cases seeking to void the 2018 extraordinary session legislation are moving through Wisconsin and federal courts. This article provides background on each of the cases and updates on where each of the cases are in the legal process.

League of Women Voters v. Evers

Status

6/21/19: In a 4-3 decision the Wisconsin Supreme Court ruled the Legislature’s 2018 extraordinary session was constitutional, upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.  

5/15/19: The Wisconsin Supreme Court held oral arguments in League of Women Voters v. Evers. 

4/30/19: In a 4-3 decision, the Wisconsin Supreme Court restored the 82 appointments that Gov. Tony Evers had rescinded under the initial circuit court injunction.

4/15/19: The Wisconsin Supreme Court accepted the League of Women Voters’s petition to bypass the Court of Appeals. The Supreme Court will hold oral arguments on May 15.

4/15/19: Gov. Tony Evers filed a brief in opposition to the Legislature’s motion for emergency temporary relief.

4/10/19: The Legislature has filed a motion asking the Wisconsin Supreme Court to take original jurisdiction over the case or, alternatively, to immediately reinstate the rescinded appointments.

4/9/19: The appeals court denied the Legislature’s motion to enforce the stay, arguing Gov. Tony Evers’s withdrawal of the appointments was valid because the governor had the authority to rescind the appointments while the temporary injunction was in place.

4/3/19: The plaintiff League of Women Voters petitioned the Wisconsin Supreme Court to bypass the Court of Appeals, arguing the case presents novel questions of state constitutional law, and only the Supreme Court can provide a definitive resolution.

4/1/19: Due to the disagreement between Gov. Tony Evers’s administration and the defendant legislature as to whether the appointees who had been rescinded are now reinstated, the legislature filed an expedited motion to enforce the court of appeals stay after the administration prevented appointees from returning to work the day after the court issued the stay.

3/27/19: The Court of Appeals District III has issued a stay of the temporary injunction issued by a Dane County circuit court. The Dane County judge had ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety. The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Background

The plaintiffs argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Therefore, the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

SEIU v. Vos

Status

10/21/19: The Wisconsin Supreme Court held oral arguments in SIEU v. Vos.

6/11/19: The Wisconsin Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction issued by the Dane County Circuit Court. However, the Supreme Court left in place the injunction on Act 369 provisions that would have rescinded improperly promulgated guidance documents on July 1, 2019. Additionally, the Supreme Court stayed proceedings on the case in the lower court, cancelling the trial on guidance document provisions of Act 369 set to begin in Dane County on June 12. Read more. 

4/19/19: The Wisconsin Supreme Court assumed jurisdiction of this case, several weeks after a second Dane County judge issued a temporary injunction preventing enforcement of some extraordinary session legislation provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant legislature had also appealed this injunction, but the court of appeals had not provided a ruling before the Supreme Court assumed the case.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU circuit court order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU circuit court judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

Background

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the extraordinary session laws are an unconstitutional violation of the separation of powers doctrine.

According to the plaintiffs, Article V of the Wisconsin Constitution gives the governor the exclusive power to execute laws. Furthermore, Article V guarantees that one branch may not interfere with another branch’s powers. The plaintiffs allege that extraordinary session provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional powers. Furthermore, committee oversight without opportunity for a governor veto violates constitutional separation of powers.

The defendant legislature argues that the Wisconsin Constitution explicitly allows the legislature to prescribe the powers of the attorney general. Furthermore, Wisconsin case law has interpreted the Constitution as a fluid rather than rigid political design of separate branches of government.

Democratic Party of Wisconsin v. Vos

Status

The Democratic Party of Wisconsin (DPW) has filed a complaint in the U.S. District Court Western District of Wisconsin seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. Parties are continuing to brief the case, and oral arguments will be held on April 26.

Background

The complaint alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

D.C. Climate Change Litigation to Allow for Third Party Litigation Financing

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Earlier in March, the Washington, D.C. Office of the Attorney General announced it is seeking outside counsel for a climate change investigation – and would allow attorneys to engage in third party litigation funding in the process.

D.C. Attorney General Karl Racine tweeted on March 15 a solicitation for outside legal counsel for climate change litigation, specifically an investigation into ExxonMobil for potential violations of D.C.’s Consumer Protection Procedures Act. (Note that D.C. already has a full-time lawyer working on climate change, hired through a grant program funded by Bloomberg Philanthropies and the New York University School of Law’s State Energy and Environmental Impact Center.) Lawyers hired for this climate change project would work on contingency fee arrangements for up to $25 million. Additionally, the contract includes provisions allowing for attorneys to engage in third party litigation funding to pay for up-front litigation costs. If the attorneys prevail in litigation, third party investors would receive a portion of D.C.’s award.

