Yes, sir.
All rise.
Hurry, hurry, hurry.
The Wisconsin Supreme court is now in session.
Good morning, this morning we have for a first case 22 AP 70 Wisconsin manufacturers and
commerce-operated versus the Wisconsin Department of Natural Resources. Could we start with your
appearances? Good morning. All right, good morning. The lineup that I have just to make sure we're all
in the same page, 25 minutes followed by 15 minutes and 15 minutes and then back for five
minutes in the bottle, correct? All right, very good. With that, please proceed.
Madam Chief Justice, and may I 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 clean up, 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.
Leatherrich wanted a valuable spill law liability exemption, so it investigated its property,
discovered PFAS, among other things, and reported this to DNR. DNR then asked Leatherrich to address
this discharge, which undisputedly poses a public health hazard. Yet respondents insist that DNR
must ignore this harmful PFAS discharge and, indeed, many other kinds of harmful discharges
because no administrative rule lists all hazardous substances covered by the spill law.
Respondent's position would fundamentally rewrite the spill law and cause two serious
consequences that I just wanted to address, right? First, it would greatly hamstring DNR's
ability to protect public health in the environment. Harmful spills like Leatherrich's 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 rule
making, executive branch activity would grind to a halt. Council, your principal 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 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, are 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 start two provisions. First, 227.03MA, 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 a statute,
and alternatively, guidance documents provide guidance or advice with respect to how the agency
is likely to apply a statute in enforcers, so that's statute one. Statute two is 227.05,
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 the rule. So 220.705 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 108, somewhere in that range, but in
paragraph 106, 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? Sorry. Then what's a 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 to actually make
the rules, even though the Constitution 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 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 guidance does not. And I think what that means in this context,
and I think an example might be helpful, so consider this bill 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
this statement that we posted on our website that says we think PFAS or hazardous substances. No,
instead DNR files a complaint that says Johnson Controls, you violated 292-11-sub-3. You violated
the statute itself. A rule violation would look very different. A rule violation would come in
the form of DNR pleading 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 really have a problem? What you can see is
in really almost every single case that this court is considered on the unpromagated rulemaking
topic, all the way back to Frankenthal and Barry Labs, the very old cases, never did this court
say, and those are cases where they found an unpromagated 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 an unpromagated 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 a brief, is Wisconsin telephone versus department
of industry, labor, and human relations. That's at 68 with 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.
What, is that a rule? Is that an unpromagated rule? I believe there were 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 22710-1 were read as broadly as they say.
Instead, the result was a remand to the agency. And so I'll just read you a couple excerpts that I
think are really precisely Respondent's position here that's rejected in Wisconsin telephone.
Again, there, 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. What I'm going to say 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 a non promulgated rule, but it'll remand 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 in the respondents position. I don't think they're saying that though
council, and I'm going to interrupt you there because I want to explore this point with you.
The argument from the regulated community is here you have Leather Rich. They were cooperative
with DNR. They actually reported without being told to do so, right? The existence.
Of the PFAs. So you don't have somebody who is trying to avoid the law.
Their principle complaint, as I understand it, is they don't know what it is. And 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, council? If they don't follow the directives,
which is how I read the letters and communications they received, whether it's posted on DNR's website,
or if it's a letter directly to an individual regulated party, and it feels like the goal post
is shifting. And I understand the argument over Lamar and other cases, well, that's when there's
been a change in the interpretation. But from the regulated community's 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 beefers are hazardous.
Well, I just want to start on that last point you made 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
degree shift in what the agency expressly tells the public is what was concerning to the court in
schoolway and Lamar. I think it has to be a fundamentally different situation when an agency,
where 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. 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
first began learning about PFAS, 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 Respondent's position here. That's a serious problem for the executive branch.
I think this is Court recognized in SCIU 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 is the
executive's most basic job. I do have a number of responses on the notice issue that I would
like to get to, but no, please. I want to, before you leave that point, I want to go back to 227.10,
because there's no reference in that statute to a change in the agency's position. It says
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 court has rewritten
sub-1 to suggest that there has to be a change, because that's nowhere in the text?
