Business-backed law would put environmental regulations more firmly in Legislature’s hands

Steven Verburg/WSJWI Green Fire, December 4, 2018

A proposed state law would set new standards -- and a six-month deadline for compliance -- in manuals and handbooks that guide scores of programs, including Department of Natural Resources fish and wildlife management and pollution enforcement.
A proposed state law would set new standards -- and a six-month deadline for compliance -- in manuals and handbooks that guide scores of programs, including Department of Natural Resources fish and wildlife management and pollution enforcement.

In Gov. Scott Walker’s final weeks in office, the state business lobby is trying to enact measures Republican lawmakers failed to pass previously that would place more authority for environmental protections under direct control of the Legislature.

Critics said new legal standards for certain paperwork could within six months jeopardize programs that enhance fishing, hunting, natural areas and the quality of the state’s air and water. Meanwhile taxpayers would face costs for litigation and increased administrative activities, conservation groups said.

The changes are designed to ensure that business regulations receive explicit approval of accountable elected officials, said Scott Manley, senior vice president of government relations for Wisconsin Manufacturers and Commerce.

“The constitution vests lawmaking with the Legislature,” Manley said Monday. “The Legislature stands for re-election every two or four years, so they are accountable to voters.”

One provision in wide-ranging legislation that could be voted on as early as Tuesday would set standards for “guidance” documents — manuals and handbooks that state agencies such as the Department of Natural Resources write to spell out in detail how laws and administrative rules are to be implemented.

Guidance documents would be rescinded if they were found not to meet standards of legislative oversight within six months after the provision was enacted.

The DNR has guidance documents that prescribe how fish are reared for stocking in lakes and streams, how the boundaries of wetlands are delineated, how woodlands are managed, how contaminated sites must be cleaned up and how air and water are sampled for pollutants.

Wisconsin Greenfire, an organization of active and former DNR employees, said passage of the law would legally invalidate the guidance procedures for beneficial programs, raising questions about how those programs could continue.

“We simply do not believe it would be possible for state agencies to comply with this requirement for so many (guidance) documents on such a broad array of subjects in a six-month period,” said Michael Cain, who retired in 2010 as the DNR’s principal wetland and surface water lawyer after 34 years at the department.

“Vacating all pre-existing guidance documents not developed using current standards would have effects on almost every aspect of state government and the work of employees in almost every agency,” Cain said.

However, Manley complained that the use of guidance documents has proliferated in an “end run” by state agencies around Walker and the Legislature, which in 2011 began seizing tighter control of administrative rule-making, another method for detailing how laws are implemented.

The current proposal on guidance documents is part of a raft of proposals lawmakers unveiled for consideration in a fast-tracked lame-duck legislative session that began Monday. The session aims to reshuffle laws on government authority and how elections are held.

Voters ended eight years of one-party Republican rule in November by electing a Democratic governor, Tony Evers, and attorney general, Josh Kaul.

But both the state Assembly and Senate still have Republican majorities. While Walker is still able to sign bills into law, legislative leaders hope to restrict the authority of the newly elected Democrats, change election law to help a conservative state Supreme Court candidate, and revise the way state regulations are written and enforced.

Since taking control of the state government in 2011, Republicans have constrained the ability of state employees to interpret and implement laws through administrative rules. They have also loosened environmental protections and pollution enforcement.

As legislators and the governor have demanded more oversight over rule-making, the process has slowed down. It now typically takes two or more years for an administrative rule to win approval.

That allows for more scrutiny with built-in assessments of potential costs to business operators. Emergency rules can be approved more quickly, but the fast track hasn’t been used to implement laws to create tighter standards on manure handling to protect drinking water because such laws are controversial among business groups.

Assembly Bill 1070, which is being considered by Legislature, would give lawmakers more control over administrative rules.

Midwest Environmental Advocates, a Madison-based public interest law firm, said the bill’s provisions would promote litigation, waste thousands of hours of tax-funded state employee time, and insert more political interference in the state’s already lax enforcement of environmental protections.

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