This type of third party litigation financing allowed by the D.C. solicitation leads to questionable claims, prolonged settlements, and the skirting of ethics rules as investors unrelated to the underlying issues of the case seek to maximize monetary awards. Third party litigation financing disadvantages defendants unaware their opposition is being funded by an unnamed third party and plaintiffs who lose control over decision making in their own litigation. Furthermore, in this case where the D.C. government is the plaintiff, third party involvement would reduce the amount of any awards dedicated to programs benefitting taxpayers.

Wisconsin led the nation on litigation funding transparency by passing 2017 Act 235 last session. The legislation provided that that, unless stipulated or ordered by the court, a party shall provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee for representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgement, or otherwise. Read more about Act 235 here.

Meanwhile, the U.S. Chamber Institute for Legal Reform (ILR) is calling for third party litigation funding transparency at the federal level. ILR also recently issued reports detailing concerns about the growth of public nuisance lawsuits seeking to hold individual businesses accountable for the global issue of climate change, similar to the D.C. investigation.

Institute for Legal Reform Issues Reports on Rise of Public Nuisance Lawsuits

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The U.S. Chamber Institute for Legal Reform (ILR) recently issued two reports analyzing the rise of public nuisance lawsuits by municipalities. The papers address the history, issues, and potential solutions to the rise of these types of lawsuits, which seek to hold private businesses liable for broad issues including lead paint, contaminants such as PFAS and PCBs, opioids, and even the global issue of climate change. Plaintiffs are using an ever-broader “public nuisance” theory to support their claims.

The first ILR report, Mitigating Municipality Litigation, focuses on opioid, climate change, and data privacy lawsuits. First, the report analyzes how municipal lawsuits have increased in recent decades. The report points to the “big tobacco” settlements of the late 1990s as an example of the ineffectiveness of municipal lawsuits. Municipalities are incentivized by the prospect of large settlements like the tobacco settlement and what are perceived as low risk contingency fee arrangements with private plaintiff attorneys. However, settlement money does often not actually go to recovering legitimate municipal costs or helping actual injured victims.

The report describes further issues with these types of lawsuits. With thousands of local entities able to sue individually, municipal litigation deprives defendants of certainty and finality and can prolong settlements, increasing costs and delaying implementation of remediation programs.

Furthermore, municipalities who use outside plaintiff attorneys reduce public accountability. As the report states, contingency fee arrangements with outside counsel “reward aggressive, duplicative litigation that forces large, rapid settlements” to the benefit of plaintiff attorneys, not municipalities, victims, or defendants.

Finally, the report discusses several ways states can disincentivize municipalities from filing these types of lawsuits and gives examples of states with statutes already in place. Solutions include:

  • Restrict municipalities’ authority to sue. The report notes that a now repealed Wisconsin statute once prevented municipalities from bringing public nuisance lawsuits.
  • Require attorney general approval of municipal lawsuits.
  • Codify the municipal cost recovery rule.
  • Restrict municipalities’ ability to hire outside counsel, cap contingency fees, and impose other transparency requirements.
  • Ban municipalities from filing lawsuits against certain industries.
  • Enter into state level settlements that waive municipal claims.
  • Narrow the definition of a “public nuisance” claim and limit other causes of action.
  • Shorten the time period in which municipalities may file complaints. The report highlights Wisconsin’s statute of repose in its products liability act.
  • Bar recovery when the plaintiff also contributes to the nuisance.
  • Require plaintiffs to prove specific damages.
  • Restrict courts from hearing certain types of claims.

 

The second ILR report, The Misuse of Public Nuisance Actions, analyzes how public nuisance theory has expanded beyond its traditional scope and argues legislatures, not courts, should decide how to remediate large public crises like global warming, the opioid crisis, and lead paint.

First, the report overviews the history of the public nuisance tort and discusses cases that have created precedent for public nuisance claims by municipalities. The discussion notes a Wisconsin court of appeals lead paint decision City of Milwaukee v. NL Industries. The appeals court in this case ruled against lead paint manufacturers and in favor of the city’s public nuisance argument, holding that evidence attributing paint to specific manufacturers was unnecessary because use of the paint and advertising for the paint in the city was a community-wide public health nuisance.

The report then discusses emerging public nuisance litigation in the areas of mortgage lending, PCBs, and opioid manufacturing and how municipalities are circumventing traditional limitations on the public nuisance tort to give standing to their claims.

Overall, the report argues that municipal public nuisance lawsuits are an inappropriate venue to create public policy. Instead of courts, the legislature and agencies should determine public policy solutions to widespread issues like environmental contamination and the opioid crisis.

 

The American Tort Reform Association also issued a report on public nuisance lawsuits earlier this year.

