Container Life Cycle Management, LLC v. DNR

2022 WI 45SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1007
COMPLETE TITLE: Container Life Cycle Management, LLC,
Petitioner-Appellant-Petitioner,
v.
Wisconsin Department of Natural Resources,
Respondent-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 397 Wis. 2d 242, 959 N.W.2d 76(2021 – unpublished)
OPINION FILED: June 23, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 6, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Stephanie Rothstein
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion,
in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
filed by David M. Lucey, Linda E. Benfield, Peter A. Tomasi,
Anne-Louise T. Mittal, and Foley & Lardner LLP, Milwaukee. There
was an oral argument by David M. Lucey.
For the respondent-respondent, there was a brief filed by
Gabe Johnson-Karp, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Gabe Johnson-Karp.
An amicus curiae brief was filed by Scott E. Rosenow and
WMC Litigation Center, Madison, for Wisconsin Manufacturers &
Commerce, Inc.
2
2022 WI 45NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1007
(L.C. No. 2019CV313)
STATE OF WISCONSIN : IN SUPREME COURT
Container Life Cycle Management, LLC,
Petitioner-Appellant-Petitioner,
FILED
v.
JUN 23, 2022
Wisconsin Department of Natural Resources,
Sheila T. Reiff
Respondent-Respondent. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion,
in which ZIEGLER, C.J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Container Life
Cycle Management, LLC (CLCM), seeks review of a per curiam
decision of the court of appeals affirming the circuit court's
dismissal of its petition for judicial review of two letters
issued by the Department of Natural Resources (DNR) in December
No. 2019AP1007
of 2018.1 The court of appeals determined that the letters at
issue were not final agency decisions subject to judicial
review.
¶2 CLCM argues that the December 14 letter2 adversely
affects its substantial interests and is subject to judicial
review regardless of whether it constitutes a "final" decision
of DNR. Further, CLCM contends that even if there is a
"finality" requirement for judicial review pursuant to Wis.
Stat. § 227.52 (2019-20),3 the December 14 letter is sufficiently
final to warrant judicial review. In response, DNR asserts that
the December 14 letter does not affect CLCM's substantial
interests and that CLCM's petition for judicial review is an
untimely attempt to seek review of an earlier letter.
¶3 For the reasons set forth below, we conclude that the
December 14 letter does not adversely affect CLCM's substantial
interests. As a result, the letter is not subject to judicial
review and the circuit court properly dismissed CLCM's petition.
¶4 Accordingly, we affirm the decision of the court of
appeals.
Container Life Cycle Mgmt., LLC v. DNR, No. 2019AP1007,
1
unpublished slip op. (Wis. Ct. App. Mar. 30, 2021) (per curiam)
(affirming order of the circuit court for Milwaukee County,
Stephanie Rothstein, Judge).
Although CLCM initially sought judicial review of two
2
letters, dated December 14 and December 26, its argument in this
court focuses on the December 14 letter only.
All subsequent references to the Wisconsin Statutes are to
3
the 2019-20 version unless otherwise indicated.
2
No. 2019AP1007
I
¶5 CLCM is engaged in the business of refurbishing used
chemical containers. At its facility in St. Francis, it
receives and cleans industrial containers such as steel and
plastic drums. The St. Francis facility is a source of air
emissions subject to DNR's regulation.
¶6 Understanding the factual background of this case
requires a short foray into the governing law and the
terminology it creates. DNR regulates CLCM through the issuance
of air permits under the federal Clean Air Act,4 Wisconsin's
analogous air pollution statutes,5 and related DNR regulations6
regarding emissions of air contaminants from stationary sources.7
¶7 The applicable statutes recognize two main categories
of stationary sources, major sources and minor sources. A major
source is one that is capable of emitting a greater amount of
contaminants than the law permits, and a minor source is a
stationary source that is not a major source.8 As relevant here,
regulations also recognize a "synthetic minor source," which is
4 42 U.S.C. § 7401 et seq.
5 Wis. Stat. ch. 285.
6 Wis. Admin. Code chs. NR 405 (July 2016) and NR 406 (Sept.
2020).
7 A "stationary source" is "any facility, building,
structure or installation that directly or indirectly emits or
may emit an air contaminant only from a fixed location." Wis.
Stat. § 285.01(41).
8 Wis. Stat. § 285.01(24), (25).
3
No. 2019AP1007
a source that has the capability to emit more contaminants than
permitted by law, but accepts permit conditions that keep its
emissions below the major source level.9
¶8 Generally, a construction permit is required to
construct a new emissions source or modify an existing source.10
In areas of the country with relatively good air quality, the
permitting framework centers on the prevention of significant
deterioration of air quality, referred to as "PSD."11 Major
sources are subject to PSD requirements, which means that
specifications in a construction permit must be based on maximum
pollution control achievable with the best available pollution
control technology, or "BACT."12
¶9 In 2017, both DNR and the United States Environmental
Protection Agency notified CLCM of a violation of an air permit
it had been issued in 2014. The source of the violation was
odors and air emissions from the St. Francis facility. Seeking
to remedy the violation, in February 2018, CLCM sought a permit
9 Wis. Admin. Code § NR 407.02(9) (Feb. 2022).
10 See Wis. Stat. § 285.60(1)(a)1.
11Both regulators and those in the industry use a variety
of acronyms. For ease of reference, we set forth the relevant
acronyms:
PSD: Prevention of significant deterioration
BACT: Best available control technology
VOC: Volatile organic compound
12See Sierra Club v. DNR, 2007 WI App 181, ¶2, 304
Wis. 2d 614, 736 N.W.2d 918.
4
No. 2019AP1007
to install a regenerative thermal oxidizer as a means of
controlling odors and emissions. DNR responded that it needed
additional information.
¶10 On June 7, 2018, CLCM submitted a revised construction
permit application. In addition to the regenerative thermal
oxidizer, the revised application sought the installation of a
new emissions source, removal of existing equipment, and the
revision of existing permit emission limits. CLCM requested a
"commence construction waiver" for the regenerative thermal
oxidizer and new emissions source that would allow construction
to begin before the permit was issued.
¶11 DNR responded to the revised application with a letter
dated June 26, 2018. In the June letter, DNR denied the
commence construction waiver on the basis that "the facility is
a PSD major source" and stated that it "may not grant a waiver"
for such a source. The June letter also stated that previous
projects undertaken at CLCM's facility should have been subject
to PSD permitting and that the facility required "an after-the-
fact PSD permit to address . . . emissions not previously
disclosed." Additionally, the June letter stated that the
revised application was incomplete and requested that CLCM
address several issues to finish the application.
¶12 Among the several issues, the June letter stated:
Because the facility is a major PSD source of
[volatile organic compounds (VOCs)], it is important
to allocate the total VOC emissions to each emission
unit to understand, for each unit, the applicability
of permitting under ch. NR 405, Wis. Adm. Code.
Please provide maximum theoretical and potential VOC
5
No. 2019AP1007
emission calculations for each significant unit at the
facility . . . .
In addition, for the units subject to major-source review, "the
facility will be expected to provide additional information in
support of a BACT determination, as applicable."
¶13 The June letter also observed that the "revised
construction permit application indicates the facility would
like to be a synthetic minor for VOC emissions." DNR expressed
concern "that the nature of the operations at the facility do
not allow for practical enforceability" of the proposed
limitation that would make CLCM's facility a synthetic minor
source. Accordingly, DNR asked CLCM to "[p]lease explain how
the facility can demonstrate compliance with this limitation."
