Brian Dake

The Wisconsin Legislature’s Republican-controlled budget committee can’t legally block conservation projects initiated by Democratic Governor Tony Evers’ administration, the state Supreme Court ruled July 5.

The court ruled 6-1 that provisions that require the Joint Finance Committee to unilaterally block projects and land acquisitions funded with money from the Knowles-Nelson Stewardship Program violate the separation of powers between the legislative and executive branches.

The Legislature gave the executive branch the power to distribute stewardship money when it established the program, Justice Rebecca Bradley wrote in the majority opinion. Once that power was conferred, lawmakers lacked authority to reject decisions on how to spend the money short of rewriting spending laws, she wrote.

The Legislature created the stewardship program in 1989. The state Department of Natural Resources uses money from the program to fund grants to local governments and nongovernmental organizations for environmental projects. The gubernatorial cabinet agency also uses money from the program to acquire land for conservation and public use. The Legislature has currently authorized the agency to spend up to $33.2 million in each fiscal year through 2025-26 for land acquisition, according to court documents.

Republicans have long criticized the program, saying it prevents land from being developed and takes parcels off local tax rolls. The finance committee in April 2023 blocked the DNR’s plan to spend $15.5 million from the program to acquire a conservation easement on 56,000 acres of forest, which would have been the largest land conservation effort in Wisconsin history. Evers ended up going around the committee in January by securing federal money for the purchase.

The Governor sued in October, arguing that legislative committees controlled by a handful of Republicans have overstepped their constitutional authority.

Yesterday, the Occupational Safety and Health Administration (OSHA) released a proposed rule with the goal of protecting millions of workers from the significant health risks of extreme heat.

The proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Among other things, the plan would require employers to evaluate heat risks and — when heat increases risks to workers — implement requirements for drinking water, rest breaks and control of indoor heat. It would also require a plan to protect new or returning workers unaccustomed to working in high heat conditions.

Employers would also be required to provide training, have procedures to respond if a worker is experiencing signs and symptoms of a heat-related illness, and take immediate action to help a worker experiencing signs and symptoms of a heat emergency.

In the interim, OSHA continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations. Record-breaking temperatures across the nation have increased the risks people face on-the-job, especially in summer months.

The agency continues to conduct heat-related inspections under its National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, launched in 2022. The program inspects workplaces with the highest exposures to heat-related hazards proactively to prevent workers from suffering injury, illness or death needlessly. Since the launch, OSHA has conducted more than 5,000 federal heat-related inspections.

In addition, the agency is prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. These workers face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, and are at high risk of hazardous heat exposure.

Last Friday, the United States Supreme Court issued a decision in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. The Court overruled its 1984 decision in Chevron, U.S.A. Inc. v. Natural Resources Defense Council Inc., which held that courts should defer to federal agencies to interpret ambiguities and gaps in the laws that the agencies implement (known as Chevron deference).

In its opinion, the Supreme Court held that the Administrative Procedure Act requires courts to exercise their independent judgment in interpreting the law, and consequently, “courts may not defer to an agency interpretation of the law simply because the statute is ambiguous.” However, the Supreme Court noted that the holdings of prior cases that relied on Chevron deference remain lawful and may not be overturned solely because they relied on Chevron.

Chevron deference has had a meaningful influence on the interpretation and enforcement of employment laws. Federal employment agencies, including the United States Equal Employment Opportunity Commission, the Occupational Health and Safety Administration, the United States Department of Labor (DOL) and the National Labor Relations Board, have relied on Chevron deference in issuing and defending agency interpretations.

Considering the Supreme Court’s ruling, federal agencies will not be able to rely on Chevron deference in existing litigation, including lawsuits that have been filed to challenge the DOL’s independent contractor and overtime rules, and may be subject to additional legal challenges regarding existing rules. Federal agencies may also issue fewer regulations and take more moderate positions in the regulations they issue, and they may face greater difficulty in addressing policy issues.

The U.S. Department of Labor’s (DOL) new rule increasing the salary level for determining overtime pay requirements for certain salaried employees goes into effect on July 1.

Beginning July 1, workers categorized as executive, administrative or professional employees earning less than $43,888 annually will be eligible for overtime pay. Additionally, the salary level will increase to $58,656 on Jan. 1, 2025, marking a nearly 65% increase from the current salary threshold of $35,568, and beginning July 1, 2027, salary levels will update every three years using up-to-date wage data.

