Statutory Interpretation – Wisconsin Environmental Policy Act

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WI Court of Appeals – District IV

Case Name: Friends of the Black River Forest, et al., v. Wisconsin Department of Natural Resources, et al.,

Case No.: 2019AP2434

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Statutory Interpretation – Wisconsin Environmental Policy Act

Under the Wisconsin Environmental Policy Act (WEPA), a state agency contemplating a “major action[] significantly affecting the quality of the human environment” must prepare and publish an Environmental Impact Statement (EIS): a detailed report evaluating potential environmental effects. See WIS. STAT. § 1.11(2)(c) (2019-20); WIS. ADMIN. CODE § NR 150.30(4) (through May 2020). The EIS is meant to inform decision-makers and the public, so that actions are approved or denied only on full consideration of their environmental consequences. Wisconsin’s Env’t Decade, Inc. v. DNR (WED 1979), 94 Wis. 2d 263, 271, 288 N.W.2d 168 (1979). Separately, WIS. STAT. ch. 227, Wisconsin’s Administrative Procedure Act, provides a mechanism for judicial review of final agency decisions that adversely affect a person’s substantial interests. See WIS. STAT. § 227.52; Sierra Club v. DNR, 2007 WI App 181, ¶13, 304 Wis. 2d 614, 736 N.W.2d 918. The question before us is whether an EIS is itself a final agency decision subject to standalone review under § 227.52, or, alternatively, whether a court may review an EIS only on a petition for review of the agency decision regarding the proposed “major action” that the EIS analyzes.

Friends of the Black River Forest and Claudia Bricks (collectively, Friends) sought judicial review of an EIS analyzing the environmental impact of a proposed golf course. Although there was no longer any final permit in effect, Friends argued that it had an independent right to challenge the underlying EIS. The circuit court disagreed and dismissed the petition. We conclude that an EIS, by its plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a proposal without dictating any course of action or establishing the rights of any interested party. Accordingly, a party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges to the EIS in a petition for judicial review of the agency decision that the EIS analyzes. Because no such decision exists here, we affirm the dismissal of Friends’ petition.

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Derek A Hawkins is Corporate Counsel, at Salesforce.