¶14 Finally, the June letter indicated that it was "not a
complete review of the . . . construction permit application
request or the operation permit application submitted at the
same time." However, it contained a notice of appeal rights and
applicable deadlines, stating: "If you believe that you have a
right to challenge this construction waiver decision, you should
know that Wisconsin statutes establish time periods within which
requests to review Department decisions must be filed." As
relevant here, the letter set forth: "For judicial review of a
decision pursuant to §§ 227.52 and 227.53, Wis. Stats., you have
30 days after the decision is mailed, or otherwise served by the
Department, to file your petition with the appropriate circuit
court and serve the petition on the Department . . . ."
6
No. 2019AP1007
¶15 CLCM neither petitioned for judicial review of the
June letter, nor did it provide all of the additional
information DNR requested. Rather, CLCM submitted revised
calculations and technical memoranda in an attempt to
demonstrate that its facility was not a major source.
¶16 DNR responded to CLCM's revised calculations with a
letter dated December 14, 2018. According to the December 14
letter, DNR still considered CLCM's application to be
incomplete. It also explicitly stated that it disagreed with
CLCM's assertions that the facility was not a major source and
that it was not subject to an after-the-fact PSD permit. DNR
"once more" requested that CLCM submit BACT analyses.
¶17 Additionally, the December 14 letter raised the issue
of CLCM's request to be considered a synthetic minor source. It
set forth:
[T]he department has determined that such a permitting
approach is not approvable in an after-the-fact PSD
situation. In accordance with long-standing US EPA
and department policy, DNR cannot issue a construction
permit for existing equipment for which a facility
failed to obtain a PSD permit without placing BACT or
BACT-equivalent controls on the equipment in question.
¶18 The December 14 letter then listed emissions units
subject to BACT review, stating that DNR "requests again that
CLCM provide[] additional information for the units
identified . . . as well as any other modified or new emissions
units that are sources of VOC emissions, sufficient for the
department to make a BACT determination for each unit." It
additionally reiterated that information requested in the June
7
No. 2019AP1007
letter remained outstanding. DNR specifically stated that it
"again requests that CLCM provide additional information to
explain how it proposes to demonstrate compliance with its
proposed VOC cap" as would be necessary for CLCM to be
classified as a synthetic minor source.
¶19 As the June letter did, the December 14 letter advised
that it was "not a complete review" of either the construction
permit application or operation permit application and that
"[a]dditional information or revisions of the application
materials may be needed as the review proceeds." The December
14 letter did not contain any notice of appeal rights.
¶20 After CLCM followed up with a letter, DNR responded
with another letter of its own on December 26, 2018. In the
December 26 letter, DNR took the position that "a joint meeting
between the department, CLCM, the City of St. Francis, and
elected officials would not be a productive discussion as the
department has not changed its position regarding CLCM's
permitting obligations." The December 26 letter also stated
that "the department has consistently indicated since June of
2018 that there was reason to believe the facility should have
been permitted as a PSD major source since at least 2014" and
again requested that CLCM submit the information requested in
both the June and December 14 letters.
¶21 On January 11, 2019, CLCM filed a petition for
judicial review in the circuit court. In the petition, CLCM
requested the court to review the December 14 and December 26
8
No. 2019AP1007
"determinations" that it is subject to PSD standards and
permitting requirements.
¶22 DNR moved to dismiss the petition, arguing that the
December letters contain only preliminary agency decisions and
are thus not subject to judicial review. It further contended
that the final decision on the PSD determination was the June
letter, not the December letters, and characterized CLCM's
petition as an untimely challenge to the June letter.
¶23 The circuit court agreed with DNR and dismissed the
petition. In reaching its conclusion, the circuit court
determined that "as to the Department's designation of CLCM as a
major source, clearly and definitively the Department advised
the company with the June 26 letter of its determination."
Additionally, the circuit court stated with regard to the June
letter: "Clearly and unequivocally the Department stated its
position and advised CLCM of its appeal rights and how it could
proceed going forward with regard to that determination that
they were a major source." In contrast, the December letters
"did not make a final determination . . . that satisfies the
Court that a substantial right or interest of the company here,
the petitioner, has been conclusively determined." CLCM moved
for reconsideration, which the circuit court denied.
¶24 CLCM appealed, and the court of appeals affirmed the
circuit court, determining that "the [December] letters are not
final agency decisions subject to judicial review." Container
Life Cycle Mgmt., LLC v. DNR, No. 2019AP1007, unpublished slip
op., ¶1 (Wis. Ct. App. Mar. 30, 2021) (per curiam). After
9
No. 2019AP1007
observing that the permitting process is ongoing, the court of
appeals stated that "[e]ven assuming for the sake of argument
that a PSD major source designation is immediately subject to
judicial review, that designation was not made in the December
letter." Id., ¶18. Instead, such a determination arose from
the June letter, and "[i]f there was a time to seek judicial
review of the PSD major source designation, it was when CLCM
received the June letter for which judicial review is no longer
available." Id., ¶¶18-19. CLCM petitioned for this court's
review.
II
¶25 We are asked to determine whether the December 14
letter issued by DNR is subject to judicial review.13 Whether an
administrative decision is subject to judicial review is a
question of law, which we review independently of the
determinations rendered by the circuit court and court of
appeals. Kimberly Area Sch. Dist. v. LIRC, 2005 WI App 262, ¶9,
288 Wis. 2d 542, 707 N.W.2d 872.
13Although CLCM raised the December 26 letter in its
petition for judicial review, it did not develop an argument
related to the December 26 letter at the court of appeals.
Container Life Cycle Mgmt., No. 2019AP1007, at ¶12 n.2. The
court of appeals determined that "given that the December 26
letter reiterates the DNR's same position from the December 14
letter, the December 26 letter suffers from the same defects and
is not a final agency decision subject to judicial review." Id.Here, CLCM again argues exclusively based on the December 14
letter and we thus need not address the December 26 letter in
our analysis. See Sw. Airlines Co. v. DOR, 2021 WI 54, ¶32
n.10, 397 Wis. 2d 431, 960 N.W.2d 384 (explaining that "we
generally do not address undeveloped arguments").
10
No. 2019AP1007
¶26 In our review, we interpret Wis. Stat. § 227.52.
Statutory interpretation likewise presents a question of law
this court reviews independently of the determinations of the
circuit court and court of appeals. State ex rel. Anderson v.
Town of Newbold, 2021 WI 6, ¶13, 395 Wis. 2d 351, 954
N.W.2d 323.
III
¶27 We begin by setting forth the framework for analysis
regarding whether an administrative decision is subject to
judicial review. Subsequently, we apply that framework to the
facts of this case.
A
¶28 Generally, the State is entitled to sovereign immunity
and cannot be sued without its consent. PRN Assocs. LLC v. DOA,
2009 WI 53, ¶51, 317 Wis. 2d 656, 766 N.W.2d 559. For purposes
of sovereign immunity, a suit against a state agency constitutes
a suit against the State. Id. As such, "orders of
administrative agencies are not reviewable unless made so by
statute." Waste Mgmt. of Wis., Inc. v. DNR, 128 Wis. 2d 59, 87,
381 N.W.2d 318 (1986). If an attempt is made to appeal from a
nonappealable order, the court lacks jurisdiction for any
purpose, except to dismiss the action. Friends of the Earth v.
