Wisconsin REINS Act

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2017 Wisconsin Act 57, known as the Wisconsin Regulations from the Executive in Need of Scrutiny (REINS) Act, is a REINS-style state law signed by Governor Scott Walker (R) on August 9, 2017, that requires state legislative authorization of administrative rules that carry compliance and implementation costs of $10 million or more over a two-year period. The law was modeled on a proposed federal law with the same name.^[1][2][3]

According to an article by Godfrey & Kahn attorneys Jodi Jensen and Mike Wittenwyler, published by National Law Review on August 10, 2017, the Wisconsin version of the REINS Act includes the following provisions:^[2]

The Supreme Court of Wisconsin on April 13, 2018, agreed to hear a lawsuit called Koschkee v. Taylor alleging that the state superintendent was in violation of the REINS Act. The court on June 25, 2019, ruled that the state superintendent must follow the REINS Act and submit new rules to the governor before they can go into effect.^[5] Click here for more information.

Background

See also: REINS Act

The federal REINS Act, which the Wisconsin state version was modeled on, was initially designed by Tea Party activist Lloyd Rogers in 2009. Rogers contacted former U.S. Representative Geoff Davis (R-Ky.) to propose legislation requiring that "all rules, regulations, or mandates that require citizens, state or local government financial expenditures must first be approved by the U.S. Congress before they can become effective." The proposal was incorporated into the Republican Party's Pledge to America legislative agenda leading up to the 2010 election cycle and was later introduced as legislation. It has since been introduced in the 112th Congress (2011-2013) through the 118th Congress (2023-2025).^[6][7]

Legislative history

The REINS Act was introduced into both houses of the Wisconsin State Legislature in late January 2017 as Assembly Bill 42 and Senate Bill 15. The version introduced into the state senate became law, while the assembly version was tabled on June 14, 2017. After passing the state senate on May 2 and the state assembly on June 14, Senate Bill 15 was presented to Governor Scott Walker on August 3 and signed into law on August 9 as 2017 Wisconsin Act 57. The law was published the following day and took effect on September 1, 2017.^[8][9][1]

Below is an abbreviated timeline of the legislative history of 2017 Senate Bill 15:^[8][9]

• January 26, 2017: Introduced to the Wisconsin State Senate by Republican Senators Devin LeMahieu, Alberta Darling, Chris Kapenga, Frank Lasee, Howard Marklein, Steve Nass, Duey Stroebel, Tom Tiffany, and Leah Vukmir, read for the first time, and referred to the Committee on Government Operations, Technology, and Consumer Protection
• April 26, 2017: Amended and approved by the Committee on Government Operations, Technology, and Consumer Protection by a vote of 3-2
• April 28, 2017: Referred to and withdrawn from the Joint Committee on Finance by the Committee on Senate Organization
• May 2, 2017: Read a second time and amended; read for the third time and approved by the state senate by a vote of 19-14
• May 3, 2017: Read for the first time in the state assembly and referred to the Committee on Rules
• June 14, 2017: Read a second time in the assembly; read for the third time and approved by the state assembly by a vote of 62-34
• August 3, 2017: The bill was presented to the governor
• August 9, 2017: The bill was signed by the governor
• August 10, 2017: The law took effect

Provisions

The sections below contain a series of quotes explaining the provisions of 2017 Wisconsin Act 57. These quotes are excerpts from a memo prepared by Scott Grosz, principal attorney of the Wisconsin Legislative Council, a nonpartisan agency that provides support staff for the Wisconsin State Legislature. The memo was originally published on August 15, 2017, and revised on September 8, 2017.^[10]

Statement of scope and initial agency rule drafting

Act 57 required the Wisconsin Department of Administration (DOA) to determine whether an agency has the authority to issue a rule before the statement of the rule's scope is presented to the governor. Additionally, Act 57 created a comment period regarding the statement of scope before the statement's approval by the governor, agency head, or board with policy-making authority. Agencies cannot begin drafting a proposed rule until the statement of scope is approved. The following quote describes Act 57's ruling for initial agency rule drafting and scope:^[10]

