Wisconsin's Environmental Decade, Inc. v. Department of Industry, Labor and Human Relations

No. 81-954 (312 N.W.2d 749, 104 Wis. 2d 640) (Wis. December 1, 1981)

ELR Digest

The Supreme Court of Wisconsin rules that the Wisconsin Environmental Policy Act (WEPA), WIS. STAT. § 1.11, applies to the promulgation of building codes but not to individual code compliance reviews. Appellant approved as consistent with the code plans for a 250,000-gallon holding tank in Door County, Wisconsin without conducting an environmental review of the project's code compliance. Initially, the court notes that a reviewing court should defer to the enforcement agency's interpretation of a statute if there is a rational basis for that interpretation. It then holds that appellant's policy of applying WEPA to code promulgation and not to its review of individual applications of the code is consistent with the Act's requirements. This policy enables appellant to conduct a broad review of agency decisions that individually might be overlooked as environmentally insignificant and assures that environmental factors are considered prior to the expenditure of significant resources. Furthermore, appellant has, in some instances, delegated its code compliance review duties to municipalities, whose decisions are not subject to WEPA. Therefore, the application of WEPA to the code compliance review process would defeat the statewide uniformity goal embodied in the state building code and envisioned by the Act.

A dissent would reule that appellant was required to comply with WEPA before approving the proposed holding tank project since that project may be a major action significantly affecting the environment of Door County. Appellant's need to facilitate its WEPA duties could be accomplished by categorizing the various types of actions likely to come within its jurisdiction as either needing or not needing environmental assessments. However, the dissent finds the record devoid of any evidence that appellant either employed the categorization methodology or applied discretionary environmental standards at the building code promulgation stage.

The full text of this opinion is available from ELR (19 pp. $3.00, ELR Order No. C-1276).

Counsel for Appellant
Arvid A. Sather
Michael, Best & Friedrich
P.O. Box 1806, Madison WI 53701
(608) 257-3501

Counsel for Respondents
Kathleen M. Falk
Wisconsin's Environmental Decade, Inc.
114 N. Carroll St., Madison WI 53703
(608) 251-7020

Brady C. Williamson
La Follette, Sinykin, Anderson & Munson
222 W. Washington Ave., Madison WI 53703
(608) 257-3911

Counsel for Amicus Curiae Wisconsin Soc'y of Architects et al.
Eric Englund
Wisconsin Soc'y of Architects
615 E. Washington Ave., Madison WI 53703
(608) 257-8477

Day, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]