Under the Fair Labor Standards Act, salaried workers classified as executive, administrative, professional, outside sales and computer employees are exempt from overtime pay requirements if a worker earns at or above a defined salary level called the “standard salary.” Under the final rule, salaried workers earning less than the finalized standard salary levels per year will be eligible to receive the standard overtime rate for hours worked over 40 in a workweek.

The U.S. Supreme Court on Thursday temporarily blocked the Environmental Protection Agency’s “Good Neighbor Plan.” By a 5 to 4 vote, the court ruled that the emissions-reductions standards set by the plan were likely to cause “irreparable harm” to almost half the states, including Wisconsin, unless the court halted the rule pending further review by the U.S. Court of Appeals for the District of Columbia.

The EPA’s Good Neighbor Plan aimed to ensure compliance with the 2015 Ozone National Ambient Air Quality Standards law. To carry out the law’s mandate, the EPA required “upwind” states to reduce air pollution affecting “downwind” states. Under the Good Neighbor rule, states are first given the chance to create a plan that complies with agency’s ozone guidelines. If a state fails to submit an adequate plan, the EPA then designs a compliance plan for the state. In February 2023, the EPA determined that 23 states had not provided sufficient plans and the agency then decided to implement its own emissions-control program for those states.

Ohio, plus several other states, large industrial companies, and trade associations, challenged the EPA plan in court. They contended that the agency’s “dictatorial approach” failed to adequately consider the legal and practical implications of substituting its own plan for the state plans. The opponents also argued that the plan’s implementation would cause significant economic and operational harm, particularly by forcing states to undertake costly modifications to their power plants while judicial review is pending in the U.S. Court of Appeals for the District of Columbia.

On Thursday, the Supreme Court agreed with the states.

Public Service Commission Chair Summer Strand says legislation that recently cleared the U.S. Senate will accelerate development of new nuclear technologies such as small modular reactors.

Speaking last week during a WisPolitics luncheon in Madison, Strand said “there is a lot of really exciting innovation, research and development happening” within the nuclear technology space.  If I had it my way, it would be happening faster and be more readily available,” she said Thursday, noting European countries are already making progress on small modular reactors.

These nuclear fission reactors are much smaller and easier to construct than traditional nuclear power plants. Their generating capacity is about one-third the size of these installations, according to the International Atomic Energy Agency, and they can be deployed for various uses including power generation and industrial applications.

La Crosse’s Dairyland Power Cooperative in 2022 announced it was partnering with Oregon-based NuScale Power to explore the potential deployment of small modular reactor technology in the co-op’s energy mix.

The U.S. Senate last week passed legislation on a 88-2 vote that includes the ADVANCE Act, which stands for Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy. The bill previously passed the U.S. House of Representatives in May and now goes to President Joe Biden for approval.

It overhauls aspects of the approval process for new nuclear technologies, according to an overview from the American Nuclear Society.

Under the bill, the federal Nuclear Regulatory Commission would be directed to enhance preparedness and coordination to license advanced nuclear fuel, develop strategies and guidance for licensing and regulating “microreactors” and report to Congress on new nuclear energy projects, report on licensing and overseeing nuclear facilities at brownfield sites and more.

Strand noted the bipartisan bill has been worked on in Congress for more than a year, and will help direct additional funding to nuclear tech development.

Traditional nuclear fission plays a role in the state’s energy mix, with two reactors at the Point Beach plant supplying about 15% of the state’s annual net generation since 2013, when the Kewaunee Nuclear Power Plant shut down. Before then, those two plants accounted for about one-fifth of the state’s electricity generation, according to the U.S. Energy Information Administration.

A federal judge in Texas on Monday seemed likely to stop a Biden administration rule that would extend mandatory overtime pay to 4 million U.S. workers from taking effect, but was unsure whether he could block it nationwide or only in the Republican-led state.

U.S. District Judge Sean Jordan in Sherman, Texas, suggested during a hearing that the U.S. Department of Labor had flouted federal wage law by basing eligibility for overtime pay on salaried workers’ wages rather than their job duties.

The rule will require employers to pay overtime premiums to salaried workers who earn less than $1,128 per week, or about $58,600 per year, when they work more than 40 hours in a week. The current threshold, set in 2019, is about $35,500.

Federal law exempts workers with “executive, administrative, and professional” duties from receiving overtime pay, and the Labor Department has for decades used salary as one factor in deciding when that applies.

During Monday’s nearly 90-minute hearing, Judge Jordan suggested that the new rule raises the threshold so significantly that it renders workers’ duties irrelevant even though they are the primary focus of the law.

The Judge seemed less certain about whether he should block the rule nationwide or only bar the Labor Department from applying it to state employees in Texas, asking both sides for input on the issue. Jordan is also presiding over a challenge to the rule by business groups, and a small marketing firm is suing over the regulation in a different federal court in Texas.