“

With regard to statements of scope and initial agency rule drafting, Act 57 provides for the review of an agency’s scope statement by the Department of Administration (DOA), prior to presentation of the scope statement to the Governor for his or her approval. Under the Act, DOA must determine whether the agency has explicit authority to promulgate the rule. The Act also provides for the distribution of scope statements to the Co-Chairs of the Joint Committee for Review of Administrative Rules (JCRAR) upon publication of the statement with the Legislative Reference Bureau. The Act also creates a process for preliminary comment and hearing on a statement of scope. Under the Act, the comment period and hearing may be requested by a Co-Chair of JCRAR or held by the agency on its own initiative. Generally, under current law, an agency may not work on the drafting of a proposed rule until the scope statement is approved by the Governor and the agency head or board with policy-making authority. When applicable, the preliminary comment period and scope statement hearing would take place before approval of the scope statement by the agency head or board with policy-making authority.[10][4]

”

Economic impact analysis (EIA)

Under Act 57, agencies may not —with exemptions for the Department of Natural Resources— promulgate rules with more than $10 million in associated costs unless authorized to do so by legislation. Act 57 also allows co-chairs of JCRAR to contract an independent EIA of a proposed rule. The following quote describes Act 57's changes to regulations surrounding an agency's EIA during the rulemaking process:^[10]

“

The Act makes several changes relating to an agency’s preparation of an EIA as part of its rulemaking process. First, the Act directs an agency to determine whether a proposed rule has $10 million or more in implementation and compliance costs over a two-year period. Generally, upon such a finding, an agency may not promulgate a rule absent authorizing legislation or germane modification to the proposed rule to reduce costs below the $10 million threshold. However, the process for authorizing such rules does not apply to certain rules promulgated by the Department of Natural Resources, if those rules are no more stringent than required under the federal Clean Air Act. Additionally, prior to gubernatorial approval, the Act authorizes a Co-Chair of JCRAR to request and contract for the preparation of an independent EIA of a proposed rule, with the cost of the independent EIA paid by the Co-Chair’s house of the Legislature if the result varies by less than 15% from the agency’s EIA, and paid by the agency that is proposing the rule if the result varies by more than 15%, except that the Joint Finance Committee may determine the funding source for contracts with a maximum potential obligation in excess of $50,000. Before contracting for the preparation of an EIA, a request for an independent EIA by a Co-Chair of JCRAR must be approved by the Organization Committee of the Co-Chair’s house of the Legislature. During the JCRAR review period, the Act also authorizes JCRAR to request and contract for the preparation of an independent EIA of a proposed rule, with the cost of the independent EIA paid by the Legislature if the result varies by less than 15% from the agency’s EIA, and paid by the agency that is proposing the rule if the result varies by more than 15%, except that the Joint Finance Committee may determine the funding source for contracts with a maximum potential obligation in excess of $50,000. Before contracting for the preparation of an EIA, a request for an independent EIA by JCRAR must be approved by both the Committee on Senate Organization and the Committee on Assembly Organization.[10][4]

”

Indefinite objection by the Joint Committee for Review of Administrative Rules (JCRAR)

The following quote describes Act 57's indefinite objection, wherein a rule cannot be made if JCRAR chooses to object to it indefinitely:^[10]

“

The Act creates a new procedure that would, as an alternative to the temporary objection process under current law, allow JCRAR to indefinitely object to any proposed rule, for the same reasons a temporary objection may be made under current law. Under this provision, an agency would not be able to promulgate a rule following indefinite objection unless a bill authorizing such promulgation was enacted into law.[10][4]

”

Gubernatorial approval

Act 57 requires agencies to notify the co-chairs of JCRAR when they submit proposed rules for the governor's approval. The following quote describes Act 57's notice requirements for agencies' rule submission:^[10]

