P.O. Box 7857
Madison, WI 53707-7857
www.doj.state.wi.us
BRAD D. SCHIMEL
ATTORNEY GENERAL
NEWS RELEASE
December 29, 2015
Contact: Anne E. Schwartz 608-266-6686
DOJ Office of Solicitor General Announces Work on Major Cases
Lawsuits in EPA Clean Power Plan, Waters of the U.S.; Voter ID; FoodShare program
Wisconsin Department of Justice Solicitor General Misha Tseytlin (sate’ lin) and his team have
begun work on major cases of concern to Wisconsin residents – lawsuits involving Voter ID; the
EPA and its “Clean Power Plan” and “Waters of the US,” and reforms to the state’s FoodShare
program.
“I am extremely pleased with the work of our Solicitor General’s office on the many high-profile
pieces of legislation and executive orders that are being signed into law and challenged in the
courts,” said Attorney General Brad Schimel. “Solicitor General Tseytlin and his team are
protecting Wisconsin’s families and defending their livelihoods while the federal government is
increasingly encroaching on our state’s sovereignty and negatively impacting our economy.”
Summary of State of West Virginia et al v. United States Environmental Protection Agency
 Two lawsuits challenging different parts of the Obama administration’s so-called Clean
Power Plan have been brought by 25 states and state agencies, including the State of
Wisconsin.
 The states are seeking to invalidate the rule, which effectively allows EPA to set state
energy policy by manipulating the electricity market and controlling the electric grid, a
role previously reserved for state regulators.
 The rule is an illegal expansion of EPA's authority, beyond what is permitted by the
Clean Air Act. The EPA is attempting to set energy policy for the states
 As one of the top manufacturing states in the country, Wisconsin has much to lose if the
Obama administration succeeds in its plan to destroy the viability of clean-coal electric
generation. Manufacturing jobs in our state depends upon affordable and reliable electric
power.
 The EPA rule gives Wisconsin no credit for the $11 billion already invested to reduce
carbon dioxide emissions since 2000. Wisconsin utilities are regulated by the Public
Service Commission, which incentivizes them to improve and maintain fleets that are
more efficient and produce lower emissions.
 As a result, over the past two decades, our utilities have closed many older coal-burning
plants and have replaced them with some of the newest, most efficient and
environmentally responsible coal-fired plants in the nation.
Summary of Challenge to Waters of the U.S.
 A federal appeals court in September issued an order temporarily stopping the
Environmental Protection Agency's rule expanding the agency's jurisdiction over
waterways from going into effect. Attorney General Schimel, on behalf of the State of
Wisconsin, previously joined the lawsuit seeking the stay.
 Under the federal Clean Water Act, Congress gave the EPA and Army Corps of
Engineers regulatory authority over “navigable waters." However, under this new rule,
the EPA and Army Corps of Engineers greatly expanded the definition of waterways
falling under federal jurisdiction to cover many types of waters traditionally under state
authority.
 Several states brought suit against the EPA and Army Corps of Engineers in a number of
courts, claiming that this expansion of federal authority over waterways supplants the
states’ constitutional right to govern their own waters. The Sixth Circuit Court of Appeals
in Ohio ruled that states challenging the rule "have demonstrated a substantial possibility
of success on the merits of their claims."
 This is an important victory for property owners, and especially for Wisconsin's
agricultural industry. Wisconsin already has strong clean water regulations, and the rule
was unnecessary. It is yet another example of the EPA exceeding its constitutional
authority.
Summary of Frank v. Walker
 In September 2014, the Court of Appeals for the Seventh Circuit ruled that Wisconsin’s
voter-identification law was neither unconstitutional nor a violation of the Voting Rights
Act.
 After this decision, the plaintiffs tried to continue the case in federal district court in
Milwaukee, and sought to expand the list of acceptable identification cards. In October
2015, United States District Judge Lynn Adelman rejected these claims, however, and
refused to adjust Wisconsin’s voter-identification law.
 The plaintiffs are again appealing to the Seventh Circuit. This time the plaintiffs are
asking the appeals court to allow further challenges to the law, including claims that
certain individuals may have difficulty in obtaining identification cards, and claims that it
is unreasonable for Wisconsin not to accept veteran-identification cards as proof of
identity.
 The case is currently being briefed by the parties, and oral arguments will likely be heard
in the spring 2016.
Summary of State of Wisconsin v Vilsack
 FoodShare is the Wisconsin version of the federal food-stamp program.
 FoodShare is administered by the State and local governments, but paid for by the
USDA.
 The USDA sets conditions of eligibility and other requirements, which are imposed on
the states.
 The biennial budget bill (2015 Wisconsin Act 55 signed by Governor Scott Walker)
includes a new law requiring DHS to screen and, if indicated, test and treat certain
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individuals for controlled substances who receive FoodShare in Wisconsin as a condition
of eligibility.
Not all FoodShare recipients are to be tested – only able-bodied adults without
dependents who meet the FoodShare work requirement through participation in the
FoodShare Employment and Training Program (FSET). These individuals account for
about a quarter of all FoodShare recipients.
While the Wisconsin Legislature was considering this legislation, the USDA sent an
email to DHS indicating that drug testing was not permitted in the FoodShare program.
It is Wisconsin’s position that FoodShare recipients may be drug tested as a condition of
eligibility. Wisconsin bases its position on a 1996 federal law that provides as follows:
o “Notwithstanding any other provision of law, States shall not be prohibited by the
Federal Government from testing welfare recipients for use of controlled
substances nor from sanctioning welfare recipients who test positive for use of
controlled substances.”
It is Wisconsin’s position that FoodShare recipients are “welfare recipients” and therefore
may be tested and sanctioned for the use of controlled substances.
Because Wisconsin and the Obama administration disagree about the meaning of federal
law, Wisconsin is asking the federal court to declare that Wisconsin’s position is correct,
and to issue an injunction preventing the federal government from applying their
standards in an unlawful way
Earlier this year the legislature and Governor authorized the Department of Justice to create a
new Solicitor General office. Tseytlin’s team includes Assistant Attorneys General Dan
Lennington and Luke Berg as the Deputy Solicitors General. The office began its work in
early December.
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