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Democratic and Republican lawmakers traded barbs Wednesday over how much freedom the Legislature’s Joint Finance Committee has to release funds already set aside in the state budget to address PFAS contamination across Wisconsin and the loss of two hospitals in the Chippewa Valley.
The GOP leaders of the budget committee have argued that they can’t spend $125 million in the state’s 2023-25 budget for contamination from PFAS “forever chemicals” because Gov. Tony Evers vetoed a separate bill that outlined a plan for spending the funds. The Wisconsin Department of Natural Resources (DNR) has submitted its own plans for spending the money, most recently in February.
A legal memo from the Wisconsin Legislative Council, the Legislature’s nonpartisan legal analysis bureau, requested by Senate Minority Leader Dianne Hesselbein (D-Middleton), said the finance committee has the authority under state law to transfer the PFAS money.
Similarly, the memo says, the committee has the authority to transfer $15 million that had been approved in legislation passed earlier this year after hospitals in Chippewa Falls and Eau Claire closed. The state Department of Health Services (DHS) has submitted a proposal for how that money should be spent.
On both points, the memo also includes disclaimers about the potential for lawsuits if the finance committee transfers the funds to the administration.
Hesselbein’s office released the memo Wednesday, declaring in a press release that it “confirms that, in fact, Republicans can release millions of funds at any time — Republican lawmakers are just choosing not to.”
Pouncing on cautionary statements in the memo, however, the Republican co-chairs of the finance committee responded with a press release calling Hesselbein’s release “dishonest” and “deceitful.” The statement from Sen. Howard Marklein (R-Spring Green) and Rep. Mark Born (R-Beaver Dam) said the Legislative Council memo “confirms what the committee has been saying all along: Releasing funding for programs the Governor vetoed is a legal risk.”
The memo states that if the committee approves spending the PFAS money, “doing so may be subject to a legal challenge” depending on the details of such a plan. “The degree of legal risk likely depends in part on the specific purposes for which DNR proposes to use the transferred funds in a given request,” it states.
In the legislation directing $15 million for Chippewa Valley health care, Evers vetoed language restricting the money to emergency room services.
The memo states a court might find that language in the law “‘for grants to support hospital services’ without any other directing language is insufficient legislative ‘authorization or direction’ given that the detailed limits on use of the funding passed by the Legislature were vetoed by the Governor.”
The Republicans’ release implied that the greatest legal threat was from Evers, who has sued the Legislature to challenge lawmakers’ actions that have blocked the executive branch on several fronts: “Considering how sue-happy Governor Evers is, this is not a risk we can take.”
The lawmakers’ joint statement did not explain why Evers would sue if the committee adopted his administration’s PFAS or health funding proposals. It did not identify any other potential plaintiff for such a lawsuit. The Legislative Council memo also did not identify potential plaintiffs in either case.
To be sure, Evers has raised the possibility of suing the lawmakers — for not releasing the money.
Legislative researchers identified 10 instances in the past decade in which the finance committee authorized spending on items that governors had modified with partial vetoes, including Evers and, before him, then-Gov. Scott Walker, Hesselbein’s office pointed out.
“The co-chairs are now saying that, you know, Gov. Evers would sue them. They’re just all over the place on this one,” Hesselbein told the Wisconsin Examiner. “They’ve done it in the past. They weren’t worried about it before. Why are they worried about it now?”
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