Pub. Serv. Comm'n, 78 Wis. 2d 388, 404, 254 N.W.2d 299 (1977).
¶29 The applicable statute here is Wis. Stat. § 227.52,
which sets forth the general rule regarding the reviewability of
administrative agency decisions, as well as several exceptions.
As relevant here, § 227.52 states: "Administrative decisions
11
No. 2019AP1007
which adversely affect the substantial interests of any person,
whether by action or inaction, whether affirmative or negative
in form, are subject to review as provided in this
chapter . . . ."
¶30 The issue raised in this case implicates what it means
for a decision to "adversely affect the substantial interests"
of a party. This case does not represent this court's first
dalliance with this phrase or its statutory predecessor.
¶31 In Pasch v. DOR, 58 Wis. 2d 346, 206 N.W.2d 157(1973), we addressed Wis. Stat. § 227.15 (1973-74), the
predecessor statute to § 227.52. That statute provided that
administrative decisions were reviewable if they "directly
affect the legal rights, duties or privileges of any person."
Id. at 351 (quoting Wis. Stat. § 227.15 (1973-74)).
¶32 Addressing "an order which determined that the
commission had the authority to proceed to a hearing and
determination upon the merits," id. at 355, the Pasch court
concluded that such an order was not subject to judicial review.
Specifically, it determined that "[t]he order of the commission
finding jurisdiction in the commission to proceed to a hearing
upon merits of the controversy does not directly affect the
legal rights, duties or privileges of the appellant." Id. at
357. It characterized the order as "interlocutory" rather than
"final" because "the substantial rights of the parties involved
in the action remain undetermined and . . . the cause is
retained for further action." Id. at 354.
12
No. 2019AP1007
¶33 In reaching this determination, the court observed
that courts "are averse to review interim steps in an
administrative proceeding." Id. (citation omitted).
Ultimately, the court set forth:
The ultimate test of reviewability is not to be found
in an overrefined technique, but in the need of the
review to protect from the irreparable injury
threatened in the exceptional case by administrative
rulings which attach legal consequences to action
taken in advance of other hearings and adjudications
that may follow.
Id. at 356 (quoting Columbia Broad. Sys. v. United States, 316
U.S. 407, 425 (1942)).
¶34 Two years after Pasch, the legislature amended the
subject statute. § 19, ch. 414, Laws of 1975. In doing so, it
discarded the "legal rights, duties or privileges" language and
utilized verbiage that closely follows that in Pasch:
"substantial interests." Id.
¶35 Subsequent cases have consequently continued to look
to Pasch for guidance. See, e.g., Waste Mgmt., 128 Wis. 2d at
88-89; Sierra Club v. DNR, 2007 WI App 181, ¶¶13-16, 304
Wis. 2d 614, 736 N.W.2d 918. We do the same here, and emphasize
Pasch's indication that although "finality" is a consideration
in determining whether "substantial interests" are affected, it
is not the sole indicator of reviewability.
¶36 Case law additionally demonstrates that other factors
are taken into account in determining whether substantial
interests are affected such that an agency action is reviewable.
For example, we have stated that generally "[t]he legislative
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No. 2019AP1007
declaration that decisions of administrative agencies be
reviewed . . . envisions a review of a decision which must be
supported by a record and be based upon findings of fact and
conclusions of law." Wis.'s Env't Decade, Inc. v. Pub. Serv.
Comm'n, 93 Wis. 2d 650, 658, 287 N.W.2d 737 (1980). In our
review, we are guided by the overarching principle that it is
the substance of the order, and not its form or label, that is
the focus. Sierra Club, 304 Wis. 2d 614, ¶14.
B
¶37 With this background and framework of analysis in
hand, we focus our review on the December 14 letter. CLCM
asserts that the December 14 letter is amenable to judicial
review because it adversely affects CLCM's substantial interests
in that the letter subjects CLCM to more burdensome PSD
permitting requirements.14
¶38 In contrast, DNR contends that judicial review is
available for those agency decisions that conclusively determine
legal rights only, and not for preliminary determinations in an
ongoing permitting process. In DNR's view, the December 14
letter did not conclusively determine any of CLCM's substantial
interests, and the petition for judicial review of the December
14CLCM additionally argues that past cases have instituted
a "finality" requirement for review of administrative decisions,
and that there is no basis for such a requirement in the text of
Wis. Stat. § 227.52. As set forth above, existing precedent
indicates that there is no such "finality" requirement and we
need not address this argument further.
14
No. 2019AP1007
14 letter is really an untimely attempt to challenge the PSD
determination made in the June letter.
¶39 We agree with DNR that the December 14 letter does not
affect CLCM's substantial interests. As a result, the letter is
not subject to judicial review and the circuit court properly
dismissed CLCM's petition.
¶40 Like the order at issue in Pasch, the December 14
letter is unreviewable because "the substantial rights of the
parties involved in the action remain undetermined and . . . the
cause is retained for further action." Pasch, 58 Wis. 2d at
354. The letter itself emphasized that it "is not a complete
review" of the permit applications at issue.
¶41 It further advised that DNR considered CLCM's
application to be incomplete and requested additional
information to remedy the defects. This is another indication
of an ongoing review where the "cause is retained for further
action" by the agency. Rather than "a decision . . . supported
by a record and . . . based upon findings of fact and
conclusions of law," Wis.'s Env't Decade, 93 Wis. 2d at 658, the
letter indicates that it is seeking information to build such a
record. Additionally, although not dispositive, we also observe
that the December 14 letter did not contain a statement of
appeal rights.
¶42 Contrary to CLCM's argument, the December 14 letter
did not determine that CLCM's facility is a major source subject
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No. 2019AP1007
to PSD permitting requirements.15 Instead, the December 14
letter merely referenced the June letter: "In a letter dated
June 26, 2018, the department informed CLCM that the St. Francis
facility required an after-the-fact PSD permit . . . ."
Although the June letter is not a model of clarity, it was in
that letter that DNR set forth: "The department has determined
that . . . the facility is a PSD major source."
For this reason, the federal cases cited by CLCM are
15
inapposite. CLCM seeks support in Puerto Rican Cement Co., Inc.
v. U.S. Environmental Protection Agency, 889 F.2d 292 (1st Cir.
1989), and Hawaiian Electric Co., Inc. v. U.S. Environmental
Protection Agency, 723 F.2d 1440 (9th Cir. 1984).
In Puerto Rican Cement, the petitioner sought a "non-
applicability determination" that would allow it to avoid PSD
permitting requirements for construction of a new kiln. Puerto
Rican Cement, 889 F.2d at 294. EPA denied the non-applicability
determination and the petitioner sought judicial review. The
First Circuit concluded that EPA's denial of the non-
applicability determination was reviewable, stating that "the
legal question at issue——the applicability of PSD review——is
plainly separable from, and therefore collateral to, all the
matters that the agency would consider in a PSD review itself."
Id. at 295.
Hawaiian Electric Co. also involved an EPA determination
that a new PSD permit was required due to a "major
modification." Hawaiian Elec. Co., 723 F.2d at 1442. The Ninth
Circuit held that such a determination was subject to judicial
review. It reasoned: "although the application of the major
modification definition is an interim step in the PSD permitting
process, it has immediate legal consequences, i.e., the
requirement of PSD review." Id.CLCM contends that these two cases together "stand for the
proposition that a decision regarding the applicability of PSD
permitting requirements is sufficiently final to warrant
judicial review." However, the December 14 letter made no
decision regarding the applicability of PSD permitting
requirements. CLCM's invocation of Puerto Rican Cement and
Hawaiian Electric Co. is therefore unpersuasive.