I wouldn't say it's rewritten sub-1. I think what this court has implicitly written down.
You don't have the power to do that, though, right? Of 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. 227.10 sub-1 must mean something quite narrow,
and that, I think, has to be, so it's 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 administration of the statute.
And you can see that in cases like Chauvin, for instance, in which the Department of Health
Services, in administering a 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,
you know, booklet that basically said, we read this as one-third. If this individual is like
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 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 effective 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 PFAS or hazardous, you should probably
clean them up under the spills law, they immediately reference the statute. You know,
they say 290-211 covers hazardous substances. Here's the definition, 290-201-sub-5.
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 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, Leatherrich knew it was subject to the spills law.
Leatherrich knew that it had potentially discharged hazardous substances well before they had any
contact with the department. They installed it in permeable barrier. So, I mean, they knew that
there were chemicals being dumped. So it's not as if they were not unnoticed of this law.
Two, they report it. Like you said, they voluntarily reported. And three, there, again, is no dispute
here that the PFAS 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 PFAS discharge actually doesn't fall within the
statutory standard. So, turn your time ticking by really quickly. So, I just want to ask you
up. 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, we have
another argument that will call 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 in that level of
uncertainty. Would that impact the... Well, I think that's, yes. I mean, it would negatively impact
regulated parties, and I understand. Leatherrich here says, well, it's a burden on us to have to
clean up the PFAS, but I think you'll see the reason this all happened is because there was a
property transaction. Leatherrich wanted to sell the property, and in ordinary commercial
transactions, the buyer doesn't want to buy contaminated property. And so, if we accept this
argument, and essentially spills 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 we just have these
contaminants just sitting in there, 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 interpret interpretation narrowly?
I think the latter, I mean, it is an interpretation. I mean, it's... You know, you can have sort of
abstract interpretations or it's specific facts. It is an interpretation of the statute. What I
would say is 22710-1 needs to be interpreted narrowly, both as a matter of constitutional
avoidance, because again, I think it's critical 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 narrowly interpret it again. You can
accomplish that, I think, by focusing on this specifically adopted to govern it. Again,
it's not all interpretations. There's a qualifier there.
Okay, great. And then my second question is, if this court agreed that these different policy
statements serve things on the website, are guidance documents 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 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 2201-13. 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 DNR'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 227-10-1 itself affirmatively requires
rulemaking before the executive branch can enforce. 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 legislature's amicus brief.
And I think very...
Or just to read what?
Sorry. The legislature's amicus brief.
And I think it's very noteworthy that they do not adopt this very aggressive 227-10-sub-1
argument. And I think they very pointedly say, our argument primarily is that what DNR has
done is invalid under 227-10-2M, 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 very
notably does not endorse... I think the legislature understands what this would mean,
is that if regulated parties, not just in the spill 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 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 22710 someone answer that argument as well, because it expressly says 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 rich.
It's a statement of policy that DNR 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.
There's not much room left for the second sentence under Lamar. I mean, Lamar essentially says,
if the agency, and again, this is a change case, I think it's critical to remember it's a change
case, I'm sorry, I see my light is on, can I finish the answer?
You may finish the answer, but I'm also going to give Justice Kroski the chance to ask the
questions she tried to do at the same time, Justice Protosay, which was asking her questions,
which was then followed by Justice Haggadorn, and now Justice Bradley. We're going to go
backwards a little bit. In the beginning was the word. Thanks, Chief.
Justice One-One. Where was I? Lamar.
Right, well, right. Lamar reading something out of the statute that the court didn't have the
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. In the context of that proceeding, it announced its interpretation,
and Lamar essentially says, well, sorry, you can't avoid the obligation to propagate a rule,
simply by announcing your interpretation in the context of a specific case.
