955 N.W.2d 793
Wis.2021Background
- Applegate-Bader Farm operates ~11,000 acres, about 2,000 of which are under permanent federal Wetland Reserve Easements (WRE/ACEP) that remove land from agricultural use.
- In 2015 the Wisconsin Department of Revenue (DOR) adopted a revised administrative rule, Wis. Admin. Code § Tax 18.05(1)(d), changing which easement/enrolled lands qualify as "agricultural use" for tax (use‑value) assessment.
- Applegate sued, asserting among other claims that DOR violated the Wisconsin Environmental Policy Act (WEPA), Wis. Stat. § 1.11, by not preparing an Environmental Impact Statement (EIS), alleging foreseeable indirect environmental harms (wetland degradation, reduced enrollment in conservation programs).
- The circuit court granted summary judgment for DOR on the WEPA claim; the court of appeals affirmed, reading prior authority to limit review when alleged effects are indirect.
- The Wisconsin Supreme Court reversed: it held agencies must consider indirect environmental effects under WEPA, found Applegate’s allegations sufficient to be a bona fide WEPA challenge, and concluded DOR did not produce a reviewable record supporting its negative‑EIS decision; the Court remanded for further agency action and stayed enforcement of § Tax 18.05(1)(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agencies must consider indirect environmental effects when deciding to prepare an EIS under WEPA | Applegate: WEPA requires consideration of indirect effects (e.g., induced land‑use changes, wetland destruction); those alleged effects can trigger an EIS | DOR: Only direct effects matter for triggering WEPA review; Applegate alleges only indirect effects so no bona fide claim | Court: Agencies must consider both direct and indirect environmental effects; Applegate met the threshold for a bona fide WEPA claim |
| Whether DOR developed a reviewable record and reasonably concluded an EIS was unnecessary | Applegate: Rulemaking record contains no agency analysis, rationale, or preliminary investigation of environmental effects | DOR: The 800+ page rulemaking record and comments are sufficient; court may infer reasonableness | Court: Record lacks any agency discussion/memoranda showing it took a "hard look"; DOR failed to develop a reviewable record; negative‑EIS decision not supportable on record |
| Remedy and relief required if WEPA was violated | Applegate: Vacatur or remand for EIS; protect wetlands pending compliance | DOR: Affirm rule; no further relief | Court: Reverse court of appeals; remand to circuit court with instructions to remand to DOR to develop a reviewable record and determine whether an EIS is required; stay enforcement of § Tax 18.05(1)(d) pending compliance |
Key Cases Cited
- Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n, 79 Wis. 2d 409 (1977) (establishes two‑step review for agency negative‑EIS decisions and requirement of a reviewable record)
- Wisconsin's Env't Decade, Inc. v. DNR, 115 Wis. 2d 381 (1983) (discusses scope of WEPA and limits of socioeconomic effects alone to require an EIS)
- Clean Wisconsin v. Pub. Serv. Comm'n, 282 Wis. 2d 250 (2005) (explains EIS purpose to force agencies to take a hard look at environmental consequences)
- Larsen v. Munz Corp., 167 Wis. 2d 583 (1992) (agency rulemaking/record can suffice to show a reasoned negative‑EIS decision where an Environmental Assessment exists)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (federal standard on reviewability of agency determinations under NEPA)
- Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56 (1986) (remedy/remand principles where agency compliance with environmental review is insufficient)