DPW Files Extraordinary Session Challenge

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The Democratic Party of Wisconsin (DPW) has filed a complaint seeking to declare the 2018 extraordinary session legislation in violation of the U.S. Constitution. The complaint, one of several challenges to the extraordinary session, alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

The complaint is the first federal challenge to the extraordinary session legislation. Other challenges in state courts argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution (League of Women Voters v. Knudson) and that the legislation violates the state Constitution’s separation of powers principles (Service Employees International Union v. Vos).

Evers Supports Unions in Act 369 Challenge

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Gov. Tony Evers has filed a motion asking the Dane County Circuit Court to grant a temporary injunction on several provisions of the 2018 extraordinary session legislation. The plaintiffs in this challenge include a coalition of labor unions and state Sen. Janet Bewley (D-Mason). Evers, who is a defendant in the lawsuit, argues that the plaintiffs are likely to succeed in their claims that provisions of 2017 Act 369 and 2017 Act 370 are unconstitutional. Note that Evers is also seeking to repeal the legislation in his 2019-21 budget proposal.

Evers’s brief claims that those provisions violate constitutional separation of powers principles by interfering with the governor’s authority to interpret the law and to prosecute cases on behalf of the state via the attorney general. The brief further argues the increased legislative oversight of agency decisions creates an unconstitutional “legislative veto” and violates constitutional bicameralism and quorum requirements.

Specifically, Evers’s brief supports the plaintiffs’ challenge of Act 370 provisions that require legislature approval of agency requests to the federal government and Act 369 provisions that

  • Create a definition and public transparency requirements for agency guidance documents.
  • Require the Department of Administration to send notice to the Joint Committee on Legislative Organization (JCLO) of any proposed changes to security at the capitol. JCLO then holds a 14-day passive review period on the proposed changes.
  • Require a Joint Finance Committee (JFC) 14-day passive review period for any new enterprise zone proposed by the Wisconsin Economic Development Corporation.
  • Allow the legislature to intervene in an action challenging the constitutionality or validity of a statute.
  • Shift the authority to approve the attorney general’s compromising or discontinuing an action from the governor to JFC.
  • Require JCLO authority for the attorney general to submit to JFC a settlement plan that acknowledges the unconstitutionality of a statute.
  • Give JCLO the authority to acquire office space for legislative offices or legislative service agencies.
  • Allow the Joint Committee for Review of Administrative Rules to suspend a rule multiple times.

In addition to what the plaintiffs are challenging, Evers suggests the court place an injunction on Act 369 sections that

  • Require agencies to cite statutes supporting any interpretation of law they publicly provide.
  • Allow JCLO to intervene in cases involving the state and in other matters.

Note that Evers does not challenge the Act 369 provision codifying the recent Supreme Court decision in Tetra Tech v. DOR that eliminated the practice of courts’ deference to agency interpretations of law.

This case is one of several challenges to the extraordinary session legislation enacted in December 2018. Another lawsuit from the League of Women Voters, Disability Rights of Wisconsin, and Black Leaders for Organizing Communities argues that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11). The Democratic Party of Wisconsin recently filed another challenge alleging that the legislation violates the U.S. Constitution.

 

Complaint Filed Seeking to Declare Extraordinary Session Legislation Unconstitutional

Posted on by Hamilton

A coalition has filed a complaint seeking to deem the legislature’s 2018 extraordinary session legislation unconstitutional and unenforceable. The complaint argues that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The plaintiffs’ coalition includes the League of Women Voters of Wisconsin, Disability Rights Wisconsin, Black Leaders Organizing for Communities, a heavy equipment operator and union member, a former Department of Natural Resources attorney, and a former Department of Justice attorney. Plaintiffs claim they are harmed provisions of the legislation including: new voting requirements, the elimination of illegal guidance documents, the elimination of judicial deference, the requirement that the attorney general deposit settlement funds into the general fund, and the legislature’s authority to intervene in attorney general actions.

However, a recent memo from Wisconsin Legislative Council to Assembly Speaker Robin Vos (R-Rochester) plainly states that convening an extraordinary session does not violate the Wisconsin Constitution. The constitution states that each house of the legislature can determine its own rules for proceedings (Wis. Const. Art. IV § 8). The rules for the 2017-18 session proscribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Furthermore, the Wisconsin Supreme Court generally defers to the legislature on issues of legislative procedure (see State ex rel. La Follette v. Stitt, 114 Wis. 2d 358 (1983)). The complaint argues that since the rules were enacted by joint resolution, not a bill, they do not have the force of law allowing the legislature to meet according to Art. IV, § 11.

The Joint Committee on Legislative Organization has approved hiring outside counsel to defend the legislation.