So I am quite certain that, I mean, that is how this case started. It wasn't even an
enforcement action yet, but it was 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 where that leaves us. I mean, where that leaves us is, again, I think,
227-10 sub-1 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. 227-10 sub-1'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 Hagar, and 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 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. I just have one preliminary question just to get everyone on the
same page. Is it Spill singular or Spill's plural? We should all just be 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 the Justice Rebecca
Bradley about, and what I want to do is just ask you to respond to some of the writings in your
friend's briefs, where I think one actually has to do with the Agnes, 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 according to Leather Rich, on page eight of their brief, they say simply owning prop can
subject one to Spill's law liability. According to, they'll 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 Spill's law. Only if I spill
it, Justice Growski, would you say? Only if I spill it. Right. I'll take that in two steps.
They spill as the property? First on the possessor point, this court resolved that question long
ago in Mothie. That was the first time this court considered a Spill law question. It was exactly
that one, is when do simply possessors of the land potentially incur Spill's law liability?
And this court took a very broad view of the Spill's 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 contamination once it's in the environment
in the soil. That's a discharge and the possessor of the property incurs liability.
That's what Mothie 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.
And the legislature had a choice. When it considered how to address harmful discharges,
one, it can socialize the 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 dischargers, rather than socialize the losses. And to do that,
the restrict liability regime that does not require knowledge. And that's a conscious choice.
As for milk, the gallon of milk, of course, the 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 law 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 DNR's view in an enforcement action. And Leatherrich was
free to take that course here instead of 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 argument? That's accurate. If there's a spill that qualifies on your property. And again,
that is squarely what Mothie held in 1985. And then they say, and then I appreciate where
Justice Rebecca Bradley was coming from, 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, I mean, I think Justice Rebecca Bradley,
hopefully, articulated 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 this statute. I just, I disagree that
it's an unclear statute, arrest and objective scientific facts. And there has to be, you know,
the reason the gallon of milk or the keg 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 common sense. So that would be
your answer. If I asked you to respond to page 10 of WMC'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 groceries?
Same answer. I'm sorry. I've got some big news questions, but if you want to follow up.
You mentioned that it's not vague because we can rely on objective scientific fact,
but if 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 PFAS discharges at very, very, very small levels pose a serious threat to human health.
And just to cross me, I don't know, this may anticipate some of your vagueness questions.
It's also important to recognize this is not a due process of vagueness claim. They very well
could have teed this up as one. They declined to. And I don't think there's any rulemaking
doctrine that I've seen that says, well, rulemaking is required when it might be nice to have additional
notice. I mean, that's not how the rulemaking doctrine 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 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 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 WMCs. They
characterize your arguments as this. A few examples, I'm quoting them, a few examples highlight
these vagueness concerns. If a person sprays PFAFs 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
or if he puts a PFAFs containing food wrapper into a garbage can at the park? Under DNR's 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 the spills law, crafted the spills law using a broad standard. I think
these hypotheticals are 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 entirely satisfying for Justice Rebecca Bradley, but you can, DNR is there to help people comply
with the statute. That's how this has worked for 50 years. And the legislature knows that's how
this has worked for 50 years. It saw Mothi. It saw Chrysler outboard. It saw that this is a
strict liability regime that does land even on the possessors of land. That is those who did not
cause the original discharge. The 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 requirement, which other environmental statutes have. Some statutes require
knowing discharges. But knowing conduct, the person liable has to understand that what it's
doing subjects it 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 10 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. Do 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. Okay. Thank you.
This has to do with the effective law that you haven't had a chance to talk about yet. And
the WMC brief says that DNR's policy of regulating emerging contaminants as hazardous substances
has the effective law, because, and then they list four reasons, right? The statement was
within DNR's expertise. DNR 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 their effective law argument. And then I'm done, Chief. Thank you.
So I have two things to say on the effective law argument. Very quickly. One, the proposition
that whether an interpretation has the effective law is, they quote, a question of degree.
