Again, the Wisconsin Supreme Court took a critical stand. Environmental advocates are optimistic that this ruling will help to ensure that polluters of “forever chemicals” like PFAS will be held more accountable. This ruling comes as local communities grapple with the widespread contamination of air, water, and soil due to these persistent chemicals.
The case started all the way back in 2021. Wisconsin Manufacturers & Commerce (WMC), the state’s largest business group, sued the Department of Natural Resources (DNR) on behalf of Leather Rich, an Oconomowoc-based dry-cleaning company. Leather Rich maintained that the DNR does not have the authority to require businesses to test for PFAS contamination. They argued that such substances need to be designated as toxic by the federal government, first.
The court’s ruling, delivered unanimously, 5-2, is a major blow to WMC’s legal strategy. This outcome is an indication that courts and the administration will be moving towards more stringent regulatory frameworks for emerging pollutants. In the majority opinion, the four liberal justices were joined by normally conservative Justice Brian Hagedorn. Indeed, the only dissenting justices—Annette Ziegler and Rebecca Bradley—spoke to the dangerous repercussions of the ruling.
Background on PFAS Contamination
PFAS, or per- and polyfluoroalkyl substances, are a group of synthetic chemicals used since the 1940s. They remain prevalent in industrial uses such as in firefighting foams and nonstick coatings. Their incredible resiliency has given PFAS the accidental moniker, “forever chemicals.” They’re hard plastics, which resist breaking down in nature. Consequently, PFAS have breached air, groundwater, and soil in abundant areas of Wisconsin.
Whether it’s Madison or Marinette, La Crosse or Wausau, cities throughout the state are actively responding to the contamination of their communities’ water supply with PFAS. In 2019, the DNR declared the presence of PFAS as a hazardous substance. Earlier this year, they stopped their $36 million, multi-year push to establish universal groundwater standards due to budgetary issues. This background sets the stage for why it is so important to have clear and consistent regulatory standards in place.
Federal regulators made historic moves last year as well, establishing first-ever national standards for the presence of PFAS in our drinking water. It is no surprise then that the Trump administration has recently proposed to gut these limits. This put the health and safety of the public at grave risk.
Impact on Businesses and Regulatory Framework
The decision which has triggered an unprecedented backlash among business interests in Wisconsin. WMC’s primary argument concerned the unfair burden the decision places on business and private property owners. Now they have to chart unpredictable regulatory waters to figure out what to list as a hazardous substance.
Supporters of the ruling are celebrating it as a major step in the right direction for public health. As Justice Janet Protasiewicz recently stressed in her concurrence, Wisconsin’s Spills Law is important…
“This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”
Supporters of the decision are confident that it strengthens regulators’ resolve to move quickly to protect people from polluters. No longer will they have to wait on official hazardous status designations.
“Wisconsin’s Spills Law safeguards human health and the environment in real time by directly regulating parties responsible for a hazardous substance discharge.”
The three dissenting justices expressed deep concern about the long-term precedent this decision would set for basic attorney-client working conditions. They contended that it is used to adopt major regulations with little, if any, notice or meaningful public comment. The dissent stated,
“a historic victory for the people of Wisconsin and my administration’s fight against PFAS and other harmful contaminants.”
From Green Bay to Wausau, cities all over Wisconsin are taking PFAS contamination head on. This ruling has the potential to set very important precedents for long overdue environmental regulations. Rob Lee, an advocate for environmental protection, expressed optimism about the future:
Dissenting Views and Future Considerations
The dissenting justices voiced substantial concerns about the implications of this ruling on fundamental legal principles. They argued that it allows for regulations to be imposed without adequate notice or deliberation. The dissent stated,
“Impose rules and penalties on the governed without advance notice, oversight, or deliberation. In doing so, the majority violates three first principles fundamental to preserving the rule of law — and liberty.”
As cities across Wisconsin continue to confront PFAS contamination, this ruling may set critical precedents for environmental regulations moving forward. Rob Lee, an advocate for environmental protection, expressed optimism about the future:
“This is a victory for the health and wellbeing of the people of Wisconsin.”
