SCOW docket: DNR can take action to prevent CAFOs from contaminating water supplies

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.
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The case: Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources

Majority/Lead Opinion: Justice Jill J. Karofsky (25 pages),  joined by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Annette K. Ziegler

Concurrence: Dallet (3 pages), joined by Walsh Bradley and Karofsky

Dissent: Justice Patience Roggensack, joined by Justice Rebecca Grassl Bradley 

Dissent: Grassl Bradley (6 pages)

Justice Brian Hagedorn did not participate.

First, a footnote from Karofsky:

Although the caption of this case is Clean Wisconsin v. DNR, that is a misnomer. Clean Wisconsin and the DNR are now aligned in view, and the Legislature and Kinnard are likewise aligned.

Kinnard Farms Inc. and the state Legislature are intervenors in the case opposing Clean Wisconsin and the five named petitioners: Lynda Cochart, Amy Cochart, Roger DeJardin, Sandra Winnemueller, and Chad Cochart.

Karofsky

The upshot

This case is about whether the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose an animal unit maximum condition and an offsite groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. for its concentrated animal feeding operation (CAFO). The circuit court decided that the DNR had the explicit authority to do so, and the court of appeals certified this appeal to us. 

We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit pursuant to Wis. Stat. §283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court. 

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Background

Kinnard operates a large CAFO in the Town of Lincoln. In 2012, Kinnard wanted to expand its dairy operation by building a second site and adding 3,000 dairy cows. (A CAFO has at least 1,000 animals.) 

The petitioners launched an appeal with the DNR of the WPDES permit the agency granted for the expansion, which was a quarter-mile away from the original facility.

The petitioners alleged that the reissued WPDES permit was inadequate because, among other failings, it did not set a "maximum number of animal units" or "require monitoring to evaluate impacts to groundwater." 

The case was heard by an administrative law judge.

The ALJ conducted a four-day evidentiary hearing during which Town of Lincoln community members who lived and worked near Kinnard's CAFO testified about the contamination of their well water and the impact of that contamination on their businesses, homes, and daily lives. The community members conveyed their belief that Kinnard's CAFO was the source of the well water contamination. The ALJ also heard testimony from a number of experts who established that up to 50% of private wells in the Town of Lincoln were contaminated and that 30% of wells tested positive for E. coli bacteria Additionally, an expert testified about the particular features of the land underlying Kinnard's CAFO which made that land extremely susceptible to groundwater contamination. According to the testimony, pollution could travel over half a mile through groundwater into wells in 24 hours.​

Based on the evidence presented, the ALJ concluded that the "level of groundwater contamination including E. coli bacteria in the area at or near the [second] site is "very unusual." Additionally, the ALJ identified "what could fairly be called a groundwater contamination crisis in areas near the site." The ALJ further found that "[t]he proliferation of contaminated wells represents a massive regulatory failure to protect groundwater in the Town of Lincoln." Of import to this appeal, the ALJ determined that, based on the facts presented, the DNR had "clear regulatory authority" to impose the two conditions disputed in this action upon Kinnard's reissued WPDES permit. 

The ALJ directed the DNR to set a maximum number of animals allowed at the facility and to establish an off-site water monitoring program.

The DNR asked the state Department of Justice in August 2015 to opine on the DNR's authority to impose the ALJ's conditions on Kinnard in light of  §227.10(2m), which limits the regulatory powers of agencies. The DOJ opined that the DNR did not have the authority. The DNR reversed the directives to set the animal maximum and establish a groundwater monitoring program.

The five individual petitioners and Clean Wisconsin contested the decision in two separate court actions, which were consolidated in Dane County Circuit Court, which reversed the DNR's decision to cancel the directives. The DNR and Kinnard appealed, and the Court of Appeals sent the case to the Supreme Court. The court granted the Joint Committee on Legislative Organization permission to intervene.

The guts

The WPDES permit program is outlined in ch. 283 of the Wisconsin Statutes, wherein the DNR is granted "all authority necessary to establish, administer and maintain a state pollutant discharge elimination system" in order to protect the "waters of this state," including groundwater and surface water, from pollution.