What, if you look at Barry Labs, where that quote came from, I encourage you to read Barry 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 effective 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 effective 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 in SAU, I think it was very apt, communications about the law
are not the law itself. And so that's our core position here about why DNR statements do not
represent the law, because they got to prove it in an enforcement action, if they're challenged,
and courts will review that issue de novo. There's no deference.
Thank you. Thank you. There were a few extra minutes there. We've kept track of that. So
it's the other side needs a few extra minutes. A little comedy.
Good morning, Madam Chief Justice, and may it please the court as an initial matter
at WMC and I intend to divide our argument by subject matter. So I will, I intend to address
the rulemaking requirement for hazardous substance regulation, and he intends to address the VPLE
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 Ms. Joanne Cantor. She is the owner of Leatherrich,
and Ms. Cantor 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 Leatherrich 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 completing that Leatherrich remediation. In the time since
that remediation began, this court unanimously reaffirmed in Lamar that it's 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, where 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. Can you give me an example of a substance that would be covered by the spill
or spills law without any rules? Certainly. The spills 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 292-11 sub-12B, where the spills law applies to any discharges regulated
under the state and federal emergency protection and community rights in NOAC, which is EPCRA.
EPCRA then references a whole suite of federal regulations. So only the ones that are in other
regulations is what your position is? Correct. There are also other places in DNR 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 650, NR215 and NR660.
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
some other rule or the DNR were to list it as a toxic substance, would it be something that
would be covered by the spills law? That's correct. And that goes to the requirement for
fair notice. Are you done? Maybe. Go ahead. The spills law itself has been around for about
50 years, right? Correct. And there's nothing new about this law being applied to
emerging contaminants like PFAFS, right? I think the application to emerging contaminants
of this type and of a category this broad is new. I think we can all agree that according to
the record that we have PFAFS, don't break down in the environment, right? They remain for long
periods in our air and our water. Well, your Honor, there are, there are, as DNR counts at least
9,000 PFAS 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 PFAFS compounds that pose significant, dangerous human health, right?
I think that there are certain substances that may, but again, the science,
we have disputed this issue just by how my friend has portrayed it. There is scientific dispute
over what impact these, even, even the most studied of PFAS substances have. And you can see
that in the difference between the federal regulations, which regulate discharges at one pound per day
and what we're talking about here, which is parts for trillion, infitesimally small amounts,
but I think there's just disagreement. Some of the risks that science have found regarding PFAFS
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 weights. Isn't that correct?
I will take your, your word, the word in the record. I'm reading what has been submitted in this case
and that is in the record of this case. Yes, your Honor, but we, 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 PFAS substance. Council, I want to ask you a little bit about it. Can I just, can I just
follow, I just have, I just have a couple more. You still going ahead? Yeah. I didn't find an
instance in your brief where you, in fact, disagreed that PFAFS is a hazardous substance.
Do you disagree with that? We disagree that PFAS as a category is nine,
as a category can be, excuse me, called a hazardous substance because the science on
9,000 compounds plus has not developed. And we've footnoted that in, I'm sorry, I don't have the
specific site, 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 PFAFS. 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
PFAFS, would they? Again, we're talking about 9,000 compounds here. I, I'm not sure which ones
you're asking about. And responsible parties would not have to investigate contaminated sites,
would they? I mean, I know, I think this fills all will still apply to certain contaminated sites
that are regularly. We're talking about PFAFS here. There are instances where the
spills law will apply to discharges PFAS, based on that incorporation of the federal
regulatory requirements. Under your interpretation of the spills law, could the spills law be
implemented, implemented in a way that would make a responsible party have to investigate
sites contaminated with PFAFS? Yes. In, if the discharge is at a certain level that it subjects
that site to EPCRA requirements, federal EPCRA requirements, then it can be regulated under
the spills law. I have a follow-up question to something Justice Kroski was asking you.
