In win for environmental groups, Supreme Court says DNR can limit animals, wells

By: - July 8, 2021 12:05 pm
Wisconsin dairy cows in large animal feeding operation

Wisconsin dairy CAFO (Photo courtesy of Wisconsin DNR)

In two decisions that could have far reaching effects on state agencies, the Wisconsin Supreme Court ruled on Thursday that the Department of Natural Resources (DNR) does in fact have the authority to take certain actions to protect public resources without those actions being exactly described in state statutes. 

Both cases revolved around the DNR’s authority to regulate the chemicals and pollutants that enter the state’s groundwater. 

One involves a Kewaunee County dairy that wanted to expand its factory farm operation and required a permit from the DNR to do so. 

The court ruled that the DNR is able to include certain provisions in the permit — including a limit on the number of animals in the herd and monitoring systems on nearby wells to determine if the farm is following pollution standards. 

The other case was about DNR permits that allow farms to withdraw large amounts of groundwater in places where wells are at risk of drying up. 

In both cases, the court ruled in favor of the DNR and the administration of Gov. Tony Evers — even though a 2011 law passed and signed by Republicans known as Act 21 was meant to limit the administrative authority of state agencies. Act 21 was designed to stop agencies from taking action unless that action was directly written into state law. 

But the court ruled that the law’s use of the word “explicit” rather than “specific” means that not every agency action needs to be written in the statute, just the ultimate goal the agency is trying to achieve. So in an effort to enforce state and federal clean water laws, the DNR has the authority to limit the number of cows on a factory farm. 

“We conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action,” Justice Jill Karofsky wrote in one of the majority opinions.

Both decisions were decided 4-2, with conservative Chief Justice Annette Ziegler joining the liberal majority while Justices Patience Roggensack and Rebecca Bradley dissented. Justice Brian Hagedorn did not participate in either decision.


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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.