Karofsky, quoting the National Association of Local Boards of Health, wrote that, "[a] farm with 2,500 dairy cattle is similar in waste load to a city of 411,000 people."

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The core issue in this case involves Wis. Stat. § 227.10(2m), which dictates that "[n]o agency may implement or enforce any standard, requirement, or threshold . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter." (emphasis added). The parties dispute the meaning of "explicitly required or explicitly permitted" in the context of the DNR imposing conditions upon Kinnard's reissued WPDES permit.

Kinnard and the Legislature assert that explicit means specific, and that in order for the DNR to impose a condition upon a WPDES permit, without promulgating a rule, that condition must be listed verbatim in a statute or the administrative code. According to Kinnard and the Legislature, because there is no literal enumeration or verbatim mention of an animal unit maximum or off-site groundwater monitoring condition in the statutes or administrative code, Wis. Stat. § 227.10(2m) precludes the DNR from imposing such conditions upon Kinnard's reissued WPDES permit. Kinnard and the Legislature assert that in the absence of such statutory or administrative authority, the DNR must promulgate a rule in order to impose these conditions upon Kinnard's reissued WPDES permit. 

The DNR and Clean Wisconsin counter that such a reading of "explicitly required or explicitly permitted" is too narrow, and that Kinnard and the Legislature overlook the explicit, but broad, authority given to the DNR in Wis. Stat. §283.31(3)-(5) to prescribe such conditions. The DNR and Clean Wisconsin assert that explicit means expressly conferred and clear; and an explicit grant, like that given in § 283.31(3)-(5), can be general and broad in nature. Said differently, according to the DNR and Clean Wisconsin, an explicit grant of authority does not necessarily have to be circumscribed or exhaustively detailed. 

To resolve this issue of interpreting the term explicit, we examine its dictionary definition and Wis. Stat. §227.10(2m) in context. Explicit and specific are not synonymous. Black's Law Dictionary defines "explicit" as "clear, open, direct, or exact" and "expressed without ambiguity or vagueness." Similarly, the American Heritage Dictionary defines explicit as "fully and clearly expressed; leaving nothing implied" and "fully developed or formulated." 

Additionally, when we review Wis. Stat. § 227.10(2m) in context, we note that in Wis. Stat. §227.11(2)(a)3, the legislature used the word "specific."...This context shows us that the legislature knew how to use the word "specific," but did not do so in § 227.10(2m). As a result, we must presume the two words, explicit and specific, mean different things. Because neither the dictionary definition nor an examination of the statute in context supports the premise that the terms explicit and specific are synonyms, we conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with § 227.10(2m).

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​The Legislature gave the DNR broad authority to establish, monitor, and enforce health-based groundwater standards. The administrative code contains the State's groundwater standards and provides that the DNR "may take any actions within the context of regulatory programs established in statutes or rules outside of this chapter, if those actions are necessary to protect public health and welfare or prevent a significant damaging effect on groundwater or surface water quality."

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Wis. Stat. § 283.31(5) explicitly requires that the DNR issue permits that "specify maximum levels of discharges." Limiting the number of animal units at a CAFO is a practical way to quantify and limit the amount of agricultural waste produced and discharged from that CAFO both on-site and off-site, since the number of animal units correlates to the amount of manure and process wastewater produced....

The off-site groundwater monitoring condition assures Kinnard's compliance with effluent limitations, primarily the administrative code, which prohibits fecal contamination of a well by the landspreading of manure or process wastewater. Given the overwhelming testimony regarding contaminated wells near Kinnard's CAFO, this condition was essential to ensure that Kinnard did not further contaminate the well water of residents in the vicinity. Additionally, the susceptibility of this area to groundwater contamination, as defined by (code), further supports the ALJ's imposition of this condition in accordance with the DNR's explicit authority.

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We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit, pursuant to Wis. Stat. § 283.31(3)-(5) and related regulations. 

Roggensack

Dissent

I conclude that there is no explicit textual authority in either statute or rule that grants the DNR power to set a maximum number of animals that Kinnard's CAFO may contain or to require off-site groundwater monitoring wells. Furthermore, (state law) preclude agencies from circumventing the "explicitly permitted or explicitly required" directive of Wis. Stat. §227.10(2m) through the use of broad policy statements from other statutes. Accordingly, the WPDES permit requirements that cap the number of animal units and require groundwater monitoring through off-site wells are unlawful, and should be vacated. 