I think that, and perhaps that can be addressed in rebuttal as well, but the DNR has
estimated that there are 9,000 individual PFAS compounds and thousands of PFAS
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 PFAS 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 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,
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. A trombour, with the spills a lot, which is the one that puts the obligation on the person,
right? Isn't that your complaint? I think our issue here is with the changing interpretation
of that statute as applied. Well, let me 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 onto 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 to
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. Let's take those out of the equation, can't DNR
still do all those things you're talking about and say PFAS or hazardous substances? I'm not,
I'm not certain I understand. I mean, I think, I think PFAS are not within the obvious meeting
of this definition. One, it's certainly not all 9,000 of them, and certainly not at any level,
and so the both of those documents don't, those aren't the things that DNR is going to point to
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 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 so,
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 an enforcement action that means their interpretation has the force
of law. Agencies can't do anything under your interpretation. I don't think that's our position.
Our position is that if the agency 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 about putting the regulated
community on. You want to ask about your ambiguity argument. You're not asking us to overturn
SEIU, correct? I think SEIU is is distinguishable here because that
the force of law issue is what distinguishes the guidance document from a rule and SEIU applies
to guidance documents. You talk about ambiguity and you say that 227.10 sub-1 requires rulemaking
for agencies to interpret and implement ambiguous statutes. One has this court ever read 227.10 sub-1
to require rulemaking in that situation. Your Honor, I think certainly in Lamar,
the interpretation of an ambiguous statute in a new way for the first time requires.
That's not what Lamar said. 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,
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 PFAFs, and then in your briefing, you
complain that, quote, DNR provided no guidance to Ms. Cantor regarding which of the thousands of
PFAFs compounds were considered hazardous substances, and at what concentration those substances would
be considered an exceedance. 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 standard that can be applied
in forward applications where folks understand when they have an obligation to report a discharge
to the DNR. 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 response is to that?
Sure. I see my time is out. May I respond?
I'm just a stegador and has one for you to get a line up going again.
Sure. Sure. You know, I think there are DNR cited in no case that explicitly requires
such rulemaking demand in the statute at issue. And I think even accepting DNR's
argument that the legislature did not intend to require rulemaking 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 the lack of that sort of
demand to DNR to undertake rulemaking here, I think 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 prescribed remedy for that.
Is it, if there was a substance that clearly met the statutory definition of hazardous,
so you just conceded, you agree 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 programs that's implemented.
Which, you know, the hypothetical 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, 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. Is your position that the dean cannot take action
on that until rulemaking is done? Yes, but I think rulemaking is going to be a very easy
endeavor in that case. Sure, sure. I understand. I'm just trying to understand that.
Yeah, don't think rulemaking is an easy endeavor in any case.
That's having that walk. I don't think so. And, and, and, and 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 it's a little struck by your argument. It's 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, until 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. Is your argument that it just meets the definition of a rule
because of 22710 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 two,
three specifically, and the 22710 is one of them. And the fact that it, they're,
their general application forward looking also means that this meets the definition of 2270113
of a rule. And then we also argue that the requirement that discharges be reported at a
detectable level, it violates 227102M. So I think all three of those arguments kind of go hand
at hand. Okay. Thanks. Okay. Thank you.
Good morning. I think it's no morning. And may it please the court. Lucas Weber,
appearing on behalf of Wisconsin Manufacturers and Commerce Incorporated, the other plaintiff
and respondent in this matter. I'd like to begin by talking, I guess briefly just following up on
Justice Protosay, which is question, with regard to where that rulemaking requirement is, that rule
making requirement is in 227. It exists simple, 22710 sub one, as well as in the definition of a rule
in 2270113. 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 292.31, one 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 2270113 and notwithstanding sections 22710 sub 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 agencies should 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 VPLE program.
