All right.
Harry.
Wisconsin Supreme Court is now in
session.
That's just an acting good
presiding.
Your silence.
Is commanded.
Must have forgotten something.
Glasses.
Very important.
Where'd she go? She was just a
hidden.
Good morning.
This morning we have
41st case, 22, AP7.
And Wisconsin
Manufacturers and Commerce Inc
versus the Wisconsin Department
of Natural Resources.
Could we start with your
appearances?
Morning.
These are from time the virus.
And I'm joined today by.
All right. Good morning.
The lineup that I have just
to make sure we're on the same page.
25 minutes followed by
15 minutes and 15
minutes and then back for five
minutes in rebuttal.
Correct.
All right. Very good with that.
Please proceed.
Madam Chief Justice, and may it
please.
For nearly 50 years, DNR
and tens of thousands of
Wisconsinites have successfully
used the spill law to protect
our environment and public health
against discharges of harmful
contaminants.
The spill law has worked so well for
decades, precisely because
the legislature broadly
defined the hazardous substances
that discharges must report
and cleanup, namely
those that, quote,
may pose a substantial
present or potential
hazard to human health or the
environment.
This case involves an ordinary
application of that standard.
Leather rich wanted a valuable
spill liability exemption,
so it investigated
its property, discovered Pufas,
among other things, and reported
this to DNR.
DNR then asked the rich
to address this discharge, which
undisputedly poses a public
health hazard.
Yet respondents insist that DNR must
ignore this harmful force
discharge and indeed many
other kinds of harmful discharges
because no administrative rule lists
all hazardous substances covered
by the spills law.
Respondents position would
fundamentally rewrite the spills law
and cause two serious consequences
that I just want to address right
now.
First, it would greatly
hamstring DNR ability
to protect public health and the
environment.
Harmful spills like leather riches
would not just vanish.
Instead, they would remain in the
environment.
Unless and until DNR
can promulgate rules,
something that would very likely
require further legislative action,
which is a point I want to return to
later.
Second, respondents
position would seriously weaken
the entire executive branch's
core power to interpret
and execute the law.
Virtually all statutes require
interpretation before agencies
can administer them.
If agencies cannot administer
laws like this one without
rulemaking, executive branch
activity would grind to a
halt.
Counsel your principle brief doesn't
address section 227
.10 of
the Wisconsin statutes, which says
each agency shall promulgate as
a rule each statement of general
policy and each interpretation
of a statute which is specific,
which it specifically adopts
to govern its enforcement or
administration of that statute.
Doesn't that apply here?
So I think it's important to read
that provision in context
with the more recent guidance
document definitions that the
legislature added to the statutes.
Because I think when you contrast
those two statutes, to me
it becomes very clear that
what's going on here is
simply explaining how it intends
to apply the law, which again,
the statutes are very clear to
constitute guidance documents.
And I'd point you to two start to
two provisions.
First to 27.03
A which defines
guidance documents in two
very similar related ways,
but I'll articulate both of
them.
Guidance documents, quote, explain
the agency's implementation of the
statute and alternatively,
guidance documents provide guidance
or advice with respect
to how the agency is likely
to apply a statute it enforces.
So that's statute one.
Statute two is to 27.05,
which to be sure was invalidated
in the SEIU case, but I think still
provides helpful context
in terms of what is a guidance
document, what is a rule?
So two 2705
required past tense
agencies to identify support
for, quote, any interpretation
of law that the agency
makes in guidance documents.
And so I think those two provisions
make clear that
there are many, perhaps most
occasions in which when the agency
explains how it
intends to interpret and apply
a statute, it's creating a guidance
document. And that is something that
is not a rule. And I think another
way to look at this is to examine
Justice Kelly's writing in the SEIU
case, where he's very clear,
I believe this is paragraphs
around 98 to 1 zero
eight, somewhere in that range.
But in paragraph one of six,
Justice Kelly writes
guidance documents, quote, explain
statutes or provide guidance
or advice about how the executive is
likely to apply them.
They contain the executive's
interpretation of the laws.
Then what's a rule?
Then what's the rule?
Where do we draw the line between
guidance and a rule?
Because the legislature is
supposed to enact the laws,
the rules, if you will, that
govern society.
And that's the complaint here
that is being made
by the regulated community.
We don't know what the government
is going to do with this law.
And perhaps we can point the finger
at the legislature and say, stop
drafting this very broad legislation
and ceding your power to the
executive branch to fill in all the
details and actually make the rules,
even though the the tution says
that's supposed to be what the
legislature is doing.
But I'm struggling
with your interpretation of
these statutes to see
the distinction between guidance and
a rule, because the
executive branch, I think you would
agree, can't do
something different, can't
create law that
the legislature hasn't
sanctioned, if you will.
So so what's the difference in your
mind between guidance
and a new law in the guise
of a rule?
Well, I think the primary difference
and this is a definitional one
in a sense, is that rules themselves
have independently the force of
law and.
Science does not.
And I think what that means in this
context and I think an example might
be helpful.
So consider the spill law
and a DNR enforcement
action they're under.
And we actually don't have to
imagine a hypothetical here.
We have the Johnson Controls case
that's pending.
And what you can see in that case is
when DNR wants to
enforce against a violation of the
spill law, it doesn't
say, for instance, Johnson
controls you violated.
You know, the statement that we
posted on our website.
It says, we think p force or
hazardous substances.
No. Instead,
DNR files a complaint that says
Johnson controls you violated to 90
to 11 sub three.
You violated the statute itself.
A rule violation will look very
different. A rule violation would
come in the form of DNR pleading,
you know, a specific code provision
that someone has violated.
And they'd say, you can't do that.
That code provision has the force of
law. You can't violate it.
There's a fundamental distinction,
again here when the agency simply
interprets a statute
and enforces its interpretation
of that statute, what has the force
of law is the statute itself.
Not the agency's interpretation.
And of course, that's tested
in an enforcement action.
If someone disagrees with the
interpretation, it's obviously up
to the judiciary to say who's right.
And that, I think, is the
fundamental reason why
if there's any category of
interpretations that constitute
rules and I'll talk more about that,
it has to be a very, very narrow
one. And I think what this court
has recognized is
only in the context
of changes in interpretations.
Do you do you really have a problem?
What you can see is
in really almost
every single case that this court
has considered on the on promulgated
rulemaking topic, you know, all the
way back to Frankenthaler
and Berry Labs, the very old cases
never did this court say and those
are cases where they found a non
promulgated rule.
But in none of those cases did the
court go on to say agency,
you cannot act under the statute
until you promulgate a rule
that embodies your interpretation.
That was never what the court said
in those old cases.
They said, well, there's a non
promulgated rule, but agency, you
know, go back and do it again,
Go back and make the same
evaluation. And I'll give you an
example. So I think one
good case that I in
retrospect regret not discussing
more in our brief is Wisconsin
telephone versus Department
of Industry, Labor and Human
Relations.
That's at 68 West second 345.
And what was going on there is
Diller was considering
termination, I believe.
And the allegation was
that it was a sex discrimination
because I believe
the woman was pregnant.
And Diller basically decided
pregnancy status counts
as a form of sex discrimination
under the statute.
And the question was presented to
the court, is that a rule?
Is that an UN promulgated rule?
I believe the guidelines
that Diller had written down
that said, you know, pregnancy
status counts.
And what the court said was
in this case, we view that
as a rule that should have been
promulgated.
But what was the result?
Not that the agency had to stop
and not enforce
the sex discrimination statute until
rules had been promulgated, which
would be the result.
I think if two 2710 one
were read as broadly as they say.
Instead, the result was a remand
to the.
To the agency.
And so I'll just read you a couple
of excerpts that I think are
really precisely Respondants
position here. That's that's
rejected in Wisconsin.
Telephone.
Again, there
the the the employer
argues that if the guidelines are
invalid, then the policy embedded
in the guideline is also
unenforceable, which I think
would reflect the position that
they're articulating, which is that
if there's no rule,
you basically can't enforce the
statute at all.
And what the court said, the court
rejected that argument.
It said failure to file the
guideline as a rule, did not deprive
the department of the authority to
decide. Contested cases dealing with
pregnancy leaves went on to say
it is within the agency's power to
reach the same result under
the applicable statute and remanded
for further consideration.