The purpose of statutory interpretation is to determine what the statute means so that it may be applied correctly. Statutory interpretation begins with the words chosen by the legislature, i.e., the text of the statute.

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When a statute is ambiguous we often consult extrinsic sources such as legislative history.  However, we also have consulted legislative history to confirm or verify a plain-meaning interpretation....

The specific questions that we must address are whether the agency requirements on the WPDES permit that caps the number of animals in the CAFO and requires off-site groundwater monitoring wells are "explicitly required or explicitly permitted by statute or by a rule."...

As the majority opinion points out, there are many dictionary definitions for "explicit." Reasonably well-informed persons could disagree about which definition best defines explicitly. Accordingly, "explicitly," as employed in Wis. Stat. § 227.20(2m), is ambiguous....

Both § 227.10(2m) and Wis. Stat. § 227.11(2)(a)1.-3. were enacted as part of 2011 Wisconsin Act 21; therefore, they are closely related. Their connection is helpful in understanding the meaning of "explicitly," as is the legislative history underlying their enactments. 

For example, what became Act 21 was introduced as Assembly Bill 8 at the request of then-Governor Walker and then-Representative Tom Tiffany. As A.B. 8 was introduced, then-Governor Walker said that the "legislation will take a multi-pronged approach to improve Wisconsin's regulatory climate [including prohibiting agencies from] creat[ing] rules more restrictive than the regulatory standards or thresholds provided by the Legislature." His statement evidences that Act 21 was anticipated to cabin administrative authority so that administrative agencies did not exceed the textual directives from the legislature. 

The importance of the executive's statement as interpretative of an enacted statute is confirmed by United States Supreme Court precedent where recognition of public statements of past presidents have been employed in statutory interpretation. For example, President Harrison is said to have voiced concerns about the coupling of train cars, when a statute addressing that issue was reviewed. 

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The legislative history underlying Wis. Stat. § 227.10(2m) is helpful to its interpretation. Initially, §227.10(2m) was written, "No agency may implement or enforce any standard, requirement, or threshold as a term or condition of any license issued by the agency unless such implementation or enforcement is expressly required or permitted by statute or by a rule." Senate Amendment 1 changed "expressly" to "explicitly" because, as a sponsoring legislator explained, "courts have interpreted expressly very broadly" and "explicitly" was seen as a stronger limitation on agency authority.

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Simply stated, the majority opinion takes apart what the legislature enacted in Act 21, and it reinstates control by agency regulation, as was the circumstance in Wisconsin before Act 21. In so doing, a majority of the court steps out of the judicial lane as an interpreter of the law and becomes a maker of law, contrary to the clear directive of the legislature in Act 21. 

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Dallet

Concurrence

I write separately to make two points regarding the dissent's use of extrinsic sources in its statutory analysis. First, while I welcome what appears to be a return to a more holistic statutory-interpretation approach, I would dispense with the formalistic requirement that we must first label a statutory term "ambiguous" before we consult extrinsic sources to determine its meaning. Second, not all extrinsic sources are created equal, and the materials the dissent uses – a governor's press release and one legislator's floor statement – are generally unreliable indicators of a statute's meaning. 

To fit its analysis within our current approach to statutory interpretation, the dissent had no choice but to label Wis. Stat. § 227.10(2m) "ambiguous" before it could look to extrinsic sources to analyze the statute's meaning. But as the dissent frames it, a statutory term is ambiguous so long as it is defined differently in multiple dictionaries. Under that framework, it is likely that all statutory terms can be labeled ambiguous and therefore extrinsic sources can always be consulted. I agree with this end result but not the process.