16
No. 2019AP1007
¶43 Additionally, the December 14 letter did not
conclusively determine that CLCM's facility cannot be a
synthetic minor source. Conversely, it requested additional
information from CLCM "to explain how it proposes to demonstrate
compliance with its proposed VOC cap" as is required for it to
be classified as a synthetic minor source. The letter contains
no decision regarding whether CLCM qualifies as a synthetic
minor source, which makes sense given its request for additional
information so it may make such a determination.
¶44 The fact that the December 14 letter requested
additional information, leading to a possible increase in CLCM's
costs, does not transform it into a reviewable decision. CLCM
contends that the practical effect of the December 14 letter is
to subject it to costs that it cannot recover if DNR ultimately
decides that CLCM is a minor source or synthetic minor source.
However, a permit is required for CLCM to do business. Having
already notified CLCM of its "determin[ation]" that "the
facility is a PSD major source" in the June letter, DNR advising
CLCM of the next steps in the December letter resolves nothing
regarding CLCM's rights. Instead, it is an indication that the
process is ongoing. Thus, a letter indicating that CLCM simply
must comply with the process to get a permit, which may accrue
some cost to CLCM, does not adversely affect CLCM's substantial
interests.
¶45 Our determination that CLCM's substantial interests
are not adversely affected is based upon a review of the record
and is informed by existing precedent. In Pasch, the appellant
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No. 2019AP1007
argued that the issue should be decided before the appellant was
put to the expense of a lengthy proceeding. Pasch, 58
Wis. 2d at 357. In response to this argument the court declined
to consider the increased cost that may be placed on the
appellant:
We are mindful of the fact that much time and expense
might be saved if the courts would decide at this time
that the commission had exceeded its jurisdiction;
however, this consideration is outweighed by the
resultant delay that would accompany review of these
agency determinations and the disruption of the
agency's orderly process of adjudication in reaching
its ultimate determination.
Id.; see also State v. WERC, 65 Wis. 2d 624, 630-33, 223
N.W.2d 543 (1974); Sierra Club, 304 Wis. 2d 614, ¶16.
¶46 Further, allowing entities to challenge administrative
decisions just because the decision would cause the entity to
incur substantial costs would create an arbitrary and unworkable
system. For example, how much money expended would be enough to
secure judicial review? Where would such a line be drawn?
¶47 Reaching the conclusion that CLCM seeks would
essentially allow an entity to challenge any decision in the
administrative process if it caused them to incur costs. This
would greatly expand the world of decisions subject to review
and it is hard to imagine an administrative decision that would
not be reviewable under such a standard. CLCM's argument would
thus lead to an unreasonable result because it would allow
parties to challenge virtually any step in the permitting
process. See Brown County v. Brown Cnty. Taxpayers Ass'n, 2022
18
No. 2019AP1007
WI 13, ¶29, 400 Wis. 2d 781, 971 N.W.2d 491 (explaining that
statutes must be interpreted "to avoid absurd or unreasonable
results"). This would be burdensome on courts, agencies, and
parties and would significantly delay permitting processes and
interrupt business operations.
¶48 U.S. Army Corps of Engineers v. Hawkes Co., Inc., 578
U.S. 590 (2016), cited by CLCM, does not compel a different
result. In that case, the U.S. Army Corps of Engineers issued a
jurisdictional determination that certain property contained
"water of the United States." Id. at 596. Hawkes challenged
the determination, and the Corps contended that the revised
jurisdictional determination was not a final agency action. Id.
at 597.
¶49 The United States Supreme Court disagreed with the
Corps. Observing the principles guiding its decision as to
whether an agency decision is "final" for purposes of the
Administrative Procedure Act,16 it wrote, "First, the action must
mark the consummation of the agency's decisionmaking process——it
must not be of a merely tentative or interlocutory nature. And
second, the action must be one by which rights or obligations
have been determined, or from which legal consequences will
flow." Id. Applying these principles, the Court determined
Unlike in Wisconsin, federal courts follow a "finality"
16
requirement when determining reviewability under the federal
Administrative Procedure Act. See Bennett v. Spear, 520 U.S.
154, 175 (1997) ("The APA, by its terms, provides a right to
judicial review of all 'final agency action for which there is
no other adequate remedy in a court' . . . ."); 5 U.S.C. § 704.
19
No. 2019AP1007
that the jurisdictional determination was sufficiently final to
be subject to judicial review:
[W]hile no administrative or criminal proceeding can
be brought for failure to conform to the approved
[jurisdictional determination] itself, that final
agency determination not only deprives respondents of
a five-year safe harbor from liability under the Act,
but warns that if they discharge pollutants onto their
property without obtaining a permit from the Corps,
they do so at the risk of significant criminal and
civil penalties.
Id. at 600.
¶50 Here, in contrast, the December 14 letter does not
subject CLCM to liability as did the jurisdictional
determination at issue in Hawkes. As explained above, it is not
the consummation of the decisionmaking process but instead is
just a step along the way.
¶51 In sum, we conclude that the December 14 letter does
not adversely affect CLCM's substantial interests. As a result,
the letter is not subject to judicial review and the circuit
court properly dismissed CLCM's petition.
¶52 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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¶53 REBECCA GRASSL BRADLEY, J. (dissenting). "The
availability of judicial review is the necessary condition,
psychologically if not logically, of a system of administrative
power which purports to be legitimate, or legally valid." Louis
L. Jaffe, The Right to Judicial Review I, 71 Harv. L. Rev. 401(1958). In accordance with this principle, the legislature has
afforded judicial review for "[a]dministrative decisions which
adversely affect the substantial interests of any person,
whether by action or inaction, whether affirmative or negative
in form," subject to certain exceptions.1 Wis. Stat. § 227.52(2019–20). The December 14 decision by the Department of
Natural Resources (the Department) to foreclose a particular
permitting approach "adversely affect[s]" Container Life Cycle
Management, Inc.'s (CLCM) "substantial interests" by forcing
CLCM to undergo a more time-consuming, expensive, and burdensome
permitting process.
¶54 In reviewing CLCM's challenge, the majority applies a
finality requirement despite agreeing the law does not impose
one, thereby denying CLCM its statutorily available review. The
majority determines nothing in the December 14 letter
constitutes a reviewable agency decision, minimizing the letter
as merely "a step along the way" in CLCM's permit application
process.2 This is not an accurate representation; the letter
1 Standing to bring the challenge under Wis. Stat.
§ 227.53(1), a separate threshold for judicial review, is not
contested in this case.
2 Majority op., ¶50.
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unequivocally decides a proposed permitting approach "is not
approvable." Contrary to the majority's decision, a
determination on the availability of a particular permitting
process meets the criteria of Wis. Stat. § 227.52. Even
applying an express finality requirement, federal courts have
deemed this type of determination subject to judicial review.
Whether properly applying the plain terms of the statute or
improperly applying the precedent developed under its prior
language, CLCM is entitled to judicial review of the December 14
determination on the applicability of a permitting approach.
Because the majority unlawfully denies CLCM judicial review, I
dissent.