And that's really the pattern in
most of these cases, virtually all
of them. You know, the court may
find it on promulgated rule, but it
will remain to the agency to do it
again and again.
The reason is
these interpretations, they just
they don't have the force of law.
Again, the agency cannot come in
and say, my word
is final. I think that's a
fundamental misconception that we
have here.
And the respondents position, I
don't think they say I don't.
Think they're saying that, though.
Counsel and I'm going to interrupt
you there because I want to explore
this point with you.
The the argument from the regulatory
regulated community is here you have
leather, which they were cooperative
with. D and are they actually
reported without being told
to do so, Right.
The existence.
Of the pea fuzz.
So you don't have somebody who is
trying to avoid the law.
Their principal complaint, as I
understand it, is they don't know
what it is. And the the government's
counter is, well, you have to figure
it out for yourself.
But do you see how unsatisfying
that is to the regulated community?
Because they have to figure out
what a vague, broadly written
statute means when they have
the government agency saying
it means this, you must do
this, there's a threat of fines
against them.
So you're saying it doesn't have the
force of law, but they're taking
a huge risk, aren't they, Counsel?
If they don't follow the directives,
which is how I read the
the. Letters and communications
they received, whether it's posted
on DNR website or if it's a letter
directly to an individual regulated
party.
And it feels like, you know, the
goalpost is shifting.
And I understand the argument.
Over, you know, Lamar and other
cases. Well, that's when there's
been a change in the interpretation.
But from the regulated communities
perspective, it is a change
because in the past those weren't
regulated or restricted
or deemed to be hazardous
substances, and now they are.
So the counter to your argument
that, well, there hasn't been a
change in interpretation.
In other words, the agency hasn't
flipped its position.
Is a bit unsatisfying because.
They have in fact changed their
position. They're now saying.
Be for us our hazardous.
Well, I just want to start on that
last point you make, because I do
think it's an important one.
I think there has to be a
fundamental difference between a
case like Lamar
in which at one point the agency
expressly tells the regulated
community.
We think the statute means X,
and then at a later date it
reverses course and says
we think the statute means not X.
I think that is that.
180 degrees shift in what
the agency expressly tells
the public is
what was concerning to the court
in school way in Lamar.
I think it has to be a fundamentally
different situation when an agency
for the first time is presented
with a new set of facts.
This happens all the time.
I mean, the legislature crafts
regulatory standards that are
general. They can't conceivably
apply or.
In the statute enumerate and
articulate every single possible
application of the statute.
So this happens all the time.
An agency has a general regulatory
statute that sets out a standard
and it's presented with new sets of
facts. You know, does this new
activity fall within the
statutory standard?
And that
I don't think can be fairly
characterized as a change.
The agency has never taken a
position on this issue.
It's never seen this issue because
we acknowledge there's scientific
progress incorporated into this.
And so when the DNR first
and the scientific community,
you know, first began learning about
P, for us, that's a new
application of the statute for the
first time. I think characterizing
that as a change is just
not accurate.
And, you know, if
it were the case that.
Agencies whenever they confront
a new set of facts to which a
statute should be applied,
would have to promulgate a rule
before it could confront
that new factual scenario,
which I do think is Respondants
position here.
That's a serious problem for the
executive branch. I think as this
court recognized in SEIU and Justice
Kelly's opinion that if the
executive cannot
interpret the law, understand
what the law means, and then
actually execute the law
in accordance with that
interpretation.
You know, the executive branch can't
do its job. I mean, that that is the
executive's most basic job.
I do have a number of responses on
the notice issue that I want to get
to, but no, please.
I want to before you leave that
point, I want to go back to to
27.10,
because there's no reference
in that statute to a change
in the agency's position.
It says the each agency shall
promulgate whenever it specifically
adopts an interpretation
of a statute.
So perhaps the
cases have rewritten that statute,
although I was part of the Lamar
Court, and that was not my intent.
But we won't get into that.
But do you think that
the the court has rewritten
someone to suggest that
there has to be a change?
Because that's nowhere in the text?
I wouldn't say it's rewritten sub
one. I think what this court has
implicitly, we don't.
Have the power to do that.
The course, of course.
I think what the cases bear out and
again, I would point you to the
guidance document definition, which
I do think is very important to
2710 sub one must
mean something quite narrow.
And that I
think has to be so it says
specifically adopted to govern the
enforcement of a statute.
So I think right there we have an
indication that it's some
narrower subset of activity
than simply thinking about what a
statute means, telling the public
and then enforcing in that manner.
It has to be a specific adoption
that governs the the
administration of the statute.
And you can see that in cases like
Colvin, for instance,
in which the Department
of Health Services,
in administering a Medicare Medicaid
benefits provision,
had that, I think turned
on essentially
how functional
the individual was in terms of day
to day activities.
It was I think it was sort of like a
the statutory standard was very
general. And what DHS did
is it issued this
booklet that basically said we read
this as one third
if this individual is incapacitated,
don't quote me in the language more
than one third of the days in a
month they qualify
for this benefit under this general
statutory standard.
And so that independent standard
that the agency had had written down
and when making benefits
determinations, it pointed to that
to make the determination that
I think is what the court has seen
as interpretations
that may carry the effect of law.
Again, an independent standard
apart from the statute, which again
is not what we have here.
Every statement that you see
in which that they point to, in
which DNR says conveys to
the public, we think P
or hazardous, you should probably
clean them up under the spills law.
They immediately reference the
statute.
You know, they say to 9211
covers hazardous substances.
Here's the definition to 92, a one
sub five.
So it's very clear that when in this
case, DNR is
explaining its view of what the
spill law requires, it's
pointing to the statute itself.
It's it's just saying here's the
statute, here's how we read it.
Regulated parties can disagree.
They can say we don't think it's
hazardous and we'll
fight that out in an enforcement
action if we have to.
I think it's telling here.
This is one of the reasons I have a
hard time understanding
this notice issue.
Really two reasons.
One is that,
you know, leather rich knew it was
subject to the spills la.
The rich knew that it had
potentially discharged hazardous
substances well before
they had any contact with the
department. They installed an
impermeable and permeable barrier.
So, I mean, they knew that there
were chemicals being dumped.
So it's not as if they were not
on notice of this law.
Two, they they report it like you
said, they voluntarily report it.
And three, there again, is
no dispute here
that the previous discharge
is hazardous, actually
satisfies the statutory criteria.
So it's.
Fairly difficult for me to
understand how there's
truly a notice issue
when there's no argument
that I've seen that this
P five discharge actually doesn't
fall within the statutory standard.
So attorney, off your your time's
ticking by really quickly.
So I just want to ask you a
I want to get your thoughts about
this. Let's suppose the court would
require the DNR to undertake
rulemaking to designate substances
as hazardous.
Would the legislature be able to
veto those rules?
Well under the current scheme, yes.
I mean, obviously in two days
have another argument that will.
Well all that into some question but
under the current scheme.
That's correct.
So tell me what you think that would
do for parties trying to comply
and that level of uncertainty, would
that impact that?
Well, I think that's yes, I mean,
it would negatively impact
regulated parties.
And I understand
why the rich here says, well, it's
it's a burden on us to have to clean
up the pie for us.
But I think you'll see the reason
this all happened is because
there was a property transaction
whether Rich wanted to sell the
property and in ordinary commercial
transactions, the buyer
doesn't want to buy contaminated
property.
And so, you
know, if we accept this argument
and essentially spill's law
enforcement comes to a halt until
rulemaking is completed.
It's not clear to me how that
benefits the regulated community.
I mean, if council have these
contaminants just sitting in,
they're sitting in the ground,
someone's going to want them cleaned
up one way or the other.
I just have maybe two quick
questions if I
want to make sure I understand your
argument. Is your argument on the
interpretation piece that
what's going on here is not really
interpretation of the statute,
but application of it?
Or is your argument that it is
interpretation?
But we need to somehow,
you know, interpret interpretation
narrowly?
I think the latter.
I mean, it is an interpretation.
I mean, it's it's you know, you can
have sort of abstract
interpretations or
applied to specific facts.
It is an interpretation of the
statute. What I would say is two
2710 one needs
to be interpreted narrowly,
both as a matter of constitutional
avoidance, because, again, I
think it's critical to
to to credit the SEIU
discussion of what it means to
interpose
sort of notice and comment
procedures and potentially a veto
between the executive branch and
enforcement of the law.