“

The Act 57 specifies that an agency must provide notice to the Co-Chairs of JCRAR when a proposed rule is submitted for gubernatorial approval.[10][4]

”

Emergency rules

While preliminary comment and hearing apply to emergency rules under Act 57, the limitations for authorizing high-cost rules do not. The following quote describes Act 57's exemptions in rule-making regulations for emergency rules:^[10]

“

The Act specifies that the process for preliminary comment and hearing on a statement of scope applies to the promulgation of an emergency rule, but that emergency rules are not subject to the limitations relating to authorization of high-cost rules, described above.[10][4]

”

The following timeline highlights key events in Koschkee v. Taylor, a case that challenged the application of the Wisconsin REINS Act to certain rules issued by the state Department of Public Instruction (DPI). At the time the lawsuit was filed in Novemebr 2017, Tony Evers was the Superintendent of Public Instruction (SPI), and the court case was called Koschkee v. Evers. Carolyn Stanford Taylor assumed office as the Wisconsin SPI in January 2019, and the case became Koschkee v. Taylor.

June 25, 2019: Wisconsin Supreme Court rules that DPI must have new rules approved by the governor

In a 4-2 decision, the Wisconsin Supreme Court ruled in favor of Kristi Koschkee and held that the Wisconsin Department of Instruction (DPI) and Superintendent of Public Instruction (SPI) must receive written approval from the governor before drafting or implementing new administrative rules. The court held that the Wisconsin Constitution allows the state REINS Act to apply to the DPI because the power to make rules is legislative and controlled by the legislature.^[5][11][5]

April 10, 2019: Wisconsin Supreme Court hears oral argument

The Wisconsin Supreme court heard oral argument in the case. At the time of the oral argument, Carolyn Stanford Taylor was now Wisconsin's SPI, and the case was subsequently renamed Koschkee v. Taylor.^[12][13][14]

June 27, 2018: Wisconsin Supreme Court rules Evers can choose counsel

The Wisconsin Supreme Court ruled on June 27, 2018 that then-Superintendent Evers and the Department of Public Instruction are allowed to choose their own representation and are not required to have representation from the Department of Justice. The court split 4-3 on the decision that Evers could choose his own lawyers but all agreed that Governor Scott Walker was not a necessary party to the case.^[15]

May 15, 2018: Wisconsin Supreme Court considers Evers' request for independent counsel

The Wisconsin Supreme Court held preliminary oral arguments in Koschkee v. Evers on May 15, 2018. The court considered whether or not then-Superintendent Evers can select his own legal representation in the case or must be represented by the state attorney general and DOJ. Governor Walker had previously ordered Attorney General Brad Schimel to represent Evers and DPI. Schimel disagrees with Evers' legal position in the case. According to the Milwaukee Journal Sentinel, during the oral arguments, "attorneys for Evers contended Schimel and his aides were violating ethics rules for lawyers because they were not pursuing the case in the way Evers wanted, were not conferring with him and did not honor his decision to fire them." State Solicitor General Misha Tseytlin, representing DOJ, argued that the attorney general has authority over legal decisions in cases assigned to him by the governor.^[16][17]

April 13, 2018: Wisconsin Supreme Court agrees to hear REINS Act case against Evers and DPI

The Wisconsin Supreme Court issued a decision on April 13, 2018, agreeing to consider Wisconsin Institute for Law and Liberty's (WILL) lawsuit against then-Superintendent Evers and DPI as an original action. In the decision, the court did not give its reasons for taking the case. The court also did not respond to Evers' request for independent representation. The decision to take the case was supported by a majority of the court, while Justices Ann Walsh Bradley and Shirley Abrahamson dissented, arguing that the issue presented was already addressed in Coyne v. Walker.^[18]

February 6, 2018: Dane County judge denies motion seeking a declaration that the Wisconsin REINS Act does not apply to the state superintendent

