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Clean Water Action Council of Northeastern Wisconsin and National Wildlife Federation v. Department of Natural Resources
(State of Wisconsin Supreme Court) For over ten years Midwest Environmental Advocates (MEA) has been taking on precedent setting environmental cases. Now, a case that began with one polluting paper mill in Green Bay is before the Wisconsin Supreme Court. Already, this case has broken barriers to public involvement in environmental decisions. The Court will wrestle with a choice that may dramatically alter what legal tools are available for environmental protection.
The Fort James Paper Company Case Surprisingly, the Wisconsin Department of Natural Resources (DNR) disputed the citizens’ right to challenge the permit, alleging that prior to seeking review of the deficiencies in the permit CWAC and NWF must have, but did not, raise their legal and technical arguments in public comments. WDNR’s position severely limited citizen’s rights to challenge the state’s decisions regarding water pollution permits - shutting out individuals who could not obtain technical or legal resources, or who didn’t use the “magic words” DNR deemed necessary to challenge deficiencies in a water pollution permit. In addition DNR denied the CWAC and NWF’s request for review as it related to compliance with the federal laws underling the pollution permit. DNR’s position, that it had no authority to review water pollution permits for compliance with the Clean Water Act, again undercut citizen rights to ensure Wisconsin waters receive at least the minimum protections all other waters in the nation receive. The Court of Appeals Fortunately, the citizens challenging the Fort James permit were persistent in their quest for clean water. That’s were Midwest Environmental Advocates got involved to represent CWAC in its challenge to the DNR’s decision. In 2010, after years of litigation, the Court of Appeals found in favor of CWA. The Court rejected the State’s interpretation, upholding citizens’ rights to challenge the terms of a water pollution permit without having to submit comments on the issues prior to the permit issuance. This was a major victory for the people of Wisconsin - the right to public process was, and continues to be, protected! The Court also held that DNR must review water pollution permits it issues for compliance with federal Clean Water Act requirement. Unfortunately, DNR decided to appeal this portion of the Court of Appeals decision. DNR denies this responsibility and is taking the question to the Wisconsin Supreme Court. |
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The Court of Appeals agreed with MEA, holding that DNR has the authority to determine if provisions in a DNR issued water pollution permit comply with the federal Clean Water Act. The DNR appealed that decision and claims that the citizens have no right under state law to challenge an issued permit that fails to comply with minimum federal Clean Water Act requirements. If the Supreme Court reverses the Court of Appeals’ decision citizens will be without a voice to challenge DNR’s decision to issue a permit to pollute Wisconsin water that is less stringent than uniform national Clean Water Act requirements. This case will likely have a dramatic impact on many other environmental cases in Wisconsin, including the currently pending challenge to Rosendale Dairy’s water pollution permit, as well as how wastewater permits are implemented in the future. Following the submission of briefs the Wisconsin Supreme Court heard oral arguments on November 3rd, 2010. Read the Wisconsin Supreme Court briefs: DNR's brief, Respondent's Brief and DNR's Reply Brief. Read the press release here. View the WisconsinEye recording of the argument here. CWAC and NWF are currently awaiting a written decision from the Court.
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Wisconsin Court of Appeals District III Decision - April 13, 2010 Response to Petition for Review Department of Natural Resources's Initial Brief Respondent's Brief - September 13, 2010 Department of Natural Resources's Reply Brief Landmark Environmental Case Before Wisconsin Supreme Court View the WisconsinEye Recording of the Wisconsin Supreme Court Oral Arguments Online |
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