And yeah, so so
and narrowly interpreted again, you
can you can accomplish that I think
by focusing on the specifically
adopted to govern it.
Again, it's not all interpretations.
It's it's there is a qualifier
there.
Okay, great. And then my second
question is,
if this court agreed
that these
different policy statements
or things on the website are
guidance documents and not
and not rules, does that
answer everything with regard
to that part of the case or is there
more that we would need to decide?
Well.
I mean, their claim has evolved
over time. Let's let's put it.
Put it at that.
Below in the Court of appeals,
the primary argument was
that these statements
on the website and in the letters
qualified as rules under 227
No. 113 That was
the almost sole focus, I
think, of the Court of Appeals
decision.
And I think if this
court was to say their guidance
documents, that argument
would be resolved in Diana's
favor.
However, I think in this
court, they've shifted quite
dramatically, in my view, to
the much more aggressive argument
that doesn't just focus on the
statements, but the two 2710
one itself affirmatively
requires rulemaking before
the executive branch can enforce.
That's that's a much more aggressive
position. That is not the one on
which the Court of Appeals decided
the case.
And I would note, I think this is
very conspicuous.
I encourage you to read the
legislatures amicus brief
and I think.
Very to read what.
Sorry, the legislature's amicus
brief.
And I think it's very noteworthy
that they do not adopt
this very aggressive to 27/10
of one argument.
And I think they very pointedly say
our argument primarily is that what
DNR is done is invalid under two
227 10:02 a.m., which is
the explicit authority standard.
What they say is and I disagree,
you know, as you can see in our
briefs, but what they say is, you
know, this charts a middle course
between the two parties, you know,
sort of extreme positions is how
they put it.
But I think that's very telling that
the legislature itself comes in
and and very notably
does not endorse.
Do I think the legislature
understands what this would mean
is that if
regulated parties, not just in the
civil law context, but anywhere,
could resist enforcement action
or regulation, period, simply by
saying, well, the agency must be
interpreting the statute.
It doesn't have a rule.
So therefore, the statute
effectively is inert
until the rules are promulgated.
I think the legislature understands
that that is not a result that it
wants. It wants its statutes
to have force when it passes
them, not for the effect
of these statutes to essentially be
conditioned on rulemaking
activity by the executive branch.
But doesn't to 27/10
of one answer that argument
as well because it expressly
says it it doesn't apply
to a statement of policy or
an interpretation that
is applied to a specific set
of facts.
And the distinction here is that
this isn't something that's just
applying to leather research.
It's a statement of policy that
DENR is adopting, that these
substances are hazardous,
and then these steps need to be
taken to remediate.
Well, I have two responses.
One is that
Lamar, as I read
it, essentially read that second
sentence.
I mean, out of the statute,
there's there's not much room left
for the second sentence under under
Lamar. I mean, Lamar essentially
says if the agency and
again, this is a change case, I
think it's critical. Remember, it's
a change case. I saw I see my light
is on. Can I finish the answer?
You may finish the answer, but I'm
also going to give Justice
Caskey the chance to ask the
questions she tried to do at the
same time, just as to say that she
was asking her questions, which was
then followed by Justice Hagedorn
and now Justice Bradley.
So we're going to go backwards a
little bit.
In the beginning was the word.
Thanks to.
Genesis one one.
Where was I?
Lamar Right.
Well, right.
I'm reading something on the statute
that the court didn't have the.
Well, I mean, right.
So if you look at Lamar, what Lamar
basically said is we had an
individual application of the
statute. Lamar had a billboard
dot was deciding whether that
billboard was permitted or not.
It in the context
of that proceeding, it announced
its interpretation.
And Lamar essentially
says, well, sorry,
you know, you can't avoid the
obligation to promulgate
a rule simply by announcing your
interpretation in the context of a
specific case.
So I am I'm
quite certain that I mean,
that is how this case started.
It was an an individual wasn't
even an enforcement action yet.
But as an individual
back and forth between DNR and
leather rich, you know, an
individual case, one on one facts
on the ground and we get
this argument.
So.
I don't know what that leaves us.
I mean, where that leaves us is,
again, I think to 27/10
of one needs to be
construed quite narrowly.
And again, the authorities for doing
that are the guidance document
statutes, which are the later
enacted statutes, mind you.
I mean, those are the legislature's
most recent pronouncement on this
topic to
7/10 of one's predecessor dates
back, I think to 1953.
And it's worth noting
at that time, the rulemaking
procedures were extraordinarily
streamlined compared to what they
are now.
Justice Hogan, I think you put it
very memorably, a canoe traversing
the ocean is what it's like now.
Back then, maybe you didn't
even have to hold a hearing.
And you you certainly didn't have to
send it to the legislature for their
approval. You could just basically
publish it.
And so in that era, you know,
perhaps it made more sense, but
now it does not.
Said one preliminary question
just to get everyone on the same
page.
Is it spill singular or
spills plural?
There is something.
On the same page.
There's some debate about that.
Okay.
All right. I guess we'll have to
break the tie.
I have a few questions here
regarding the notice
requirement that you talk to
Justice Rebecca Bradley about.
And what I want to do is ask
you to respond to
some of the writings in your friends
briefs where I think
one actually has to do with
vagueness, but I think that that
falls under the rubric of notice.
Whether or not people
whether or not
sorry, people realize that
this is something that is being
regulated.
The first is on page eight of
Leather Rich's brief.
And it says.
And and according to leather leather
rich, on page eight of their brief,
they say simply owning property
can subject one to spills law
liability
according to
the other also say something about.
So also also can
buying a gallon of milk
which of course in Wisconsin would
make everyone very, very nervous.
So I just want to get your
thoughts on whether or not someone
owning property, simply owning
property or someone buying
a gallon of milk is
going to subject them
to the spills law.
Only apply civil injustice, graft.
Or just.
Only.
If they spill it.
I'll I'll take that in
two steps.
They spills the property
first.
First on the possessor point
this court resolve that question
long ago in Morphy.
That was the first time this court
considered a civil law question.
It was exactly that one.
Is when
do simply possessors of
the land potentially incur
civil liability?
And this court took a very broad
view of the spills law and said
if essentially possessors of
a hazardous substance because it's
still being discharged, you know,
the discharge is not the initial
dumping alone.
It's also the propagation of the.
Of the contamination.
Once it's in the environment and the
soil, that's
a discharge.
And the the possessor of the
property incurs liability.
That's what Marty says.
The next case, Chrysler,
I think, emphasizes a key point
here, which is, again, that the
legislature chose to create a strict
liability regime here
in the legislature had a choice
when it considered how to address
harmful discharges.
One.
It can socialize losses,
have taxpayers pay for cleanup
costs.
Alternatively, it can impose
that liability on the discharges
and the property owners.
You know, often the people who
actually profited off the activity
that led to the discharges and
the legislature made the latter
decision to
place the liability on
the possessors and the
owners and the discharges rather
than socialize the losses.
And to do that through a strict
liability regime that does not
require knowledge.
And that's a conscious choice.
As as for them, as for milk, the
gallon of milk, of course, a gallon
of milk does not qualify.
Now, what I will say is if
there is any question in a
regulated party's mind,
you can simply call DNR.
And DNR will either say,
no, we don't think it's a hazardous
substance discharge and
you're done.
Or it says yes, I think it is a
hazardous substance discharge, in
which case you now have two choices
you can start.
Complying with the spills
obligations. Or you can say,
I disagree.
And again, that's back to this force
of law question.
You have the ability to say, I
disagree and contest
Deanna's view in an enforcement
action the and leather
which was free to take that course
here instead it's taking this one.
What they are seeing in their brief
on page eight is quote According
to DNR, according to your position,
simply owning property can
subject one to spills
law liability.
And my question is, is that your
that's accurate.
If there's a spill that qualifies on
your property. And again, that is
squarely what Mahaffey held in 1985.
And then they say
and then I appreciate where Justice
Baker was coming from, but but
it actually says and
according to the arguments put forth
by DNR in this case.
So can buying
a gallon of milk.
Yeah that that I mean I think
Justice Rebecca Bradley helpfully
articulate why that's right I mean
there needs to be a spill and not
just any spill. I think it's
critical we have to go back to the
text of the statute.