On February 6, 2018, Dane County Circuit Judge Richard Niess denied a motion filed in December 2017 in a dormant lawsuit between Governor Walker and then-Superintendent Evers. At the conclusion of that now-dormant suit, the Wisconsin Supreme Court upheld an injunction from a Dane County judge preventing the governor from applying to the state superintendent a 2011 law requiring state agencies to obtain gubernatorial permission when issuing regulations.^[19][20]

The motion, filed by a group of teachers in support of Evers’ position, asked Judge Niess to rule that the Wisconsin REINS Act is similar enough to the 2011 regulatory permission law and therefore cannot be applied to Evers. Judge Niess denied the motion, holding that interpreting the REINS Act is a matter for the state supreme court and that there is no reason to believe that the Walker administration plans to violate the original injunction against applying the 2011 law to DPI.^[19][20]

November 22, 2017: Governor Walker orders Wisconsin Department of Justice to represent Evers and DPI; Evers requests independent counsel

On November 22, 2017, Governor Scott Walker (R) ordered the Wisconsin Department of Justice to represent then-Superintendent Evers in the case. An email statement from the governor's office to Wisconsin Public Radio read in part: "Superintendent Evers is being sued in his official capacity as a state official, therefore, the attorney general has the authority to represent him and determine the arguments that are in the best interest of the state." DPI spokesman Tom McCarthy said the same day that his department plans to file a motion seeking independent representation on the grounds that the Walker administration and state Attorney General Brad Schimel (R) do not have the same interests or desired outcome in the case as the department.^[21][22]

Evers, who successfully ran for Wisconsin governor as a Democrat in 2018, issued a separate statement on November 22 through his campaign spokeswoman, saying, "They will stop at nothing. They are so scared that I will beat Scott Walker, they are willing to waste thousands of taxpayer dollars re-filing a frivolous lawsuit they've already lost." Johnny Koremenos, director of communications and public affairs for the state justice department, also released a statement that day, which read in part: "It is not unusual for a client agency to disagree with the position of DOJ and this case is no different, but that is not a conflict of interest. Wisconsin law unequivocally gives the Attorney General the power to represent any state official or department upon the request of the Governor."^[21][22]

November 20, 2017: Law firm sues the Wisconsin Department of Public Instruction and state superintendent, alleging REINS Act violations

On November 20, 2017, the Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit against Tony Evers, the then-Wisconsin superintendent of public instruction, alleging that Evers and the Wisconsin Department of Public Instruction (DPI) were in violation of the state's REINS Act. WILL’s lawsuit was filed as an original action with the Supreme Court of Wisconsin and asked the court to issue a declaratory judgment ordering Superintendent Evers to comply with the state REINS Act. WILL's suit was filed on behalf of two school board members and two public school teachers from Wisconsin school districts.^[23][24][25]

A press release from WILL, a nonprofit law firm and legal research organization, described the reasoning behind the lawsuit as follows:^[26]

“	Among other things, the REINS Act requires statements of scope for proposed rules to be submitted to the State Department of Administration for an analysis of whether the agency has authority to promulgate the proposed rule. ... But records obtained by WILL indicate that Evers and the DPI are violating this provision of the law by refusing to send scope statements to the Department of Administration. DPI is also not sending scope statements to the Governor for approval.[4]	”
—Wisconsin Institute for Law and Liberty, November 20, 2017[26]

Tom McCarthy, a spokesman for DPI, said in a statement issued the same day as the lawsuit filing that the legal issues raised by WILL were already decided by the Wisconsin Supreme Court in the 2016 case Coyne v. Walker. McCarthy argued that the state REINS Act does not apply to DPI, writing, "Justice Gableman's decision in Coyne is clear and the Legislature understood the case’s impact on the REINS Act after discussions with our department. The case has no merit, period." According to Wisconsin Public Radio, "the state Supreme Court ruled 4-3 in Coyne v. Walker that the state schools superintendent has the authority to write rules independently." The four-justice majority in Coyne delivered four separate opinions, and the case was decided the year before the state REINS Act was passed.^[23][24][26]

Noteworthy use of the Wisconsin REINS Act

The following sections identify a selection of noteworthy applications of the Wisconsin REINS Act since its enactment in 2017.