Council, before you get to that, your comments addressed in part now, 22710. 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, what he suggests, aggressive push on 22710
sub-war? And I think we've always, we've always argued throughout this case that it requires rule
making. And the source of that requirement comes from 22710, but it also comes from the
definition of a rule in 22710. My question is, do you agree with his assertion that your position
has changed from the Court of Appeals where you were advancing arguments vis-a-vis the website
and the letter among others, that now your emphasis here is an aggressive attack under 22710?
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 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 that 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
PFAS 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 promulgate it as a rule.
And to my colleague's point that if it's something that is almost, you know, if it's much easier,
if everyone agrees, if it's a standard that very clearly will apply here, then that's certainly where
the standard 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 and
list objective criteria for what could meet the statute. That's another way that they could comply
with the requirements under 292. The VPL interim decision, which is the other issue in this case,
relates to the state's brownfield redevelopment program. So the VPLE 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. 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. What the VPLE
program does is it goes above and beyond that. The VPLE 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.
Which has the benefit to the property owner, right? A significant. So in addition to the other
people you less did, it has a significant advantage to them. Yes, a significant benefit to the property
owner. And the benefit is that it gets a clean bill of health. The property owner has remediated
that site. The department's satisfaction. Once the department is satisfied, they 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 VPLE 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 VPLE program, that interim decision is unlawful. And it's unlawful because it meets the definition
of a rule under 2270113. This court in Citizens for Sensible Zoning has broken down the definition
of a rule in 2270113 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 VPLE program participants, indeed, to all Wisconsinites, that it was not
going to do something in particular that was not going to issue. Do you have a right to
participate in the VPLE? 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 that program.
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 VPLE. Correct. Correct. They do not. But once the department
makes a general policy that they're going to apply to everybody who applies in that program,
with the VPLE 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 to 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 why the interim decision meets the
definition of a rule. It was not promulgated as a rule, and it's unlawful. As I said, I still
don't see how you have an interest that could be legally affected. If you have no interest in
having in the first place, how do you have an interest that's legally affected? Our members
rely greatly on the VPLE program. It's a tremendous program. Because 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 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 it was saying, 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 VPLE 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 2270113 test. The interim
decision certainly here has the force of law. Case law indicates that an agency action has
the effective law for two reasons, which are applicable here, when licensure can be denied,
or when the interest of individuals in a class can be legally affected through an
action. And that's exactly what the interim decision here is.
So we're back to that. Interests of individuals can be affected. What interests do your clients
have in participating in the VPLE law? 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
for the program to exist. Because 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.
What's your response to just the argument of your opposing counsel that just going back to
the force of law question. Understand when 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 Governor Walker might have done
A, and then Governor Evers might do B more often or less often. And 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 opposing counsel is that it's just that it's not a force of law question. It's just
how you exercise the discretion that you're already 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 statement of policy or there's no adoption of an interpretation of
the statute that's needed here. They just take the steps that 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 oh 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 PFAS 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 saying this? Are you making that some kind of due process
claim here that they had duty to fair notice? I mean that seems to me you didn't make that argument.