Garrett Greene, a lawyer for Texas, urged Jordan to stop the rule from taking effect anywhere, saying a federal law that regulates agency rulemaking gives courts the power to do so.

Homes in Wisconsin are more unaffordable than ever, according to this month’s Wisconsin Realtors Association report. However, the report indicates home sales and prices rose last month compared to May 2023.

“This is a tough environment for buyers given the high mortgage rates and limited supply of available homes on the market,” WRA president/CEO Tom Larson said in a news release. “We have tracked Wisconsin’s affordability level since 2009, and unfortunately affordability hit its all-time low point in May. The good news is that supply has been improving since late last year, which has moderated the rate of price appreciation. Hopefully, mortgage rates also will moderate and help improve our affordability during the summer sales period.”

According to the report, May 2024 home sales were up 11% over the previous year. The median price of a home statewide was $315,500, up 6.9% over the past 12 months.

Inventories improved, with new listings up 4.7% compared to May 2023, and total listings up 5.4%.

May begins the traditional busiest time of year for home sales, with about 43% of closings taking place between May and August in a typical year.

In a long-awaited ruling, the United States Supreme Court affirmed the constitutionality of a mandatory repatriation tax introduced by the Tax Cuts and Jobs Act (TCJA).

In upholding the tax, Justice Brett Kavanaugh, writing for the majority stated, “The MRT — which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity’s American shareholders, and then taxes the American shareholders on their portions of that income — does not exceed Congress’s constitutional authority.”

The 7-2 decision, issued June 20, was expected to have implications for the taxation of wealth in the U.S., not just for U.S. taxpayers with substantial ownership in certain foreign corporations. Justice Amy Coney Barrett wrote a concurring opinion, joined by Justice Samuel Alito. Justices Clarence Thomas and Neil Gorsuch dissented.

As Kiplinger reported, the case, Moore v. United States, centered on whether U.S. taxpayers with specified foreign holdings could be subject to a one-time tax on those investments. The plaintiffs, Charles and Kathleen Moore, owned a stake in an agricultural equipment company in India.

Despite not receiving dividends or income from their investment over the years, the Moore’s paid about $15,000 in taxes on earnings attributed to them as shareholders due to the mandatory repatriation tax (MRT).

• The couple later argued that the MRT was unconstitutional, contending that income must be realized to be taxable under the 16th Amendment, which grants Congress the power to impose a federal income tax.
• Their lawsuit challenged the TCJA’s provision that levied this one-time tax on U.S. taxpayers with significant ownership in certain foreign corporations.

The Supreme Court emphasized that its holding is a narrow one. As the news analysis site, SCOTUS blog, reported, the holding is limited to taxes levied on shareholders of an entity on undistributed income realized by that entity. That income has to be attributed to the shareholders when the entity hasn’t been taxed on the income.

In finding in favor of the government, the Court affirmed the Ninth Circuit Court of Appeals, which highlighted that the MRT was designed to close loopholes that allowed shareholders to evade taxes on offshore earnings. By upholding the tax, the Supreme Court essentially reinforced the government’s ability to tax foreign-held profits — at least in the circumstances described in this case.

As Kavanaugh wrote in the decision, “The Court’s longstanding precedents plainly establish that, when dealing with an entity’s undistributed income, Congress may either tax the entity or tax its shareholders or partners. Whichever method Congress chooses, this Court has held that the tax remains a tax on income.”

The Wisconsin Supreme Court will hear a challenge to Democratic Gov. Tony Evers’ partial veto that locked in a school funding increase for the next 400 years, the justices announced Monday.

The Wisconsin Manufacturers & Commerce Litigation Center filed a lawsuit in April arguing the governor exceeded his authority. The group asked the high court to strike down the veto without waiting for the case to go through lower courts.

The court issued an order Monday afternoon saying it would take the case. The justices didn’t elaborate beyond setting a briefing schedule.

At issue is a partial veto Evers made in the state budget in July 2023 that increased revenue public schools can raise per student by $325 annually until 2425. Evers took language that originally applied the $325 increase for the 2023-24 and 2024-25 school years and vetoed the “20” and the hyphen to make the end date 2425, more than four centuries from now.

Wisconsin governors, both Republican and Democratic, have long used the broad partial veto power to reshape the state budget. It’s an act of gamesmanship between the governor and Legislature, as lawmakers try to craft bills in a way that are largely immune from creative vetoes. The lawsuit contends that Evers exceeded his veto authority and his action was unconstitutional.