By M. K. Kittle in the Wisconsin Watchdog.Org
MADISON, Wis. – Attorney General Brad Schimel’s formal opinion Tuesday on the permitting of high-capacity wells in Wisconsin was ultimately more about reining in the unchecked power of state bureaucracies.
The Republican AG’s opinion gets to the heart of Wisconsin Act 21, a conservative-driven regulatory reform law that changes the administrative rulemaking process. Signed by Republican Gov. Scott Walker in the first few months of his historic first term, Act 21 restricts state agencies from promulgating administrative rules unless such authority is “explicitly conferred” on an agency by the Legislature.
Schimel effectively said the state Supreme Court was wrong in its unanimous decision confirming the Wisconsin Department of Natural Resources possessed the power to regulate high-capacity wells under the state constitution. Businesses for years have battled with the DNR and its rules on well placement, with the agency asserting it has a constitutionally mandated authority to protect state waters.
“I further conclude that neither Wis. Stat. § 281 nor the public trust doctrine give DNR the authority to impose any condition not explicitly allowed in state statute or rule. In addition, no other authority exists which permits DNR to impose the conditions enumerated by the Assembly,” Schimel wrote.
Business advocacy groups statewide applauded the attorney general’s decision, asserting it clarifies the rulemaking powers of state agencies. Environmental groups decried it.
“State agencies are defined by statute. The extent of their powers and duties are found in the laws passed by the people’s representatives and signed by the Governor,” John Holevoet, director of Government Affairs for the Dairy Business Association, said in a statement. “Although this may sound like common sense, Act 21 and the attorney general’s opinion make clear that state agencies have only those powers explicitly delegated to them by statute or an administrative rule that is adopted pursuant to explicit statutory authority.”
Environmental group Clean Wisconsin expressed its outrage over the AG’s opinion on Twitter.
“This is a HUGE step back & we can’t continue to jeopardize our groundwater like this!” the organization declared.
The attorney general’s decision looked at Lake Beulah Management District v. Department of Natural Resources in which the Supreme Court unanimously concluded in 2011, after Act 21 went into effect, that the DNR has “the authority and a general duty … to consider the impact of a proposed high-capacity well on waters of the state.”
That decision, however, has led to long delays in the permitting process, critics contend.
“Farmers and businesses are committed to complying with Wisconsin statutes and administrative rules. Today’s opinion provides greater certainty and clarity for everyone working to protect our environment, while growing our economy,” concluded Paul Zimmerman, executive director of Government Relations for the Wisconsin Farm Bureau Federation
Lucas Vebber, director of Environmental and Energy Policy for Wisconsin Manufacturers and Commerce, said Schimel’s opinion validates Act 21. The law restrains a state bureaucracy that is burying business in regulations and curtailing individual liberty.
“This opinion does not invalidate state agency regulatory authority. State agencies across the board have been lawfully delegated extensive authority,” Vebber said. “The DNR alone has 600 pages of statutory authority and nearly 5,000 pages of regulations.”
Interpretation is what has landed the state Government Accountability Board in trouble on numerous occasions. The soon-to-be dismantled political speech cop has been called out for the promulgation of unconstitutional campaign ethics rules. One plaintiff in a lawsuit described the GAB’s regulations on issue advocacy a “Frankenstein’s monster” of cobbled-together law and directives.
Assembly Speaker Robin Vos called Schimel’s opinion a “victory for the people in Wisconsin,” reinforcing that “elected representatives create the laws of our state and not unelected bureaucrats.”
“While this opinion addresses a much bigger issue within government, it also confirms that any solution surrounding high capacity wells should come from the legislature,” Vos said in a statement.
The speaker said lawmakers next session will continue to pass “meaningful and fair legislation that balances Wisconsin’s vital agricultural economy and our natural resources.”
http://watchdog.org/264951/legislature-rulemaking-act21/?roi=echo3-34589319874-35279226-78cf0137fe209a617bbe9360ae9d31cf