I just I disagree that it's
an unclear statute.
It rests on objective scientific
facts.
And there has to be, you know, the
reason the gallon of milk
or the keg of beer hypo just
doesn't work is there is just no
conceivable argument that that poses
a substantial present or potential
hazard to human health or the
environment.
So that would.
Be we have to use a little bit of
commonsense.
Here. So that would be your answer
if I asked you to respond to page
ten of SI's brief
that says, What if a person
spills a beer at a barbecue or
drops a jar of pickles on the
way out of the grocery store?
Same answer.
Okay.
Until you say I'm sorry.
I think I've got some vagueness
questions, but if you want to follow
up.
You mentioned that it's not vague
because we can rely on objective
scientific fact.
This the pandemic taught us nothing.
It's that objective, scientific fact
does indeed involve and sometimes in
a short period of time.
Science certainly evolves.
I will return to what I said
earlier, which is there has
never been a hint of a dispute
from the other side that this
discharge is not actually hazardous.
There is.
Say what you will about Covid.
There is no dispute in the
scientific community that p
fires discharges at very,
very, very small levels pose
a serious threat to human health.
And just across the of this
may anticipate some of your
vagueness questions.
It's also important to recognize
this is not a due process vagueness
claim.
They very well could have teed this
up as one they declined to.
And I don't think there's any rule
making doctrine that I've seen that
says, well, rulemaking is required
when it might be nice to have
additional notice.
I mean, that's that's not how the
rule making doctrine has has arisen.
Again, there's no vagueness
challenge. And I think the reason is
they know it would have lost.
I mean, the standard for facial
invalidation of a statute on
vagueness grounds is very high,
especially for a civil regulatory
statute, and especially when
the discharge at issue clearly
falls within the four corners of the
statute.
And that is black letter law that
if you fall within the four corners
of a statute that you say is vague,
you can't make that challenge
because the statute applies to you.
Clearly, that's very clear in the
criminal context, also applies
in the civil context.
So this this sort of
11th hour vagueness
claim that we've seen, I
just don't think gets them anywhere.
So just to maybe put a finer point
on that, I just want to point to
page 19 of WMC.
They've characterize
your arguments as this,
a few example quoting them a few
examples highlight these vagueness
concerns.
If a person sprays P
farts containing cooking spray
on his outdoor grill.
Must he report that discharge to
DNR?
What if a person washes a nonstick
pan in his kitchen sink,
or if he puts a p fats containing
food wrapper into a garbage
can at the park under
DNR is apparent view
of the law.
All these discharges must
be reported to DNR.
Is that true?
I don't think so.
I mean, again, it depends on the
facts and circumstances.
That is how the legislature crafted
this bill's law. I crafted this
bill's law using spill law,
using a broad standard.
I think these hypotheticals
a wrapper.
There's just again, there's no
conceivable universe in which that
poses a substantial threat to human
health.
And again, I
understand that the response was not
terribly satisfying for justice.
Rebecca Bradley But you
can DNR is there to
help people comply with the statute.
That's how this is worked for for 50
years, and the legislature knows
that's how this is worked.
For 50 years. It saw Martha,
it saw Chrysler outboard.
It saw that this is a strict
liability regime that
does land even on the possessors
of of land, that is those
who did not cause the original
discharge.
Legislature is well aware of these
two seminal decisions of this court
and has never amended the spills law
either to require rulemaking,
which many, many other provisions in
Chapter 292 require.
Nor has it amended the spills law to
impose a mens rea, a requirement
which other environmental statutes
have. Some statutes require
knowing,
knowing discharge discharges, but
knowing conduct, you know, the
person liable has to understand
that what it's doing subjected
to liability.
Again, Chrysler outboard was very
clear on this point. This is exactly
the argument that Chrysler made and
Chrysler outboard said, I didn't
know that this was happening,
you know, ten years later.
And the court said, well,
that's the choice the legislature
made with strict liability, because,
again, when we're dealing with
environmental spills, there's no
free lunch.
Someone's got to pay for it to the
taxpayers or it's the
people who discharge or possess
the land on which the discharge
occurs.
That's the choice.
Someone's got to do it.
And the legislature made the choice.
And I think that choice needs to be
respected.
Chief, I just have one more
question, please.
Thank you.
This has to do with the
effect of law that you haven't had
a chance to talk about yet.
And
the WMC Brief says that
the Nas policy of regulating
emerging contaminants is hazardous
substances has the effect of law
because and then they list for
reasons, right?
The statement was within the Nas
expertise.
DENR had the power to enforce
it. DNR used mandatory
language.
And such enforcement carries
potential civil penalties.
I just want to give you
a chance to respond to there a
fact of law argument, and then I'm
done, Chief. Thank you.
So I have two things to say on the
floor on the effective law.
Three, very quickly.
One, the
the the proposition
that whether an interpretation has
the effect of law is
a question of degree.
What if you look at Barry Labs where
that quote came from, I encourage
you to read very Labs has
a very good discussion of this.
And it basically says when an agency
is acting within the realm of his
expertise, what it says about the
law is more likely to have the
effect of law.
And I think you can see where I'm going
with this tetra tech.
We don't defer to agencies anymore.
And so this proposition that
interpretations can sometimes
have the effect of law rested
on an age that's no longer
with us when courts would defer
to agency interpretations.
And this goes back to my core point,
which is when the
agency simply conveys
its view about the law.
And Justice Kelly put it this way,
and I say you I think it was very
apt.
Communications about the law are not
the law itself.
And so that's our that's
our core position here about
why did our statements
do not represent the law?
Because they they got to prove it
in an enforcement action if they're
challenged.
And courts will review that
issue to novo, there's no
deference.
Okay.
Thank you. Thank you.
There were a few extra minutes
there. We've kept track of that.
So, yes, the other
side needs a few extra minutes.
Will comedy.
Good morning, Madam Chief Justice,
and may it please the Court.
As an initial matter
of EMC, and I intend
to divide our argument
by subject matter.
So I will.
I intend to dress the rulemaking
requirement for hazardous substance
regulation.
And he intends to address
the program
and the constitutional arguments.
But first, I think it's important
for us to understand how we
got here today.
Sitting behind me is Miss Joanne
Cantor.
She is the owner of Leather Rich,
and Ms..
Kantor has spent six years
and several hundred thousand dollars
just trying to decipher
what the law requires of her.
She's been attempting to remediate
the leather rich property, and more
than once over those six years,
DNR has changed the rules without
notice unilaterally.
And each time that moves her further
from from completing that
leather remediation.
And in the time since that
remediation began, this
court unanimously reaffirmed
in Lamar.
That is fundamental principle
of our legal system that regulated
parties have fair notice of what is
forbidden or required of them.
And that's especially important here
for this is
a self implementing program
and it applies to every
single business, landowner,
individual, even visitors
of our state.
And that's why rulemaking is
required here.
That's right.
Can you give me an example of a
substance that would be covered by
the spill or spills law
without any rules?
Certainly the skills laws, it's a
very complex set of rules and
it references multiple
other state and federal
environmental regulations.
So one example we gave in our brief
was in two 9211
sub 12 B where
the spills law applies
to any discharges regulated
under the state and federal
emergency protection
and any community Right to Know
Act, which is epira
Epira then references whole
a whole suite of federal
regulations.
So only the ones that are
and in other regulations
is what your position is.
Correct. There are also other places
in the in our statutes where they
have expressly
provided a list of substances that,
for example, are toxic in a certain
medium and at a certain
level.
And we referenced, I think, 215
as well as 660 an hour to 15
and under six six.
So, for example, is arsenic one
of those is cyanide.
One of those those substances
are already determined,
determined, toxic by DNR
in those other rules.
So your position to
us is that only if some other
rule or the DNR were to listed
as a toxic substance, would it be
something that would be covered by
the spells law?
That's correct. And that goes
to the requirement for
fair notice.
This be done.
Maybe.
Go ahead.
The spills law itself has been
around for about 50 years, right?
Correct. And there's there's nothing
new about this law being applied
to emerging contaminants
like P. That's right.
I think the application
to emerging contaminants of this
type and of a category this broad is
is new.
I think we can all agree that
according to the record that we
have, prefabs don't
break down. And then vironment
right? They remain for long periods
in our air, in our.
Well, Your Honor, there are there
are, as DENR accounts, at least
9000 compounds.
