MADISON - The Wisconsin Supreme Court said Wednesday it would hear a case that challenges the ability of the state Department of Natural Resources to enforce the cleanup of environmental contamination by the party that caused it.
Originally filed by Wisconsin Manufacturers & Commerce in 2021 , the case takes aim at Wisconsin's "spills law," which requires responsible parties to clean up contaminated properties. The business lobby alleged that the DNR's policies requiring businesses to test for so-called "forever chemicals," and clean up contamination if it exists, was unlawful because the agency had not gone through a rule-making process to designate the chemicals as hazardous. Two lower courts have previously ruled in its favor.
In the past few years, the state has used the spills law to help communities dealing with contamination from this class of chemicals, known as PFAS, which largely enter the human body from drinking water and have been linked to some cancers and reproductive problems.
Tony Wilkin Gibart, executive director of Midwest Environmental Advocates — which has been participating in the case on behalf of a number of environmental advocacy groups — said Wednesday he's glad the court took the case.
"It would have a tremendous statewide impact if the lower courts' decisions are allowed to stand," Wilkin Gibart said. "It implicates a bedrock and incredibly consequential environmental protection for the state of Wisconsin."
A spokesperson for Wisconsin Manufacturers & Commerce declined to comment on the court's announcement that it would take the case. The group has previously argued that the DNR rules impose undue costs and regulation on businesses.
More: Environmental groups worry PFAS lawsuit filed by business lobby puts Wisconsin's strongest pollution protection law at risk
Lower courts have said DNR can't use spills law to enforce PFAS cleanup
Wisconsin Manufacturers & Commerce filed the suit alongside Leather-Rich Inc., an Oconomowoc dry cleaning business. In 2022, a Waukesha County circuit judge agreed with the business lobby but stayed the implementation of the decision pending appeals, essentially leaving the spills law in place for the time being.
In March, the state Court of Appeals upheld the 2022 ruling , making way for the case to move to the state's highest court.
Wisconsin's spills law was passed in 1978 and allows the state to order testing and cleanup of sites that have been contaminated by toxic substances. In terms of PFAS, Wilkin Gibart said, it has paved the way for the state to take action to investigate, order remediation and provide resources like bottled water to communities dealing with extensive contamination, such as Marinette, Peshtigo and French Island.
More: After 3 years on bottled water, French Island residents weary of political fight over PFAS
More: Wisconsin-based Tyco Fire Products to pay out $750 million to PFAS-impacted communities
Midwest Environmental Advocates is involved in the case on behalf of Citizens for a Clean Wausau, Clean Water Action Council of Northeast Wisconsin, River Alliance of Wisconsin, Wisconsin Environmental Health Network, and Doug Oitzinger, a former mayor of Marinette and a current alderperson.
In a Wednesday press release, Oitzinger called the spills law "the only remedy" that Marinette and Peshtigo have for PFAS pollution, and said it "must be protected at all costs."
What are PFAS?
PFAS, or per- and polyfluoroalkyl substances , are a family of man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware, packaging and firefighting foam.
The family includes 5,000 compounds, which are persistent, remaining both in the environment and human body over time. The chemicals have been linked to types of kidney and testicular cancers, lower birth weights, harm to immune and reproductive systems, altered hormone regulation and altered thyroid hormones.
Madeline Heim is a Report for America corps reporter who writes about environmental issues in the Mississippi River watershed and across Wisconsin. Contact her at 920-996-7266 or mheim@gannett.com .
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court will hear case about DNR ability to make businesses clean up toxic spills
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