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Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture

By Evin Bachelor, Law Fellow, Ohio State University Extension Agricultural & Resource Law Program

A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.

These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.

Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

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