I. BACKGROUND
A. The Department Letters
¶55 As the majority acknowledges, multiple potential
permitting options cover the contaminants at issue; they are
outlined in Wis. Admin. Code chs. NR 405, 406, and 407. CLCM
argues its facility should be covered by permitting requirements
under chapters NR 406 and 407, which apply to natural minor and
synthetic minor sources, as opposed to the more burdensome PSD
permitting requirements under chapter NR 405, which apply to
major sources. Accordingly, CLCM frames its case as resting on
which of the "possible permitting regimes" the Department
determines governs——one of which is "more costly and
protracted."
¶56 CLCM's St. Francis facility was permitted as a minor
source since 2015; in 2018, however, the Department told CLCM
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this permitting classification had been made in error. CLCM
submitted a pre-construction air pollution permit application in
February 2018 to install a Regenerative Thermal Oxidizer (RTO)
for purposes of reducing air emissions, which the Department
authorized the next month under an exemption provided in Wis.
Admin. Code § NR 406.04(2).3 On June 7, CLCM submitted a revised
air pollution permit application in addition to a commence
construction waiver request related to a different project.
¶57 The Department's June 26 letter addressed both
applications. The letter denied the commence construction
waiver because the Department deemed the facility a major source
under Wis. Admin. Code ch. NR 405, which does not allow such
waivers. The letter gave notice of the right to appeal this
decision. The letter also declared the revised permit
application incomplete and requested additional information.
¶58 Among four requests in the June 26 letter, the
Department sought information to aid its assessment of whether
the facility could be permitted as a synthetic minor source
under Wis. Admin. Code ch. NR 407. That request explained:
The revised construction permit application indicates
the facility would like to be a synthetic minor for
VOC emissions under ch. NR 407, Wis. Adm. Code. The
facility is currently proposing an emission limitation
equivalent to 99.5 tons per year. The department is
3"This section does not provide an exemption from
construction permit requirements for a source that is required
to obtain a permit under ch. NR 405 [governing Prevention of
Significant Deterioration] or 408 [governing construction
permits for direct major sources in nonattainment areas] or s.
NR 446.03(2)(a) [governing mercury emission limits]." Wis.
Admin. Code § NR 406.04.
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concerned that the nature of the operations at the
facility do not allow for practical enforceability of
this proposed limitation. Please explain how the
facility can demonstrate compliance with this
limitation, given that a significant portion of VOC
emissions from the facility are considered fugitive.
The Department expressed "concern[]" that this emissions
limitation related to the synthetic minor designation could not
be enforced, but requested an explanation on how the facility
could comply. Logically, the framing of the Department's
inquiry establishes it had not yet determined whether CLCM could
obtain the synthetic minor permitting designation; the June 26
letter left that possibility open.
¶59 In response to the June 26 letter, CLCM prepared and
submitted additional analyses to the Department on August 9 and
September 24, 2018, to show the facility was not a major source.
On October 18 and November 12, 2018, the Department met with
CLCM regarding the 18-RAB-029 construction permit, during which
meeting the Department suggested it could consider as a
"possible permitting approach . . . a facility-wide cap on VOC
emissions of 40 tons per year (TPY) . . . as a PSD-avoidance
limit for the proposed capacity increase for the scrubber-
controlled wash processes." CLCM submitted a revised permit
application on November 28, seeking approval as a synthetic
minor source.
¶60 In contrast to the June 26 letter, the December 14
letter terminated the inquiry into whether the "possible
permitting approach discussed during [the November 12, 2018]
meeting . . . could be considered as a PSD-avoidance limit for
the proposed capacity increase for the scrubber-controlled wash
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processes." The letter states, "[u]pon further consideration,
the department has determined that such a permitting approach is
not approvable in an after-the-fact PSD situation." The
Department explained it could not approve this permitting
approach because it "cannot issue a construction permit for
existing equipment for which a facility failed to obtain a PSD
permit without placing BACT or BACT-equivalent controls on the
equipment in question." The Department concluded "[t]he
scrubber-controlled wash processes were clearly modified by
construction permit 14-RSG-142 and therefore require BACT or
BACT-equivalent controls."4 In other words, the Department
4 That portion of the letter provided, in full:
On November 12, 2018, DNR staff and representatives of
CLCM held a meeting to discuss CLCM's application for
construction permit 18-RAB-029. One possible
permitting approach discussed during that meeting was
whether a facility-wide cap on VOC emissions of 40
tons per year (TPY) could be considered as a PSD-
avoidance limit for the proposed capacity increase for
the scrubber-controlled wash processes. During this
meeting, DNR cautioned CLCM that such a plan was
complicated by the unresolved concerns over PSD status
of the 2014 project. Upon further consideration, the
department has determined that such a permitting
approach is not approvable in an after-the-fact PSD
situation. In accordance with long-standing US EPA
and department policy, DNR cannot issue a construction
permit for existing equipment for which a facility
failed to obtain a PSD permit without placing BACT or
BACT-equivalent controls on the equipment in question.
The scrubber-controlled wash processes were clearly
modified by construction permit 14-RSG-142 and
therefore require BACT or BACT-equivalent controls.
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concluded CLCM needed to install BACT or BACT-equivalent
controls to conduct its refurbishing business. Under these
facts, the majority's decision to foreclose statutorily
prescribed judicial review is in error.
B. Judicial Review Under Wis. Stat. § 227.52¶61 In 1943, the legislature created Chapter 227 to govern
administrative procedure and review. § 1, ch. 375, Laws of
1943; see also Ralph M. Hoyt, The Wisconsin Administrative
Procedure Act, 1944 Wis. L. Rev. 214. As relevant to this case,
the Act provided for judicial review of "[a]dministrative
decisions in contested cases, whether affirmative or negative in
form," subject to certain exceptions. Wis. Stat. § 227.15(1943–44).5 The Act defined "[c]ontested case" as "a proceeding
in which the legal rights, duties, or privileges of specific
parties are required by law to be determined by decisions or
orders addressed to them or disposing of their interests, after
opportunity for hearing." Wis. Stat. § 227.01(3) (1943–44). In
1945, the language concerning the "legal rights, duties or
privileges" was added directly to the judicial review statute
under § 227.15. See § 18, ch. 511, Laws of Wis. 1945.
The Department sent another letter on December 26, in which
it concluded it "has not changed its position regarding CLCM's
permitting obligations or the operation of the [RTO]." The
Department emphasized, "With regards to the source status of the
facility, the department has consistently indicated since June
of 2018 that there was reason to believe the facility should
have been permitted as a PSD major source since at least 2014."
The Department further requested CLCM submit the required
information "to keep the permitting process moving forward."
5Wis. Stat. § 227.15 was renumbered to Wis. Stat. § 227.52in 1986. See 1985 Wis. Act 182, § 35.
6
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¶62 In Pasch v. DOR, 58 Wis. 2d 346, 353, 206 N.W.2d 157(1973), this court interpreted Wis. Stat. § 227.15 to require
finality, a conclusion it grounded in what it perceived to be a
"legislative intent . . . to limit judicial review of
administrative agency 'decisions' to final orders of the
agency." Pasch embraced consequentialist reasoning for its
atextual conclusion, emphasizing the "resultant delay that would
accompany review of these agency determinations and the
disruption of the agency's orderly process of adjudication in
reaching its ultimate determination." Id. at 357. A finality
requirement is nowhere to be found in the statutory language.
