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For a brief moment last week, Joanne Kloppenburg and David Prosser were legal allies.

Kloppenburg, an assistant state attorney general, argued a case before the state Supreme Court in November, defending the Department of Natural Resources against a lawsuit brought by several environmental groups. They argued the DNR, in 2005, shouldn’t have denied a request for a public hearing on a Green Bay paper mill’s water permit.

The case gets at the balance of power between state and federal officials in enforcing the federal Clean Water Act of 1977. Congress intended the law, the legal cornerstone upon which water pollution regulations in this state and other around the country are based, to be largely carried out by state agencies, such as Wisconsin’s DNR.

The Supreme Court, in a 5-2 decision issued last week with Justice Prosser in the majority and justices Shirley Abrahamson and Ann Walsh Bradley dissenting, sided with the DNR and Kloppenburg, who is running against Prosser for his seat on the court. The majority opinion concludes the environmental group that requested the public hearing, Midwest Environmental Advocates, wasn’t entitled to it because it was based on allegations that the DNR’s proposed water permit for the plant violated federal laws, not state ones.

The opinion says the state didn’t have to hold the hearing sought by the group, which argued that federal law required the DNR to study phosphorus emissions from the plant more closely and place more specific limits on them. “A conclusion otherwise would undermine the careful federal and state balance created by the Clean Water Act,” it says, explaining that recourse lies with the U.S. Environmental Protection Agency, not the DNR.

Chief Justice Abrahamson, who wrote the dissenting opinion, argued there is, in fact, no recourse because the EPA, when reviewing water permits issued by states, has discretion and often approves ones that don’t follow the exact requirements of the Clean Water Act, as it did with the Green Bay paper mill permit. In short, it’s not the role of the EPA to hold public hearings on such matters. The majority opinion, Abrahamson notes, leaves “no effective forum in which to express their concerns that terms in a state-issued permit do not comply with federal law.”

Abrahamson also argues that state law requires DNR permits to comply with the Clean Water Act – meaning the DNR is responsible for meeting its requirements and can be challenged in court (or in a public hearing) for failing to do so. “Congress intended the states to play the lead role in administering water pollution control laws,” she says.

In a statement, Midwest Environmental Advocates said the majority opinion “wrongly deferred to DNR’s own interpretation of its authority … (the decision) ultimately leaves citizens with no forum to challenge permits that fail to protect public health and the environment.”

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