And I don't think the record
supports that.
That's the case for every single one
of them. I don't think science has
developed to that point.
The record that is before us,
though, shows us that there are
compounds that pose significant
dangers to human health.
Right.
I think that that there
are certain substances
that may. But again, the science
there, we have disputed
this issue despite
how my friend is portrayed it.
There is scientific dispute
over what
impact these even even
the most studied of substances
have.
And you can see that in the
difference between the federal
regulations which regulate
discharges at 1 pound per day.
And what we're talking about here,
which is parts per trillion,
infinitesimally small amounts.
So I think there's just disagreement.
Some of the risks that science have
found regarding p fats include
increased risks of thyroid disease,
increased risk of cancer,
negative effects on the endocrine
system, negative effects on
the reproductive system, increased
cholesterol, decreased fertility
in women and lower
infant birth weight.
Isn't that correct?
I will take your
your word for word and mean I'm.
I'm reading what has been submitted
in this case. And that is in the
record of this case.
Yes, Your Honor. But we again,
this is not about
any particular substance.
I want to I want to make sure that's
clear. This dispute is
not about a particular
substance.
Counsel, I want to ask you a little.
Can I just follow I just I just have
a couple.
More still going to have. Yeah.
No.
I didn't find an instance
in your brief where you, in fact,
disagreed that p fats
is a hazardous substance.
Do you disagree with that?
We disagree that P.
S is a category is nine.
It as a category can
be.
Can be.
Excuse me. Called a hazardous
substance because the science of
9000 compounds plus
has not developed and we've
footnoted that in I'm
sorry, I don't have the specific
say, but we we absolutely
raised that issue in our brief.
If we find in your favor the way
that you're asking us to.
Then responsible parties
would not have to report
the discharge of p fabs, is that
right?
Until the rules are promulgated.
So we have a clear understanding of
at what level it needs to be
reported and.
Responsible parties would not have
to identify p facts, would they?
Again, we're talking about 9000
compounds here.
I'm not sure which ones you're
asking about.
And responsible parties would not
have to investigate contaminated
site contaminated sites, would they?
I mean, I know I think the civil law
will still apply to certain
contaminated sites that are
regulated.
We're talking about perhaps here.
There are instances where the spills
law will apply to discharges
us based on that incorporation
of the federal regulatory
requirements.
Under your interpretation of the
spills law, could these spills
law be implemented implemented
in a way that would
make a responsible party
have to investigate sites
contaminated with P?
Yes.
In if the discharge
is at a certain level that
it subjects that site
to extra requirements
federal requirements, then it can be
regulated under the spill law.
I have a follow up question to
something Justice Cross was asking
you.
I think that and perhaps
that can be addressed on rebuttal as
well. But the DNR
has estimated that
there are 9000 individual
people's compounds
and thousands of people's mixtures.
But DNR provided
a list of about 18
that they considered hazardous.
So when we're talking about this
category, and I think you alluded to
this, not all people's are
hazardous. And is that part
of your argument that your client
is unable to determine
which they are, which ones
are hazardous
because DNR won't tell
her and she's left
guessing at the risk of
spending a lot of money
and incurring a
lot of fines.
And so when I think your
friend on the other side said, we're
from the government and we're here
to help you, basically,
where's the help?
Is that your argument?
That's part of it. And I think it's
not just which substances, but at
what level.
And I think this this idea that
you can call the DNR and
ask, is this a hazardous substance
discharge, Yes or no is
a bit of a fallacy. That's not how
it works.
You have to report the discharge.
And when you do, DNR accepts
your assertion that this is a
hazardous substance discharge and
they open a remediation case and it
becomes a data point.
Now, for a fee, you
can then ask DNR, Hey, is
there any remediation I have to do?
And they might say no, but
but they don't unilaterally tell you
this isn't a hazardous substance
discharge and you don't have to
report it in the future.
It sounds like your beef is with the
statute, then.
Attorney Brewer But the spill is law
itself, which is the one that puts
the obligation on the person, right?
Isn't that your complaint?
I think our
our issue here is with the changing
interpretation of that
statute as applied.
Because I ask you about that,
because you say that these documents
somehow
are the force of law.
But isn't it true that you
can go into court and challenge the
enforcement action and the
DNR is not going to be pointing to
the website? They're not going to be
pointing to the letter they sent
you. They're going to point to the
statute, the one that says
that you have the obligation
to clean it up if it's hazardous.
Perhaps in the context of an
enforcement action. But I think it's
important to understand there is a
lot more that DNR can do
based on their own interpretation.
They can take specific direct action
without ever going to an enforcement
action. They can require
preventative measures.
They can come on to your property
and investigate and remediate a
discharge because of their
based on their interpretation
without ever going to a court.
Right.
But it's the court that determines
everything is based on hazardous
substance defined in the law.
It has nothing to do with the
claim you're making.
And I get that you're making a
larger claim. But the claim you made
below is that this documents
this website and this letter.
Have the force of law.
Correct. Tinkler is out of the
equation. Can't DNR still
do all those things you're talking
about and say, Professor, Hazardous
substances?
I'm not I'm not certain I
understand. I mean, I think I think
people are not within the obvious
meaning of this definition.
One certainly not all 9000
of them, and certainly not at any
level.
And so the Republican.
Documents don't
those aren't the things the DNR is
going to point to when they when
they tell you to remediate or when
they take you to court for an
enforcement action, they're going to
point to the statute.
But I think if a DNR comes onto
your property and says, we're going
to investigate and remediate on your
property based on our interpretation
of the spills law, our
interpretation of hazardous
substance, then that definition,
I mean, I think aside from that, the
ability to bring an enforcement
action means that
DNR has the force of law.
And anything DNR
does is the force of law because
they have an ability to bring an
enforcement action.
I think Joe's a manufacturing
and at least one other
case on rulemaking actually
mentions that it is the ability
to bring in enforcement action.
That means their interpretation has
the force.
Agencies can't do anything
under your interpretation.
I don't think that's our position.
Our position is that
the if the agency is
is interpreting this
in a manner that is not within the
obvious meaning of this definition.
The definition is very vague, it's
very broad, it has layers of
ambiguity.
Then they have to put the public on
notice. This is this is about
putting the regulated community.
And I want to ask about your your
ambiguity argument.
You're not asking us to overturn
SEIU, Correct?
I think SEIU is
distinguishable here because that
the force of law issue
is what distinguishes
the guidance document from a rule in
SEIU applies to guidance documents.
But but you you
you talk about ambiguity
and you say that
to 27.10
sub one requires rulemaking
for agencies to
interpret and implement
ambiguous statutes.
One Has this court ever read to
27.10 sub
one to require a rulemaking
in that situation?
I Your Honor, I think
certainly in Lamar.
The the interpretation
of an ambiguous statute in a new way
for the first time requires.
Well, that's not what Lamar son
Lamar wasn't the interpretation of
a statute for the first time was it?
Lamar was 180 degree interpretation
of a statute for not the first time.
I think the same could be said when
it's a new interpretation that
has not been taken before.
And our position is that DNR
has not previously regulated
a broad category of emerging
contaminants like it does
here.
That is a new interpretation.
It is a changed interpretation, and
it requires rulemaking so that
the regulated community can know
what's expected of it.
It seems to me, you know, at the end
of your brief, you say that
the DNR wants it both ways.
But when I read that, I thought
perhaps you might be projecting just
a bit, because on the one hand,
you're suing DNR because they
communicated with your client about
the spells law and P facts.
And then in your briefing you
complained that, quote, DNR
provided no guidance to Ms..
Canter regarding which of the
thousands of facts compounds were
considered hazardous substances
and at what concentration those
substances would be considered
an exceedance.
I mean, how is how is DNR
supposed to communicate with your
client when communicating with
your client leads to you
suing them? They weren't
communicating with your client about
these very issues.
They should communicate with my
client in the same way they
communicate with the entire
regulated community by rulemaking
so that there is a clear standards
that can be applied in forward
application applications
where folks understand when
they have an obligation to
report a discharge to
to the DNR.
Just say thank
you, Chief.
I've got a statutory construction
question for you.
The DNR noted that there were 18
places in Chapter 292
where the legislature directs the
DNR to promulgate
rules.
Yet the legislature omitted that
directive with respect
to hazardous substances.