Wisconsin REINS Act leaves groundwater standards unaddressed

The Wisconsin Groundwater Coordinating Council (GCC) issued a report to the state legislature on August 31, arguing lawmakers should address 46 groundwater standards proposed by the state Department of Natural Resources (DNR) and the state Department of Human Services (DHS). The report is part of a continuing conflict between the state executive and legislative branches over enforcement and rulemaking authority.^[27]

State Sens. Howard Marklein (R) and Mark Born (R) argue the legislature tried to address groundwater pollution standards while limiting executive authority. They say Gov. Tony Evers (D) vetoed legislative solutions because his administration wants to use appropriations as "an unaccountable slush fund … to bring enforcement action against farmers and other innocent landowners."^[28]

Steve Elmore—the DNR drinking water and groundwater program director—argues the Wisconsin REINS Act (which requires legislative approval for rules costing more than $10 million) is causing unnecessary delays in executive groundwater contaminant standards. Elmore said the REINS Act has "been something that has limited our ability to set new groundwater standards, and so then the recommendations just keep piling up."^[29]

Wisconsin REINS Act halts environmental rulemaking (2024)

Wisconsin Governor Tony Evers (D) urged Republican legislators during his 2024 State of the State address on January 23, 2024, to authorize the Wisconsin Department of Natural Resources (DNR) to continue its rulemaking process to establish certain groundwater contamination standards, pursuant to the state legislature’s authority under the Wisconsin REINS Act.

The DNR finalized an economic impact analysis in December 2023 for a proposed rule to establish standards for per- and poly-fluoroalkyl substances (PFAS) contamination in groundwater and concluded that the cost to implement the standards would exceed $10 million over a two-year period. The Wisconsin REINS Act prohibits the DNR from proceeding with the rulemaking process until the state legislature authorizes the department to continue.

Evers also sent a letter to State Senators Robert Cowles (R) and Eric Wimberger (R) in December 2023 urging the state legislature to pass legislation allowing the DNR to continue the rulemaking process. The state legislature had not provided authorization to the DNR as of February 12, 2024.^[30]

Proposed environmental rules (2021)

The Wisconsin Department of Natural Resources (DNR) in 2021 dropped a rule that aimed to establish nitrate standards in soils deemed sensitive to groundwater pollution after its economic impact analysis indicated that it would exceed the $10 million threshold outlined in the state's REINS Act. In a report prepared for the DNR, University of Wisconsin-Madison researchers estimated the economic impact of the proposed standards to range between $22.5 million and $31 million annually.^[31][32]

Department of Public Instruction required to obtain gubernatorial approval of new rules (2019)

The Wisconsin Supreme Court on June 25, 2019, ruled 4-2 in Koschkee v. Taylor to affirm that the state’s Department of Public Instruction (DPI) must submit new rules to the governor for approval before they take effect.

The Wisconsin Institute for Law and Liberty (WILL) sued former Superintendent of Public Instruction Tony Evers (D) and the DPI in November 2017 for allegedly violating the state REINS Act by failing to submit statements of scope for proposed rules to the State Department of Administration for approval. Evers and DPI argued that the state superintendent is a constitutional office not subject to gubernatorial control under the REINS Act.

Koschkee v. Taylor affirmed that DPI exercises delegated legislative power when it promulgates rules and, therefore, its rulemaking activities are subject to control by the state legislature. By passing the REINS Act, the state legislature required DPI to obtain gubernatorial approval prior to promulgating new rules.

See the section of this article on Koschkee v. Taylor for more information.

See also

• REINS Act
• Florida REINS-style state law
• Indiana REINS-style state law
• Kansas REINS-style state law
• REINS-style state laws
• Rulemaking

External links

• Wisconsin REINS Act (full text)
• Kristi Koschkee v. Carolyn Stanford Taylor on WICourts.gov
• Search Google News for this topic

Footnotes