Joint Finance Committee can release PFAS funding, but doing so may open them up to legal action

A $125 million trust fund is at the center of the debate surrounding how to deal with “forever chemicals” in Wisconsin.

The trust fund was authorized as a part of the 2023-25 state budget, and signed into law in the summer of 2024 by Democratic Gov. Tony Evers.

But what that trust fund didn’t have was guidelines on how the money could be spent – something that Republican lawmakers say requires formal legislation. Evers vetoed the Republican-authored bill meant to provide that guidance, meaning that while money in the trust fund is available, it can’t be spent yet.

Democrats say that the Joint Finance Committee could release the funding and allow the Department of Natural Resources to spend it.

Republicans, however, have disputed that claim.

In a May 13, 2024 news conference, state Sen. Jesse James, R-Altoona, along with several other Republican legislators, shared their plan to vote on veto overrides for several bills, including one meant to spend the money set aside in the PFAS trust fund to help address the growing number of contaminated communities.

James said the overrides were needed because the funding couldn’t be released another way.

“A legislative committee cannot release funding,” he said. “It takes action by the Senate or the Assembly by a veto override session to get this to the original intent and scope of the legislation. You cannot do it within a committee within the Legislature.”

So basically, James is saying that the Joint Finance Committee wouldn’t have the ability to release the funding to address PFAS, even though the governor has repeatedly asked it to.

Is he right?

Releasing the funding is possible, but could lead to a lawsuit

When we reached out to James, his chief of staff, Victoria Casola, told us the senator “crossed some of his words while trying to describe the situation that the Joint Committee on Finance is in.”

“Yes, technically a legislative committee (JFC specifically) can release the funds, but a legislative committee, including JFC, cannot override a veto,” she said in a May 23, 2024 email.

She said that while an agency can submit a request for the release of money – such as the PFAS trust fund – releasing the funds after Evers’ veto would essentially rewrite the legislation, changing the legislative intent.

“That is outside the authority of the committee to do so,” she said.

But JFC has released money after a veto by the governor before, after changing parts of the plan for spending the money, so this isn’t really all that unprecedented.

Evers has already vetoed the legislation meant to guide how the PFAS money is spent, meaning that if the committee were to release the funding anyways, it could cause problems.

According to a May 28, 2024 memo from the Wisconsin Legislative Council , the committee could release the money. But by doing so, the members could be opening themselves up to legal action.

“The degree of legal risk likely depends in part on the specific purposes for which DNR proposes to use the transferred funds in a given request,” the memo said. “Because it proposes to use transferred funds to implement programs that were proposed in vetoed legislation, (the committee) approval of DNR’s February 2024 request could be especially subject to challenge.”

Basically, releasing the money to fund grants similar to the ones proposed in the vetoed legislation could be seen as creating a new program without the approval of the whole Legislature.

But the memo also points out that the Joint Finance Committee has recently modified some requests it approved to add conditions not expressly outlined in state statutes, and “even some that could be characterized as overriding a partial veto.”

So while the committee could open itself up to legal action, there is recent precedent in which they have released funding with new terms.

Tyler Byrnes, a fiscal researcher for the nonpartisan Wisconsin Policy Forum, said that even though the budget created a PFAS trust fund, Evers vetoed the bill outlining how the money could be spent and clarifying legislative intent.

“Although JFC could release the money, some might argue that the DNR doesn’t have the statutory authority needed to spend it,” he said in a June 13, 2024 email. “That is a question that’s subject to debate, and we’re not in position to say who might win that argument.”

Our ruling

James claimed that a legislative committee cannot release funding, but his staff later said he misspoke, and meant that the Joint Finance Committee of the Legislature cannot release the PFAS trust fund because Gov. Evers has already vetoed it.

Looking at that first statement, made by James, he’s wrong because the Joint Finance Committee does have the ability to release funding – and does so routinely.

But with the PFAS funding, the committee would be releasing money without a plan to spend it. And by releasing the funding, the members could actually face legal action because doing so would counteract the veto by Evers. So this case is a bit more complicated, but there is already a legislative precedent the committee has set for itself.

We rate this claim Mostly False, because the statement contains an element of truth, but ignores critical facts that would give a different impression.

This article originally appeared on Milwaukee Journal Sentinel: Joint Finance Committee can release PFAS funding, but doing so may open them up to legal action