¶63 1976 brought a significant reworking of Wisconsin's
Administrative Procedure Act. The legislature replaced the
"directly affect the legal rights, duties or privileges"
language with the requirement that an administrative decision
"adversely affect" "substantial interests." § 19, ch. 414, Laws
of 1975. Despite these statutory changes, Wisconsin courts have
continued to apply the prior language as construed in Pasch.
This case gave the court an opportunity to apply the text of the
amended statute, ending our inappropriate reliance on the so-
called "legislative intent" supposedly motivating the prior
statutory text. The majority takes a pass, perpetuating a
misinterpretation of the statutes governing judicial review
grounded in the majority's concerns over the consequences of its
decision rather than what the law commands.
II. DISCUSSION
A. Wis. Stat. § 227.52 Does Not Require Finality
7
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¶64 The majority correctly concludes Wis. Stat. § 227.52does not require finality and accurately recites the statutory
standard, which subjects administrative decisions to judicial
review if they "adversely affect the substantial interests of
any person[.]" Nevertheless, the majority imposes a de facto
finality requirement in concluding the Department's decision
does not adversely affect CLCM's substantial interests because
it "did not conclusively determine that CLCM's facility cannot
be a synthetic minor source."6 In so concluding, the majority
smuggles into its analysis the defunct language from an earlier
version of the statute and relies on faulty precedent
interpreting it.
¶65 The majority maintains "existing precedent indicates
that there is no . . . 'finality' requirement."7 Existing
precedent (although wrong) belies the majority's assertion; the
court of appeals consistently applies a finality requirement
under Wis. Stat. § 227.52. See, e.g., Friends of the Black
River Forest v. DNR, 2021 WI App 54, ¶9, 964 N.W.2d 342("Although Wis. Stat. § 227.52 does not use the term 'final,'
'case law has established that the legislative intent was to
Majority op., ¶43; see also, id., ¶44 ("[A] letter
6
indicating that CLCM simply must comply with the process to get
a permit, which may accrue some cost to CLCM, does not adversely
affect CLCM's substantial interests."); id., ¶47 ("CLCM's
argument would thus lead to an unreasonable result because it
would allow parties to challenge virtually any step in the
permitting process. . . . This would be burdensome on courts,
agencies, and parties and would significantly delay permitting
processes and interrupt business operations.").
7 Id., ¶37 n.14.
8
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limit judicial review to final [decisions] of [an] agency.'");
Sierra Club v. DNR, 2007 WI App 181, ¶13, 304 Wis. 2d 614, 736
N.W.2d 918) ("Although this statute does not require that an
administrative decision be 'final' in order to be subject to
judicial review, case law has established that the legislative
intent was to limit judicial review to 'final orders of the
agency.'"); Kimberly Area Sch. Dist. v. LIRC, 2005 WI App 262,
¶13, 288 Wis. 2d 542, 707 N.W.2d 872 ("Here, the Commission's
decision is not final and, therefore, it is not subject to
judicial review."); Deering v. LIRC, No. 2011AP803, unpublished
slip op., ¶11 (Wis. Ct. App. Mar. 15, 2012) ("While there is no
express requirement in these provisions that an agency order
must be final in order to be subject to judicial review, case
law has established that Wis. Stat. ch. 227 limits judicial
review to agency orders that are final. . . . A final order
'directly affects the legal rights, duties, or privileges of a
person.'" (quoting Pasch, 58 Wis. 2d at 356)). The majority's
refusal to acknowledge the decisive role finality has played in
judicial review perpetuates confusion in this area of the law.
¶66 The historical backdrop against which the legislature
amended Wis. Stat. § 227.52 confirms the law never required
finality and the judiciary imposed it in an inappropriate
exercise of judicial policymaking. The period from the 1960s to
the 1970s produced "accelerated" change in administrative law.
See Bernard Schwartz, Some Recent Administrative Law Trends:
Delegations and Judicial Review, 1982 Wis. L. Rev. 208, 209.
"By the 1960's, the administrative law issues that were crucial
9
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in 1940 seemed as though drawn from another world." Id.; see
also Reuel E. Schiller, Enlarging the Administrative Polity:
Administrative Law and the Changing Definition of Pluralism,
1945–1970, 53 Vand. L. Rev. 1389 (2000). One commentator
suggested "a potent critique of the administrative state that
emerged at the beginning of the 1960s" recognized agencies were
"arbitrary, inefficient, and inevitably captured by the
interests they were supposed to regulate," leading in part to
"increased judicial scrutiny of administrative action." Reuel
E. Schiller, Rulemaking's Promise: Administrative Law and Legal
Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139, 1142
(2001). In 1971, the D.C. Circuit observed, "We stand on the
threshold of a new era in the history of the long and fruitful
collaboration of administrative agencies and reviewing courts."
Env't Def. Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 597 (D.C.
Cir. 1971).
¶67 On the heels of this expanding administrative state
and a corresponding increase in scrutiny over its actions, the
legislature in 1976 broadened the types of decisions afforded
judicial review. See § 19, ch. 414, Laws of 1975. Governor
Lucey vetoed the bill implementing these changes——which the
legislature overrode——because he was concerned it "enhances the
rights of potential litigants against the state," "will increase
litigation against the state, the expense of which must be
born[e] by all our citizens," and that "the burden on our
state's courts, particularly the Supreme Court, will increase."
Veto Message of Governor Lucey to 1975 Assembly Bill 163, May
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28, 1976. The majority assuages the former Governor's concerns—
—it has no intention of shouldering that burden. Instead, the
majority claims opening the door to administrative review based
on "substantial costs" would be "absurd" and "would greatly
expand the world of decisions subject to review[.]"8 Expanding
the types of decisions subject to review, however, is precisely
what the legislature accomplished via its statutory revisions.
This court stymies the statute by closing the courthouse doors
to litigants seeking relief from financially consequential
effects of agency decisions.
¶68 Even under existing precedent imposing a finality
requirement, the Department's December 14 decision is
reviewable. In Waste Mgmt. of Wis., Inc. v. DNR, 128
Wis. 2d 59, 90, 381 N.W.2d 318 (1986), we concluded our
interpretation of Wis. Stat. § 227.15 in Pasch and Wis. Env't
Decade, Inc. v. Pub. Serv. Comm'n, 93 Wis. 2d 650, 287
N.W.2d 737 (1980), authorizes "judicial review of agency actions
which are final, in the sense that they determine the further
legal rights of the person seeking review." Although Waste
Mgmt. applies the former statutory language, under its reasoning
the December 14 letter qualifies as a reviewable decision even
under the stricter "legal rights" framework. In Waste Mgmt.,
the Department of Natural Resources modified Waste Management's
plan of operation at its Omega Hills site by imposing
requirements for ground water monitoring, treatment of toxic
liquids, and other aspects of the site. Waste Mgmt., 128
8 Id., ¶¶46–47.
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Wis. 2d at 83. "Notwithstanding the modifications, the approval
remained conditioned upon the fulfillment of the requirements."
Id. We held § 227.15 "affords Waste Management the right to
judicial review of the DNR's decisions to modify requirements
contained in the initial approval of the plan of operation for
Omega Hills." Id. at 80. We concluded the Department of
Natural Resources' modifications to Waste Management's operation
plan requirements determined Waste Management's "legal rights"
because "[u]nless Waste Management complies with the DNR's
requirements, it risks denial, suspension or revocation of its
license[.]" Id. at 90. Further, "[a]bsent judicial
review . . . , Waste Management faces possible 'irreparable
injury' to its interest in its investment, in that it must incur
the full costs of compliance regardless of whether the
requirements are properly imposed under the [statutory]
standards[.]" Id.