To me, that sounds like or seems
like textual evidence that the DNR
did not want to require rulemaking
on hazardous substances.
Can you tell me what your responses
to that?
Sure. I see my time is up.
I have not responded.
Justice Hagedorn has one for you
too. Got a line up going again?
Sure. Sure.
You know, I think
their DNR cited
no case that explicitly
explicitly requires such
rulemaking demand in
the statute at issue.
And I think even accepting
Deanna's argument that the
legislature did not intend to
require rulemaking when they
when they pass this bill, which we
disagree with, but let's say we
accept that that's been
superseded by the changes
to 227 that more
broadly require rulemaking in
instances like
that the the lack
of that that sort of demand
to DNR to undertake
rulemaking here I think is is
entirely meaningless in light of
chapter 227.
I wanted to just make sure I
understand the nature of your
argument. You started with talking
about sort of
fair notice as kind of the
foundation.
And if there's not fair notice about
what chemicals might
be regulated, that, you know,
rulemaking, I guess is the the
prescribed remedy for that.
Is it if there was a
substance that.
Clearly met the statutory definition
of hazardous. So you just conceded
you agreed that for sure this
would meet that definition.
I think your position, correct me if
I'm wrong, is still that
that can't be regulated
at this point until a rule is
adopted about that.
Is that is that correct?
Sort of. I mean, I think if
if we're at that position, there
is a very, very good chance
that that substance will already be
regulated under one of the take my
hypothetical.
Which you know, it I pathetically is
what it is. But let's assume it's
not already prescribed under any
of the other.
Understand that you know there's
other things that are listed in
federal law, etc..
So let's assume it's not that, let's
say, but it's something that you
and everybody in the world agrees
this is a hazardous substance, meets
the statutory definition of.
Of that but is not specifically
enumerated anywhere like is your
position that
the diner cannot take action on that
until rulemaking is
done in competition?
Yes, that I think a rulemaking is
going to be a very easy endeavor in
that case. And.
Sure, sure.
I understand. I'm just trying to
understand that.
You don't think lawmaking isn't easy
and diverse?
Having walked that walk?
I don't think so.
In in. Is that in in
the reason it's not your argument
isn't really a fair notice argument
is it. I thought your argument was
more because it was an
interpretation.
So I was a little struck by your
argument. I'm just trying to understand
the legal ground.
I mean, there is no principle that
I'm aware of in the law that if
the legislature passes a broad,
somewhat vaguely worded statutes,
but specific enough to do something
that they can't
act until they pass, they have a
rule I'm unaware of any principle of
law that makes that a general,
a general rule that always applies
if there is. Please enlighten me.
But I am not. I'm unaware of it.
It is your argument that it
just meets the definition of a rule
because of two 2710 or because
of some some
notice, some fair notice,
kind of generic, you know, general
argument along those lines.
I mean, I think we make a couple
arguments and the.
Three specifically and the two 2710
is one of them.
And the fact that it.
Their
their general application forward
looking also means that
this meets the definition
of 220 7A1 13 of a rule.
And then we also argue
that the requirement
that discharges be reported
at a detectable level
violates two 2710
to them. So I think all three of
those arguments kind of go hand in
hand.
Okay.
Thanks.
Okay. Thank you.
Good morning. I think it's.
Good morning and may it please the
court.
Lucas Weber, appearing on behalf
of Wisconsin Manufacturers and
Commerce Inc., are the other
plaintiff and respondent in this
matter.
I'd like to begin by talking,
I guess briefly, just following up
on justice courtesy, which is a
question with regard to where
that rulemaking requirement is.
That rulemaking requirement is in to
27 exists similar
to 27/10 of one as well
as in the definition of a rule and
220 7A1 13
The agency, the department or
the legislature doesn't always
impose a rulemaking requirement when
they intend for the agency to
promulgate rules.
We see that even within chapter 292,
under Chapter two, 92.311
sub chapter or subsection
one, the DNR is required
to promulgate a database of all
hazardous substance locations.
The legislature recognized that that
might be a rule.
They then exempted them from
rulemaking explicitly.
They said in subdivision
four there that
notwithstanding sections two 2701
13 and notwithstanding sections
two 27/10 of one, that
database is not a rule.
So I think the legislature has
recognized that those two sections
of the statutes do apply in
places where they haven't directed
an agency to promulgate rules.
Certainly the legislature has
commanded that agency shall
promulgate rules in particular
cases, but they haven't always
required it.
And I think that's helpful
background here.
As we go on to the other issue
that's in this case, and that's the
department's interim decision as it
relates to their administration of
the voluntary party liability
exemption program or the Vpl
program.
Counsel, before you get to that,
your comments
addressed in part now to 2710,
Do you agree with your
opposing counsel's
comment that the posture
of your argument has changed
in this case from that advanced
in the Court of Appeals by making
a more, he suggests,
aggressive push
on to 2710
some more.
Your Honor, I think we've always
we've always argued throughout this
case that
it requires rulemaking.
And the source of that requirement
comes from two 2710
but it also comes from the
definition of a rule and 220.
The question is, do you agree with
his assertion
that your position has changed
from the
Court of Appeals where you were
advancing
arguments, Visa V,
the website and the letter
among others, that now your
emphasis here is
an aggressive attack under
two 2710.
Do you agree with
his assertion that there's
a change?
Well, no, your Honor. And I think
we're still relying on those letters
and the website as as evidence of
the department's policy that they've
adopted here.
So the policy is not the letter
itself. The policy is the department
has a policy that's evidenced by the
letter, but it's the policy the
department has adopted that was
challenged in this action.
It wasn't clear to me ultimately
what the response was.
So let me ask you this question.
Do you agree with your opposing
counsel's assertion that
there is no dispute that P fair
satisfies the definition
of hazardous material?
No, I don't agree
with that. But I think
the appropriate way for the agency
to make that determination is to
promulgated as a rule.
And to my colleagues point that
if the if it's something
that is almost you know, if it's
much easier, if everyone agrees, if
it's if it's a standard that very
clearly will apply here, then that's
certainly where the standards should
be drawn in the statute.
I would also say that the agency
doesn't need to promulgate and list
every single substance it can.
It could also do what federal law
has done, enlist objective criteria
for what could meet the statute.
That's another way that they could
comply with the requirements
under to 92.
The the video, the interim decision,
which is the other issue in this
case, relates to the state's
brownfield redevelopment program.
So the Vpl program
allows sites to be remediated,
redeveloped, brought back into
the stream of commerce.
It's a major benefit to the state,
local communities and the public at
large.
The typically when there's a
discharge of a hazardous substance,
that hazardous substance is
remediated once it's remediated
to the department's satisfaction.
They issue a case closure letter and
everyone moves on with the Vpl
program. Does it goes above and
beyond that.
The Vpl program is a voluntary
program that parties can apply to
once they're in the program, once
they've been accepted by the
department.
They conduct a much broader
investigation.
They look for any possible hazardous
substance discharges that they were
not previously aware of.
They remediate all of those
substances.
And then the department issues
what's called a certificate of
completion.
That's which has the benefit
to the property owner.
Right. A significant to the other
people you've listed, it has a
significant advantage
to them.
Yes, a significant benefit
to the property owner.
And the benefit is, is that it gets
a clean bill of health or
the property owner has remediated
that site. The department
satisfaction.
Once the department is satisfied to
say, hey, we don't believe there are
any hazardous substances on the
site, it then shifts liability
from that property owner to the
state. If a legacy
discharge is found later on on the
site, of course, future discharges
of hazardous substances are not
covered by that.
The interim decision policy upended.
The EPA program, the
interim decision was made to
completely eliminate the issuance of
those general certificates of
completion.
Fortunately for landowners who
want to rely on the village program,
that interim decision is unlawful,
and it's unlawful because it meets
the definition of a rule under
two 2701 13.
This Court and Citizens for Sensible
Zoning has broken down the
definition of a rule into 2701
13 into a five part test.
A rule is a regulation standard
statement of policy or general order
of general application.
Having the effect of law issued
by an agency to implement, interpret
or make specific legislation
that is enforced or administered
by that agency where an
agency action meets that five part
test. It is a rule and it is
required to be promulgated under
chapter 227.
Here, the interim decision, as I
said, meets that definition of
a rule.
