Two of the state's most conservative appellate judges, Shelley Grogan and Maria Lazar. sitting on the most state's conservative appellate court, the District II Court of Appeals in Waukesha, ruled this week that the state Department of Natural Resources can't regulate PFAS without going through a years-long rule-making process.
The decision, now headed for the state Supreme Court, ends the way the state's 1978 Spills Law has operated for more than 45 years.
Its implications go way beyond PFAS, as the The Cap Times reports.
Talk about your game changer. As Appellate Judge Lisa Neubauer, in dissent, noted, "Today, for the first time since the statute was enacted, the court holds that the DNR must promulgate rules identifying certain substances as hazardous before the Spills Law applies to discharges of those substances."
No problem, Grogan / Lazar say in a footnote, writing, " we nevertheless note that the DNR’s argument that it “has never promulgated rules establishing a list of qualifying ‘hazardous substances’ or concentrations” is a nonstarter. Regardless of whether or not the DNR has done so in the past, it does not mean that its actions are not subject to challenge or that its past actions were in compliance with the relevant legal requirements."
Attorney General Josh Kaul has vowed to appeal the decision to the state Supreme Court.
The stakes are huge for just PFAS, never mind all the other potentially hazardous chemicals surely to be identified down the line. The U.S. Environmental Protection Agency reports that peer-reviewed studies have shown that PFAS exposure can lead to:
reproductive effects such as decreased fertility or increased high blood pressure in pregnant women;
developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations, or behavioral changes;
increased risk of some cancers, including prostate, kidney, and testicular cancers;
reduced ability of the body’s immune system to fight infections, including reduced vaccine response;
interference with the body’s natural hormones; and
increased cholesterol levels and/or risk of obesity.
The full opinion in Wisconsin Manufacturers and Commerce, Inc. and Leather Rich, Inc. v. Wisconsin Natural Resources Board and Preston Cole is here.
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