Instead of requiring that we first label a statute "ambiguous," the better approach is to dispense with the pretext. We should of course start with the text of the statute, but our general approach to statutory interpretation should be more comprehensive. Such a holistic methodology would lead to more transparent analyses in which the court is upfront and honest about considering relevant extrinsic sources to interpret a statute's meaning. That includes being transparent about those sources' actual analytical value when they support more than one reasonable inference.  Indeed, the court "must engage in an analysis of both the evidence that supports a given interpretation as well as the evidence that contradicts a given interpretation." Fox v. Catholic Knights Ins. Soc'y, 2003 (Abrahamson, C.J., concurring). Ultimately, carefully weighed, relevant legislative history can be an indicator of a statute's meaning and thus an important tool in statutory interpretation. 

Of course, the same extrinsic sources will not be helpful in every case, and some sources are more reliable than others. The extrinsic materials the dissent uses are uninformative and unreliable and therefore have minimal value. There is little to be gleaned about a statute's meaning from a governor's press release and one legislator's floor statement. Then-Governor Walker's press release about what he hoped an initial legislative proposal would achieve says nothing about what the legislature's final enacted text means. As for Representative Tiffany's statement during a floor debate, courts have long recognized that "debates in [the legislature] are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body."... Such cherry picking is why even those who embrace a more holistic approach to statutory interpretation have little use for a single legislator's statement. 

Nevertheless, I support the dissent's use of extrinsic sources to inform its statutory analysis. When clear and reliable, such sources can provide valuable context, regardless of whether a statute is ambiguous. The dissent, however, oversells the analytical value of two isolated and unreliable statements, thus leading it astray from the majority opinion's more reasoned interpretation of Wis. Stat. § 227.10(2m). 

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Grassl Bradley

Dissent

I write separately to refute Justice Rebecca Frank Dallet's mischaracterization of that writing. Justice Dallet attempts to signal a change in the dissent's approach to statutory interpretation. There is no deviation from our seminal case on statutory interpretation, which expounds textualism. The dissent simply applies Kalal v Circuit Court of Dane County, which says "as a general matter, legislative history need not be and is not consulted except to resolve an ambiguity in the statutory language, although legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation." 

Although Justice Dallet would prefer that Justice Shirley Abrahamson's concurrence in Kalal govern statutory interpretation in Wisconsin, the method it espoused was affirmatively rejected 17 years ago and this court continues to disavow the sort of results-oriented analysis Justice Dallet now embraces. "We do not . . . endorse the methodology advanced by the[n] chief justice [Shirley Abrahamson] in her concurrence that calls for consultation of extrinsic, non-textual sources of interpretation in every case, regardless of whether the language of the statute is clear. Such an approach subordinates the statutory text and renders the analysis more vulnerable to subjectivity." (Kalal)

While Justice Dallet "would dispense with" what she describes as "the formalistic requirement that we must first label a statutory term 'ambiguous' before we consult extrinsic sources to determine its meaning," it is no mere formality for judges who faithfully interpret statutory text. 

Because it would interfere with the type of results-oriented decision-making the majority employs in this case, Justice Dallet maligns the rule as mere "pretext" and accuses the judges who follow it of being something other than "upfront and honest about considering relevant extrinsic sources to interpret a statute's meaning." 

In doing so, Justice Dallet, once again, simply "misunderstands how to interpret legal texts."

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​While it is debatable whether reasonable minds may differ on the meaning of "explicit," there is nothing wrong with consulting the history of a statute to confirm its plain meaning; doing so does not treat such extrinsic sources as authoritative on the meaning of the text. Contrary to Justice Dallet's proffered method of interpretation, legislative history is not "an important tool in statutory interpretation" but a thoroughly discredited one...

Justice Dallet's approach would allow judges to misuse legislative history in order to give an unambiguous statute a meaning it does not bear. Adopting her approach would make the law's history superior to the law itself....

On a final note, Justice Dallet claims the dissent uses "extrinsic sources to inform its statutory analysis." It doesn't. But Justice Dallet persists in promoting, as she has done in multiple cases this term,4 a results-oriented approach to statutory interpretation to replace the neutral, text-based methodology this court adopted in Kalal – in this case encouraging "ever more enterprising uses of legislative history" to achieve desired outcomes. As it did 17 years ago, this court should resist any impulse to stray from the text in order to shape the law as it may have preferred it to be written. Preservation of the rule of law depends on it.

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