Brad Schimel was a one-term Wisconsin attorney general, serving from 2015 to 2019, before being voted out. In a recent YouTube post, attorney Tom Dawson, who headed the Environmental Protection Unit at the Wisconsin Department of Justice, described how he observed Brad Schimel unfairly favoring polluters when Schimel was attorney general. Dawson concluded that Schimel was unfit for the Wisconsin Supreme Court.
I had a similar experience with a water quality case when I was a state of Wisconsin administrative law judge conducting environmental hearings for the Division of Hearings and Appeals (DHA). I remember it very well because, for me personally as well as for the parties, it was the case from hell. Personally, because it was initially scheduled on the day that my late wife Rebecca passed. It was hell for the parties, too, because the case dragged on for eight years. I wonder if any of that extended litigation would have happened if Schimel hadn’t been attorney general or if he’d had more respect for the rule of law.
The case was by far the most egregious regulatory failure that I’d encountered in many years of hearing water law cases. A large dairy categorized as a concentrated animal feeding operation (CAFO) sought a permit to expand its operations. The local area had features that had severely impacted groundwater quality. Several expert witnesses testified that up to 50% of private wells in the township were contaminated and that as many as 30% of wells had tested positive for E. coli bacteria. No witness disputed those numbers. Mothers testified that they worried when their children bathed, lest they imbibe some of the filthy bath water.
I entered a decision on behalf of DHA on Oct. 29, 2014. It allowed the dairy to expand its operation, but it imposed two important new conditions. It required that the DNR put limits on the number of animal units, and it also required that the dairy conduct off-site groundwater monitoring to protect the water quality of nearby farms. By law, my decision was the final legal decision of the DNR unless appealed to a circuit court or the DNR secretary.
Ten months later and well after the time limits for appeal, in September 2015 the DNR secretary overturned my order and struck the two conditions protecting water quality. Why? Because of an attorney general opinion issued by Schimel and Assistant Attorney General Daniel Lennington on Aug. 18, 2015.
That attorney general's opinion argued that my decision conflicted with 2011 Act 21, in that it imposed conditions on the water quality permit without the DNR having explicit authority to do so. That argument, later rejected by the Wisconsin Supreme Court, had been available to the parties in my case at the time of their briefing of the legal issues informing my decision.
Further, issuance of that attorney general's opinion was highly unusual. It was requested by the then DNR Secretary Cathy Stepp, even though such a request directly conflicted with longstanding Department of Justice policy against issuing such opinions during litigation. DOJ policy was clear and longstanding: “An opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation since an opinion of the attorney general might affect such litigation.”
Indeed, it was the first time during my 24-year career as an administrative law judge that an attorney general's opinion directly addressed a reviewable issue in one of my Division of Hearings and Appeals decisions. It was especially odd because it was issued after the parties had had an opportunity to address the same issues in a four-day contested case that included extensive briefing. Further, Secretary Stepp had already denied an effort to overturn my decision by her own review.
After Schimel issued his opinion, Stepp later reversed herself and struck the two new permit conditions. That seemed to me at the time to be an end run around the contested case hearing process and its time limits for appeal. It still strikes me as a violation of the due process rights of the parties who had retained lawyers and experts at some expense to address the same issues. At a minimum, it displayed a lack of respect for the environmental hearing process.
In July 2021, the Wisconsin Supreme Court upheld my October 2014 DHA decision, finding that the DNR had clear authority to impose both permit conditions ordered in my original decision. Significantly, that decision came when the Wisconsin Supreme Court had a conservative majority. A permit containing those two new conditions was finally entered in 2022.
Does Brad Schimel respect the rule of law? My experience was that Attorney General Schimel demonstrated a profound lack of respect for the environmental hearing process. His late and highly unusual intrusion into the case on behalf of the CAFO needlessly extended the case from hell.
I will be voting for Susan Crawford for the Wisconsin Supreme Court.
Jeffrey D. Boldt was an administrative law judge for the Wisconsin Division of Hearings and Appeals from 1991 to 2016. He is also the author of two legal thrillers with environmental themes, "Blue Lake" (2022) and "Big Lake Troubles" (2024). More at: Jeffreydboldt.net.