¶69 The December 14 determination that the permitting
approach "is not approvable" is subject to judicial review under
Pasch, Wis. Env't Decade, and Waste Mgmt. because (1) it is a
"consummation of the decisionmaking process"9 with respect to
whether CLCM can pursue the proposed permitting approach,
forcing CLCM onto a different permitting path with higher costs,
increased delays, and greater burdens; (2) it "determine[s]
[CLCM's] 'legal rights' because '[u]nless [CLCM] complies with
the DNR's [alternative permitting process], it risks denial,
suspension, or revocation" of its legal ability to operate; and
9 Id., ¶50.
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(3) "[a]bsent judicial review," it will result in "irreparable
injury" in the form of imposing the full and unrecoverable costs
of complying with the permitting process "regardless of whether
the requirements are properly imposed" or the alternative
process should have been approved. See Waste Mgmt., 128
Wis. 2d at 90.
B. The December 14 Decision "Adversely Affect[s]" CLCM's
"Substantial Interests"
¶70 The December 14 decision "adversely affect[s]" CLCM's
"substantial interests," within the meaning of Wis. Stat.
§ 227.52. As CLCM explained in its petition for judicial
review, in the December 14 letter the Department "rescinded its
proposal to accept the location-wide cap on VOC emissions,
discussed at the November 12th meeting, and requested CLCM
provide information required for the [D]epartment to issue a
major source permit covering the location." CLCM asserted the
"December Determinations represent the culmination of the
agency's decision with respect to the applicability of the PSD
standards and permitting requirements to the CLCM Location, and
directly impacts CLCM's rights going forward with respect to
which permitting and enforcement regimes the CLCM Location is
subject." CLCM challenged the Department's determination that
it "lacks authority under the facts of this case to issue a
minor source permit to CLCM restricting emissions to less than
40 [TPY] of VOC emissions."
¶71 Multiple statements in the December 14 letter indicate
the Department did not merely reiterate a previous determination
or leave all decisions unresolved. First, the letter itself
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indicates the decision was in response to a meeting held on
November 12, 2018——well after the June 26 letter. Second, the
Department explained that "[u]pon further consideration," it
"determined" the approach (1) "is not approvable," so (2) it
"cannot issue a construction permit" for the equipment, and (3)
the scrubber-controlled wash processes "therefore require BACT
or BACT-equivalent controls." The language of the December 14
letter distinguishes it from the June 26 letter; unlike the
Department's ongoing consideration of the issue in June, its
determination in December forced CLCM to proceed with a more
burdensome permitting process. CLCM could not pursue its chosen
course of business without complying with this permitting
decision. Even if the Department were to reverse course at some
point in the future, CLCM will have incurred sunk costs,
unrecoverable from the Department or otherwise.
¶72 CLCM identified specific substantial interests
adversely affected by the December 14 letter, which it construed
as a "determination that [its] facility must comply with the PSD
permitting requirements of chapter NR 405, as opposed to the
more flexible and streamlined requirements that apply to
'natural minor' and 'synthetic minor' sources under ch. NR 406
and 407[.]" The determination in the December 14 letter that
BACT analyses are required under the more burdensome PSD
permitting requirements is a decision independent of the final
permit review on the merits; it is instead a threshold question
of whether CLCM must conduct the analyses in the first place.
CLCM noted this decision "substantially increases the costs and
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delay associated with permitting" because the required BACT
analyses under this permitting regime can take months and
involve "$50,000 to $100,000 or more" for a facility.
Additionally, the Department's review can cost up to $80,000 and
may take more than 18 months before it issues the permit. Once
a company has expended the funds required for permitting, these
cannot be recouped. The threat of incurring such costs renders
the order triggering them judicially reviewable. See Env't Def.
Fund, 439 F.2d at 592 ("A threat of economic injury has always
been regarded as sufficient . . . for the purpose of finding an
order final and reviewable."). The majority's evasive sidestep
around perceived line-drawing problems undermines the statutory
text and does not make CLCM's interests any less substantial.10
¶73 Even federal courts applying an express finality
requirement have determined decisions on PSD permitting
applicability are reviewable. Despite the majority's
acknowledgement that "federal courts follow a 'finality'
requirement"11——and its insistence that Wisconsin courts do not12—
—the majority reaches a conclusion even more restrictive than
under federal law.
¶74 In U.S. Army Corps of Engineers v. Hawkes Co., Inc.,
the United States Supreme Court concluded an approved
jurisdictional determination regarding the discharge of
pollutants into "the waters of the United States" was reviewable
10 Id., ¶46.
11 Id., ¶49 n.16.
12 Id., ¶37 n.14.
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because it "clearly 'mark[s] the consummation' of the [U.S.
Army] Corps' decisionmaking process on that question." 578 U.S.
590, 597 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 178
(1997)) (emphasis added). The Court reasoned the decision was
reviewable because "that final agency determination . . . warns
that if [respondents] discharge pollutants onto their property
without obtaining a permit from the Corps, they do so at the
risk of significant criminal and civil penalties." Id. at 600.
The Court emphasized that "the permitting process can be
arduous, expensive, and long." Id. at 601 (citing Rapanos v.
United States, 547 U.S. 715, 721 (2006) (plurality op.)). In
that case, the respondents "would have to submit numerous
assessments of various features of the property, which
respondents estimate would cost more than $100,000." Id. at
596.
¶75 In Puerto Rican Cement Co., Inc. v. U.S. Environmental
Protection Agency, 889 F.2d 292, 294–95 (1st Cir. 1989), the
First Circuit Court of Appeals determined a company's challenge
to a decision of the Environmental Protection Agency (EPA)
requiring the company to obtain a special kind of EPA approval
was ripe for judicial review, notwithstanding the availability
of a review process at the agency level. The court reasoned
that "to withhold review would work considerable hardship on the
Company, forcing it either to abandon its building plans, to
compromise them by agreeing to emissions limitations, or to
engage in a long, costly PSD review process." Id. at 295.
Based on those immediate consequences of the EPA’s decision, the
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court rejected the idea that further proceedings before the EPA
rendered judicial review premature:
[T]he applicability of PSD review . . . is plainly
separable from, and therefore collateral to, all the
matters that the agency would consider in a PSD review
itself. The collateral nature of the issue diminishes
the likelihood that further agency proceedings will
make it unnecessary for a court to decide the issue[.]
Id. Similarly, in Hawaiian Electric Co., Inc. v. U.S.
Environmental Protection Agency, 723 F.2d 1440, 1442 (9th Cir.
1984), the Ninth Circuit determined "the application of the
major modification definition is an interim step in the PSD
permitting process" subject to judicial review because "it has
immediate legal consequences, i.e., the requirement of PSD
review." Specifically, the court recognized the company had "an
affirmative obligation imposed upon it" and "must take
additional affirmative actions in terms of supplying
information" to relieve itself of that agency-imposed
obligation. Id. at 1443. Additionally, the company was
"potentially subject to even more stringent affirmative
obligations through the BACT provisions" leaving judicial review
"the only feasible route available" to the company "to achieve
modification of the requirements presently imposed on it." Id.Accordingly, the court concluded such "intermediate actions are
reviewable" by the judiciary "in order to avoid forcing [the
company] to comply with a ruling it believes unlawful." Id. at
1444.