Oh in our brief here 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. I thought your argument that's pretty hyper. I heard you adopting more of the ambiguity
argument of Leather Ridge that we'll go ahead. You know what I'm going to ask. I think the
it goes hand in hand those those two arguments are related to your honor. I think the the milk
example is a 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 10? What if they spill 20? What if it's so what about all
the milk? What about old milk? That's my favorite. That's our whole other debate. But my 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 the executive has to be able to apply the
law? That's called applying the law to the facts. Yeah you're on our 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 a milk delivery truck has a hand truck full of milk crates and they bring it in and spill it
does that rise to the level? Well right but what you're arguing to us and what you did that
attorney brewers arguing to us is 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 will already have done whatever
damage it did. Yeah and you're on our that's what the statutes require. That's what two 27 10
someone requires every single so we got to see whether it's one gallon five gallons 10 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 you're trying to do. You're on our 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. Council in the interest of time as you approach the podium I'm going to start
asking you a question. A hot bench to me. Justice Dallet asked how is the government supposed to
function? The same could 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 agency is at
the federal level manager right it's not this absurd idea to promulgate very specific rules
so very specific discharges under very specific if I made the federal rules to which she is pointing
operate very very differently. EPCRA sets and they point this out in their brief a one pound
reporting threshold in a 24 hour period that is a tremendous amount of of PFAS to be discharged
it takes I think four drops in an Olympic sized pool to exceed recommended drinking standards
the that so CERCLA and EPCRA the federal standards to which they point it's a suit it's the super
fun site it's meant to address large facilities wastewater treatment plants that are pumping out
millions of gallons of contaminated material. CERCLA and EPCRA are not meant to do exactly
what the spills law is meant to do which is extend environmental protections to beyond simply huge
or point discharges like wastewater treatment plants to cover again dry cleaning facilities
which do discharge significant amounts of PFAS and specifically I want to make very clear we
hear this 9000 PFAS substances I think that's a red herring what's very clear here is PFOA
and PFOS uh leather rich PFOS discharges were eight 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 DNR's scientific evaluation that some of those 9000 substances including two of
which were found and that are at issue in leather riches property qualify. Council I wanted to just
get to just a quick question about something we talked about quite a bit and that's the definition
of a 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 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 27 10 sub one what we do have to decide here is that when the agency reads a statute applies
it to a set of factual circumstances presented for the first time that can that just constitutionally
and and again I heard very little about guidance documents their position I heard nothing about
the statute to 27 10 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 one way you could write it is to say that's what DNR did here
the guy 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 documents that doesn't get to their
other argument so all right so there's rather argument well there's two right and I think well
they do go hand in hand I think because the way I read two 27 10 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 27 10
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
sub 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 two 27 sub 10 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 statute's 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 two 27 sub 10 sub one is that it
describes only one pathway by which an agency can adopt a new interpretation not a changed
interpretation and PFAs as I think you would concede were not regulated or considered has
substances by the DNR until that announcements the agency must adopt a rule that's what Lamar
says and I know that Lamar and I understand it was a 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 the agency well Lamar
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 PFAS or or assertion
that PFAS falls under the hazardous substance it is not a change interpretation this happens
over and over again I would direct you to page 17 of our opening brief this happened in the 70s
when PCBs first people first learned about the harmful nature PCBs PCEs I don't have a full
word at the 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 the spills law has worked
for 50 years interpreting 227 10 is broadly as they propose uh is inconsistent with this
courts prior again I would encourage you to go back to the pre Lamar cases school way 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 the result was not agency you cannot act this was about whether DOT could
grant certain licenses to bus and charter bus companies and school way said well DOT 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 is pardon me that agencies are barred from acting until they
promulgate a rule that contains every single interpretation of the statute which um 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 the rule is going to have compliance
cost of greater than 10 million dollars the agency cannot promulgate it without a bill passed by
the legislature that authorizes the rule there's no question that rules under the spills law would
have that impact so we're in a situation where not only must the agency promulgate a rule to
finding 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 spread and absurdism council 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 227 10 is even mentioned sub one in the majority decision
the majority decision is solely focused on the statements and whether they qualified under
22701 sub 13 and so I think I'm now using my memory but I don't think the dissent spent much time
on 227 10 sub one you're 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 22701 sub 13 question do these statements qualify I think the dissent got
it absolutely right I do think though to nip this 227 10 argument in the bud you also have to say
something about that statute outline in our brief what that should be thank you interesting oral
arguments will adjourn and read from these
but
Thank you.
Good job, guys.
You got in the game.
Oh, yeah.
That was like, of all people.
No, that's not.
That happens, right?
Seriously, I like it.
Good to see you.
No TikTok, no Facebook, no plenty of fish.
Oh, nothing.
Yeah.
Oh, I like it.
I like it.
So, I guess they're not in here.
Do you want to bring the part two, part two?
Don't come without all what you need for up here.
Take a moment.
Take a breath.
What do you need up here?
You