First, it's a regulation standard
statement of policy or general
order. It announces the department's
policy to all of EPA program
participants and D to all
Wisconsinites that it was not
going to do something in particular
that was not going to issue.
Do you do you have a right to
participate in the Valley?
It's a voluntary program that you
have to apply for.
Right. So you have no real legal
interest in it, right?
I mean, the department could just
decide that they're not going to
grant any of these.
Yes. They've made a general policy
that they're not going to grant any
of them. That's correct.
And that general policy is a rule
that they would have had to
promulgate because it governs their
enforcement and administration of
it.
No, I'm saying in theory, they don't
have to give it to anybody.
You don't have a right to come to
court and say, I'm entitled to a
veto, right?
Correct. They do not.
But once the department makes a
general policy that's going to apply
to everybody who applies in that
program with the EPA program,
the department has broad discretion.
They have discretion on how to run
the program, how it operates.
But once the department makes a
uniform policy as how they're going
to exercise that discretion, that
they're going to apply to everyone.
That's a rule.
It's a general policy of general
application.
It has the force of law.
It was issued by an agency to make
specific legislation that's enforced
or administered by the agency.
That's where the interim decision
meets the definition of a rule.
It was not promulgated as a rule,
and it's unlawful.
As I say, I.
Still don't see how you have an
interest that could be legally
affected if
you have no interest in having it in
the first place. You have.
How do you have an interest?
That's legally what.
Our members rely greatly on the
VLT program.
It's it's a tremendous cause.
It's a tremendous program that helps
you, but you have no right to it.
It certainly helps us and
it's certainly available to our
members generally.
It was anyways, prior to the interim
decision, the interim decision took
the value away from that program.
They couldn't apply for it.
Why? Why would they?
There was no benefit to them.
And the reason that there was no
benefit to them, the benefit that
was available potentially to them
was taken away by the department's
rule.
As I was saying, it's it's generally
applicable to be generally
applicable. It need not apply to all
persons within the state.
It just has to apply to a class that
people could be added to.
Certainly here it applies to all VPP
program participants, of which,
as I said, anybody could
apply to join.
And third, and there's been
a lot of discussion here on the
force of law.
That's the third element of the 227
and 113 test.
The interim decision certainly here
has the force of law.
Case law indicates that an
agency action has the effect of law
for two reasons which are applicable
here.
When licensure can be denied or
when the interests of individuals in
a class can be legally affected
through an action.
And that's exactly what the interim
decision.
So we're back to that.
Individual interests of individuals
can be affected.
What interests do your clients have
in being in participating in the vpl
you are?
Well, generally, they could apply
for the program.
They can apply and they can be
rejected. So what's their interest?
They don't have a right under the
statute to have it right.
No, but they have the right to apply
to the program and for the program
to exist.
Yes, they have the right to apply.
So that's what you're saying the
interest is.
Yeah. And once the decision is made
by the department that they're going
to again, universally apply that
policy to all applicants to the
program, which they did here, The
agency has adopted a policy.
They've adopted a rule.
Once an agency adopts a policy,
they're engaging in lawmaking.
That's a legislative function.
They have to exercise that policy
according to
according to the confines of chapter
227.
If an agency adopts an unlawful
rule, it has
unlawfully usurped the power of the
legislature, and our Constitution
doesn't allow that
person.
Could you respond to just the
argument of your opposing counsel
that just going back to the force
of law? Question Yeah, I understand
when you know, there's lots of
statutes that give the executive
branch discretion to do A, B or C,
and
that happens all the time.
And so, you
know, Governor Walker might
have done A and then Governor
Evers might do B
more often or less often.
And maybe they maybe
they say it, maybe they don't.
But those are
generally understood in the law to
be within the prerogative of the
executive and exercising the
discretion given to them if that's
what the statute does.
So the argument you're
posing, counsel, is that it's just
that it's not a force of law
question. It's just how you exercise
that discretion that you're given by
the law. How would you respond to
that?
Yeah, I would respond to that by
saying the the department here is
characterizing all of these actions
as guidance documents that don't
have the force of law.
I think the primary difference
between a guidance document and a
rule is that rules have the force of
law. Guidance documents do not.
So certainly when the executive
is administering a statute that's
plain and clear, tells the executive
exactly what they need to do.
The executive is going to take
those actions.
And there's no adoption
of a of a statement of policy or
there's no adoption of an
interpretation of the statute that's
needed here. They just take the
steps they're commanded.
Once the executive, though, goes
a step further, as here,
I think the the hazardous substance
definition is a perfect example of
this. It's a broad, open ended
definition of the statute
that clearly contemplates that at
some point uncertain in the future.
Yet unknown substances may
become regulated by that statute.
The problem is nobody knows when
that point uncertain is known.
The department says, the science has
evolved to the point that it is.
But how does everybody know?
Because for 50 years it's been
operated successfully, as they said.
But during those 50 years, people
were discharged and nobody thought
there were hazardous substances.
So at what point do people know
or are they supposed to know that
those substances become hazardous?
And the answer is that once the
department makes that determination,
they have to promulgate that as a
rule, and that gives the fair notice
to the regulated community.
But it also is their constitutional
duty when they're exercising their
policymaking power.
So are you seeing this?
Are you making have some kind of due
process claim here?
That they haven't.
Duty to fair notice.
I mean, that seems to me you didn't
make that argument.
In our brief. Your Honor, we
we argued the.
Our understanding of how the statute
works. And we responded to
their argument by saying that, you
know, if if the statute
doesn't work this way and it allows
the department to regulate on an
ad hoc basis without promulgating
rules. So that nobody knows what the
law is as they're doing that.
Then that would raise constitutional
concerns, due process concerns?
Yes, it was. I thought your
argument.
That's a pretty high burden.
You. Adopting more of the ambiguity
argument of leather ridge
and that will go ahead.
You know what I'm going to ask you.
I think the it
goes hand in hand. Those those two
arguments are related, Your Honor.
I think the the milk example
is is a is a great example here.
The department has said that if a
tanker truck of milk spills, it is
certainly a hazardous substance
discharge.
But today he said if you drop a
gallon of milk, it's not a hazardous
substance discharge.
So somewhere in the middle there, it
becomes a hazardous substance
discharge. But when nobody
knows.
Well, how would they ever function?
Each each individual case is
going to be different.
Every fact situation is different.
What if they spill five gallons?
What if they spill ten?
What if they spoke to you?
What about exactly?
What about almond milk?
What about oat milk?
That's my.
Milk.
Your Honor. That's a whole nother
debate. Exactly.
Your point is, these are fact
specific situations.
Isn't that exactly why we have
enforcement actions?
Isn't that exactly why we have
the ability to interpret that,
that the executive has to be
able to apply the law?
That's called applying the law to
the facts?
Yeah, Your Honor. Exactly.
And I think that to your point, it
does create a significant amount of
uncertainty. I mean, where do we
draw the line? If I if a milk
delivery truck is has a hand truck
full of of milk crates and they
bring it in and spill it, does that
rise to the level?
Well, right. But we know what you're
doing to us and what should that.
But Attorney Brewer's argument
was that somehow DNR has to set all
this out in the statute or
in the rule before they could
possibly act.
And that is insane.
That means that you can spill the 20
gallons because
by the time you make a rule about
it, heck, it'll already have done
whatever damage it did.
Yeah. And Your Honor, that's what
the statutes require.
That's what. Two 2710 someone
requires.
Requires every single.
So we got to see whether it's one
gallon, five gallons, a ten
gallons, 20 gallons.
And then if it's 25 and we don't
have a rule, we can't enforce it.
That's what I hear you arguing and
that's what I hear your attorney
for.
Your Honor, as I said, I think the
department could provide a list of
substances. I think they could also
promulgate objective and I'm sorry,
my light is on the
they could also promulgate a list of
objective criteria by which the
public could, in each one of those
circumstances, affirmatively know if
they're violating the hazardous
substance statute or not.
That's what the federal government
does. That's what the DNR could do.
But they haven't done it and they
refuse to do so.
And we're asking this court to
require that they do so.
And for these reasons, I would ask
that you affirm the Court of appeals
in this case.
Did we miss anyone up here?
Thank you, Chief.
Thank you.
Counsel. In the interest of time, as
you approach the podium, I'm going
to start asking you a question.
Nothing.
What's going to happen to me?
