In Supreme Court Briefs, Groups Take Aim at Dangerous Act 21 Interpretation

The Supreme Court accepted briefs from environmental, public health, and sustainable farming advocates in a major water pollution case before the Wisconsin State Supreme Court. Oral arguments in the case are scheduled for April 12.

The two amicus, or “friend of the court,” briefs — one submitted by the national environmental nonprofit Food & Water Watch, alongside Family Farm Defenders and Sustain Rural Wisconsin Network, the other submitted by the Wisconsin Environmental Health Network (WEHN) — argue that Wisconsin law and common sense empower state agencies to protect the public health and welfare from pollution caused by large concentrated animal feeding operations (“CAFO”), or factory farms.  

The case, Clean Wisconsin v. Wisconsin Department of Natural Resources (“DNR”) and Kinnard Farms, involves a challenge to a state permit authorizing the expansion of a large factory farm in Kewaunee County. Local groups and residents successfully argued for a stronger permit that includes groundwater monitoring and a limit on the number of animals the facility may keep in order to protect the environment and community health. 

The primary source of pollution from factory farms in Wisconsin is the enormous amount of manure they dispose of by spreading or spraying it onto fields. Monitoring these areas and limiting the number of animals making more manure are obvious ways to limit this pollution.

But the factory farm and the Wisconsin Legislature are asking the Supreme Court to prohibit DNR from including these, or most any other, common sense controls on factory farm pollution.

The briefs from Food & Water Watch and WEHN highlight the necessity of Wisconsin agencies like DNR being able to condition pollution permits according to the agency’s unique expertise and real-world facts on the ground. The briefs take aim at arguments advanced by Kinnard Farms and the Wisconsin Legislature that Act 21 dramatically limits the authority of state agencies to only those standards or conditions specifically considered and enumerated by the legislature. This would essentially repeal many important and longstanding Wisconsin laws enacted to protect Wisconsinites from pollution and other public health threats. In their briefs, the groups argue this is “an attempt to rewrite the law in an extreme and untenable way.”

This case is the latest to reach the Supreme Court in a string of battles between the state’s legislative and executive branches. This case, which pits the Wisconsin legislature against the governor’s environmental agency, is another front in that broader confrontation.

“Kinnard Farms and the Legislature want to rewrite the law to prohibit common sense protections despite ongoing pollution of the environment and people’s drinking water, with potentially far reaching effects to environmental protection across Wisconsin,” said Tyler Lobdell, staff attorney with Food & Water Watch. “DNR and other public health agencies must retain the authority to protect against these sources of pollution.”

The Wisconsin Environmental Health Network released the following statement: “As healthcare professionals, Wisconsin Environmental Health Network relies on the State of Wisconsin to protect public health. This interpretation of Act 21 would drastically weaken those health protections that are firmly in place in our legal system and should not be sacrificed in favor of unsustainable industrial farming methods.”

The Wisconsin Supreme Court will hold oral argument in the case on April 12.

Contact: Tyler Lobdell, [email protected]