¶76 The majority's citation of Hawkes in support of its
conclusion that the December 14 letter "is not the consummation
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of the decisionmaking process but instead is just a step along
the way"13 omits an important qualifier. Under a proper
application of Hawkes, the Department's determination is the
"'consummation' of . . . [the] decisionmaking process on that
question" of which permitting approach applies. Hawkes, 578
U.S. at 597 (emphasis added). Contrary to the majority's
characterization of this case, CLCM does not challenge "a step
along the way" of a permitting process, but rather a threshold
applicability decision. "[O]n that question" of whether CLCM
can pursue the permitting approach discussed at the November 12,
2018 meeting, the Department determined the approach "is not
approvable." As a result, the Department informed CLCM it would
need to provide BACT analyses for that process to legally engage
in CLCM's chosen course of business; the costs and delays
associated with those analyses "adversely affect" CLCM's
"substantial interests." As Puerto Rican Cement, Hawaiian
Electric, and Hawkes all illustrate, the threshold decision
concerning permitting applicability is distinct from a decision
concerning the merits of the permit application; it is a fork in
the road preceding any "step along the way." Additionally, that
"an earlier judicial review might avoid the expense and
inconvenience of further administrative proceedings" is distinct
from a collateral decision imposing time-consuming hurdles,
costly construction modifications, and substantial permitting
costs. See Sierra Club, 304 Wis. 2d 614, ¶16.
13 Id., ¶50.
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¶77 This case illustrates the risk of allowing
administrative goal-post shifting to thwart judicial review.
The letters at issue are no paragons of clarity; this case
revolves as much around what constitutes the decision as it does
whether the decision is reviewable under Wis. Stat. § 227.52.
The Department argues the June 26 letter was the final decision
that CLCM should have challenged, but this argument ignores the
subsequent meetings and letters leaving open the possibility of
a PSD-avoidance limit, as well as the notice and appeal
referencing only the "construction waiver decision." CLCM
argues the December letter contains a reviewable determination.
The majority points to the December 14 letter's request for
additional information on how CLCM "proposes to demonstrate
compliance with its proposed VOC cap,"14 but in doing so reduces
the letter to a notice "indicating that CLCM simply must comply
with the process to get a permit[.]"15 To the extent this
request for more information contradicts its decision on the
scrubber-controlled wash processes, the Department shifts the
goal post and injects administrative uncertainty into the
analysis, making judicial review illusive if not altogether
unattainable. The broad language of Wis. Stat. § 227.52 does
not permit this.
¶78 The majority's erroneous application of the statute
governing judicial review of agency decisions would be puzzling
but for the majority's transparent revelation of the results-
14 Id., ¶43.
15 Id., ¶44.
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oriented motivations underlying its opinion: the avoidance of
what the majority deems to be an "absurd" or "unreasonable
result."16 The majority misapplies the absurd or unreasonable
results canon of statutory construction, for at least the second
time this term. "It is a misuse of the canon to invoke it as a
tool for discarding the plain meaning of an unambiguous statute
in favor of an interpretation" the court prefers. Brown County
v. Brown Cnty. Taxpayers Ass'n, 2022 WI 13, ¶84, 400
Wis. 2d 781, 971 N.W.2d 491 (Rebecca Grassl Bradley, J.,
dissenting.).
¶79 Although the absurd or unreasonable results canon
applies only rarely and in rather narrow circumstances, many
courts cannot resist the temptation to invoke it to justify a
preferred outcome. "The absurdity doctrine applies only to
textual errors that may be fixed 'by changing or supplying a
particular word or phrase whose inclusion or omission was
obviously a technical or ministerial error.'" Schwab v. Schwab,
2021 WI 67, ¶44 n.1, 397 Wis. 2d 820, 961 N.W.2d 56 (Rebecca
Grassl Bradley, J., dissenting) (quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 238
(2012)); see also State ex rel. Associated Indem. Corp. v.
Mortensen, 224 Wis. 398, 272 N.W. 457, 458 (1937) (the absurdity
canon "does not . . . justify a court in amending the statute or
giving it a meaning to which its language is not susceptible
merely to avoid what the court believes are inequitable or
unwise results"). "Just because a court dislikes the outcome
16 Id., ¶47.
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does not mean it is absurd." Schwab, 397 Wis. 2d 820, ¶44 n.1
(Rebecca Grassl Bradley, J., dissenting) (citing Mellen Lumber
Co. v. Indus. Comm'n of Wisconsin, 154 Wis. 114, 142 N.W. 187,
189 (1913) ("The statute in question may be inequitable, but
this does not make it absurd.")). Misapplication of the canon
disturbs the constitutional allocation of power among the
branches of government. "If courts ignored the law every time
they deem a result unreasonable, the rule of law would be
supplanted by the rule of judges." Id.¶80 Setting aside the impropriety of allowing judicial
policy goals to override a statute, the majority's attempt to
circumvent an increased burden on the judicial system will
ironically produce the opposite effect. Those subject to
adverse agency determinations will rush to the courts upon
receipt of any communication that could conceivably be construed
as a decision, lest the agency and court later deny review of a
challenge deemed untimely. The majority's decision in this case
will leave regulated entities and individuals uncertain of
whether courts will dismiss early challenges as premature or
reject later suits as tardy.
III. CONCLUSION
¶81 Recognizing the power wielded by administrative
agencies over the people and entities they regulate, the
legislature in 1976 expanded judicial review to include
administrative decisions which "adversely affect the substantial
interests of any person[.]" Wis. Stat. § 227.52. Flouting this
legislative directive, Wisconsin courts continue to keep the
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courthouse doors shut to regulated entities and individuals
alike. The December 14 decision by the Department foreclosing a
particular permitting process "adversely affect[s]" CLCM's
"substantial interests" because it subjects CLCM to a more
costly and time-consuming permitting process, collateral to a
merits determination on the permit application itself. Federal
courts recognize the impact on a party's "substantial interests"
of such a threshold permitting applicability determination, even
in the face of an express finality requirement omitted from our
judicial review statute.
¶82 Dismissing the impact of the Department's decision on
CLCM as "just a step along the way" of the permitting process,
the majority misguidedly ignores the adverse effects CLCM will
irreparably suffer as a result, and for which Wisconsin law
affords CLCM judicial review before the damage is done. The
majority misinterprets Wis. Stat. § 227.52 for the express
purpose of sparing the courts the burden of ensuring
administrative agencies follow the law. In doing so, the
majority "leaves Americans at the mercy" of administrative
agencies, which have been endowed with "a nearly freestanding
coercive power" making the agencies "rulers of a sort unfamiliar
in a republic, and the people must jump at their commands."
Philip Hamburger, Is Administrative Law Unlawful? 335 (2014).
"[T]he judiciary risks the liberty of all citizens if it
abdicates its constitutional responsibility to check executive
interpretations of the law." Operton v. LIRC, 2017 WI 46, ¶80,
375 Wis. 2d 1, 894 N.W.2d 426 (Rebecca Grassl Bradley, J.,
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concurring). Because the majority refuses to serve as a check
on the exercise of coercive administrative agency power in this
case, I dissent.
¶83 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
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