Justice Stallard asked.
How is the government supposed to
know? The same can be said for
the regulated community.
How are they supposed to function?
The lady behind you was trying to
retire. As I understand it, six
years ago. She's been cooperating
with the DNR and the goalposts
keep changing.
So there is a way to function,
right? And your friend on the other
side just alluded to it.
This is how federal environmental
law and the agencies
at the federal level.
Manager Right.
It's not this absurd idea
to promulgate very
specific rules.
So very specific discharge
under very specifics.
If I may, the federal rules to
which she is pointing operate very,
very differently across sets.
And they point this out in their
brief, a 1 pound
reporting threshold in a 24 hour
period. That is a tremendous
amount of for us to be
discharged. It takes, I think, four
drops in an Olympic sized pool to
exceed recommended drinking
standards.
The that so cercla
and the federal standards to which
they point it's a suit.
It's the Superfund site.
It's meant to address large
facilities, wastewater treatment
plants that are pumping out millions
of gallons of contaminated material
circle and are not meant
to do exactly what the spills law
is meant to do, which is extend
environmental protections to
beyond simply huge
sore point discharges like
wastewater treatment plants to cover
again dry cleaning
facilities which do discharge
significant amounts of P for us.
And specifically, I want to make
very clear, we hear this 9000
P for substances.
I think that's a red herring.
What's very clear here is
PFOA and PFOs,
leather rich PFOA s
discharges were eight times.
Times greater than the standard they
proposed.
Again, no one has any
doubt that these two compounds
that were present on leather riches
property are dangerous.
Now, I keep hearing while we dispute
that there is nothing in the record
whatsoever that contradicts
Deanna's scientific evaluation,
that some of those
9000 substances, including
two of which were found and
that are at issue in leather, which
is property qualified.
Counsel I wanted to just get to
just a quick question about
something we've talked about quite a
bit, and that's the definition of
rule.
And with regard to what you call
our our need to interpret
the word interpretation in it
narrowly, and I wanted to see
if you could offer us
a sense of what in your
ideal world we would say about
that, Like what would be your
statement of the rule or principle
that you would ask this court to
adopt, to manage these
and obviously innumerable complex
situations that might arise in the
future?
It's a difficult question.
I mean, one option the court
could take is to say, you know,
this would be dodging the question a
little bit, but we don't have to
decide what exactly is covered
by two 2710 sub one.
What we do have to decide
here is that when
the agency reads, the
statute applies it to
a set of factual circumstances
presented for the first time that
can that just constitutionally and
again I heard very little about
guidance documents their position
I heard nothing about the statute
two 2710
or whatever the guidance document
definition falls in.
I mean, I can't
help but read that and think this
is exactly what happened
here. The agency explains
how it intends to administer a
statute.
So I guess what one way you could
write it is to say that's
what DNR did here, the
guide. It falls under the guidance
document definition.
And plainly when an agency does
that, it can't be rulemaking because
that's what the guidance document
statute.
That doesn't get to. There are other
arguments.
So.
Well, right. So there's not.
That broader argument.
Well, there's two, right.
And I think well, they do go hand
in hand, I think because
the way I read two 2710
sub one at some level it has to
be the flip side of the
definition of a rule.
I mean, you can't issue a rule that
doesn't have the force of law.
I mean, that is a definitional
requirement.
So it can't be the two 2710
requires you to promulgate something
as a rule that itself
cannot have the force of law.
I mean, it's it's an interpretation
and it is tested
in court. And that's so that
can't be what, two 27/10 of one
requires.
But Lamar did interpret it and
say exactly what it requires.
I'm looking at paragraph 21
while the first sentence referring
to 227 Sub10
sub one requires a rule
for each statutory interpretation,
the department's position in Lamar
would, and I think it's your
position here, would allow it to
regularly engage in ad hoc
interpretations of ambiguous
statutes.
The argument is the statutes
ambiguous here because it does not
specify hazardous substances,
as the department has conceded here.
It is a very broad definition
and intentionally so.
In paragraph 23, Lamar goes on to
say the plain meaning
of 227 Sub10 sub one
is that it describes only one
pathway by which an agency can
adopt a new interpretation,
not a changed interpretation,
and prefers, as I think you would
concede, were not regulated
or considered hazardous substances
by the DNR. Until that announcement,
the agency must adopt a rule.
That's what Lamar says.
And I know that Lamar and
I understand it was changed
interpretation, a flip flop, if you
will. We don't have that here, but
it is indeed a new interpretation,
and I can't get beyond the text
that that does not speak to a
change. It speaks to
interpretations made by this agency.
Well, Lamar was
again, I perhaps are not persuaded,
but it was very clearly about a
change. The entire decision rested
on that. There was it was not simply
that the statute was ambiguous,
that there was a change in the
interpretation of the statute.
I will say this is not
this regulation of p force
or assertion that P force falls
under the hazardous substance.
It is not a changed interpretation.
This happens over and over again.
I would direct you to page 17
of our opening brief, as happened in
the 70s, when PCBs first
people first learned about the
harmful nature PCBs.
PC.
I don't have the full words tip
of my tongue and then MTBE.
But again, these are time and time
again this happens under the spills
law. Science evolves.
People understand the contaminants
that were used as part of ordinary
commercial activity pose a threat to
human health.
This is how this bill is.
Law has worked for 50 years.
Interpreting two 2710 as broadly
as they propose
is inconsistent with this court's
prior. Again, I would encourage you
to go back to the pre Lamar Cases
school, which I think is another
great example. If you look at school
way involved a change just like
Lamar did.
And at the end of the decision, what
did the court say?
The court said agency, lo and
behold, you made the right decision.
You know, the result was not agency.
You cannot act.
This was about whether Doty could
grant certain licenses to
bus and charter bus companies.
And school said, Well, Dottie,
you flip flopped, but nevertheless
you properly denied this license to
this bus company.
So it's never been the rule
until arguably Lamar
that was pardon me,
that agencies are barred from acting
until they promulgate
a rule that contains every single
interpretation of the statute, which
I just very quickly, the last thing
I want to point out here in terms of
practical consequences.
227 139 I would direct
your attention to, which requires a
rule is going to have compliance
costs of greater than $10 million.
The agency cannot promulgate it
without a bill passed by the
legislature that authorizes the
rule. There's no question that rules
under this bill would have that
impact. So we're in a situation
where not only must the agency
promulgate a rule defining hazardous
substances, but the legislature
would have to pass another bill
authorizing that rule.
So what do we have?
We have a spill law that can't be
implemented until another statute
is passed, amending it.
With justice and, well.
An absurd result.
Counsel
in reviewing the dissent from
the Court of Appeals, it
seemed to me to be a rather
methodical presentation of
the issues before
it. You suggest
in your comments that
there's a new thrust here
that may not be covered
by the existing
Court of Appeals dissent.
How, if at all, would you
modify the Court
of Appeals dissent?
Well, I
so what I would say is, again, to
this question of what was the focus
below?
I mean, if you read the majority
decision, I don't think two 2710
is even mentioned sub one in the
majority decision.
The majority decision is solely
focused on the statements
and whether they qualified
under 227 or 1 sub 13.
And so I think I'm
now using my memory, but I don't
think the dissent spent much time
on two 2710 so on.
Correct. Precisely because
that really wasn't the argument
below. And so in terms of what
you would do to sort of tweak
the dissent, if that were to be the
decision, I'd say on the on
the two 2701 sub 13
Question do these statements
qualify?
I think the dissent got it
absolutely right.
I do think, though, to
nip this to 2710 argument
in the bud, you also have to say
something about that statute
outlined in our brief what that
should be.
Thank you.
Interesting oral arguments.
The court
will adjourn and
reconvene.
I don't know that.
Yeah. Just say it's always good
luck.
So, anyway.
Pleasure as.
Always.
Council for.
It was like some of our own people.
I have friends, right?
45 more.
Seriously.
It's just good to see you.
No tic tac, no Facebook, no.
Plenty of fish.
Nothing like.
Yeah,
rubber bands. And
I've never seen that.
I like it.
As long as they're not in here
trying to bring the car too
far, too far to go home without
what you need for up here to take a
moment. Take a breath.
What do you need up here?
Of course.
Yeah.
I mean, yeah,
I am, you know.
I don't know.
Yeah.
Yeah, well, I have.