2015 WI 63



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP1407 C OMPLETE T ITLE : Wisconsin Realtors Association, Wisconsin

Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, Plaintiffs-Appellants-Petitioners, v. Public Service Commission of Wisconsin, Defendant-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 353 Wis. 2d 554, 846 N.W. 2d 34)

(Ct. App. 2014 – Unpublished)

O PINION F ILED : June 30, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : February 5, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Brown J UDGE : William M. Atkinson

J USTICES : C ONCURRED : D ISSENTED : ROGGENSACK, C.J., ZIEGLER, J. dissent. (Opinion

Filed.) N OT P ARTICIPATING :

A TTORNEYS : For the plaintiffs-appellants-petitioners, there we re briefs by John A. Kassner and von Briesen & Roper, S.C., Madison and oral argument by John Kassner

.

For the defendant-respondent, there was a brief by Cynthia E. Smith , Justin W. Chasco , and Public Service Commission of Wisconsin , and oral argument by Cynthia E. Smith

.2015 WI 63

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1407 (L.C. No. 2012CV1203)

STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr. and Ervin E. Selk, Plaintiffs-Appellants-Petitioners,

v. Public Service Commission of Wisconsin, Defendant-Respondent. 

## FILED JUN 30, 2015

Diane M. Fremgen Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed

.

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an unpublished decision of the court of appeals affirm ing a summary judgment of the Circuit Court for Brown County, Wil liam M. Atkinson, Judge, in favor of the defendant (the Pub lic Service Commission of Wisconsin) and against the plaintiffs (the Wisconsin Realtors Association, the Wisconsin Build ers Association, the Wisconsin Towns Association, John E. Morehouse,No. 2013AP1407

2 Sr., and Ervin E. Selk). 1 We refer to the plaintiffs collectively as the Wisconsin Realtors Association, or WRA. ¶2 The issue presented is whether Wis. Admin. Code ch. PSC 128, 2 titled "Wind Energy Systems" and sometimes referre d to herein as "the wind energy rules" or "the rules," i s invalid because it was promulgated by the Public Service Co mmission "without compliance with statutory rule-making proc edures." 3 ¶3 WRA asserts that in promulgating the wind energy rules, the Public Service Commission failed to comp ly with the procedural requirement set forth at Wis. Stat. § 22 7.115(2). Under Wis. Stat. § 227.115(2), if any rule proposed by an agency (including the Public Service Commission) "directly or substantially affects the development, construction , cost, or availability of housing in this state," then the De partment of Commerce shall prepare a report, referred to by the parties and herein as a "housing impact report," before that ru le is

1 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013 AP1407, unpublished slip op. (Wis. Ct. App. Mar. 25, 2014).

2 Wisconsin Admin. Code Ch. PSC 128 has not changed since it went into effect. All references to ch. PSC 128 ar e therefore to the current December 2012 version.

3 See Wis. Stat. § 227.40(4)(a) (2009-10) (providing that the court shall declare an administrative rule inva lid if it finds that (1) the rule violates constitutional pro visions; (2) the rule exceeds the statutory authority of the age ncy; or (3) the rule was promulgated without compliance with st atutory rulemaking procedures). All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.No. 2013AP1407

3 submitted to the Legislative Council staff. 4 WRA asserts that a housing impact report was required for Wis. Admin. Code ch. PSC 128 as a matter of law. ¶4 Thus, the more specific issue presented is wheth er under Wis. Stat. § 227.115(2), the Department of Co mmerce was required as a matter of law to prepare a housing im pact report before Wis. Admin. Code ch. PSC 128 was submitted t o the Legislative Council staff for review. To decide th is issue, the court must determine based only on the texts of the governing statutes and the wind energy rules themselves wheth er the rules directly or substantially affect the development, c onstruction, cost, or availability of housing in this state. ¶5 The circuit court granted summary judgment to th e Public Service Commission on its motion, concluding that Wis. Admin. Code ch. PSC 128 does not directly or substa ntially affect the development, construction, cost, or avai lability of housing in this state and thus that a housing impac t report was not required. ¶6 The court of appeals affirmed, stating: "We mus t presume PSC 128 was duly promulgated, and [WRA] has not cited any evidence to rebut that presumption." 5

4 The version of Wis. Stat. § 227.115(2) applicable in the instant case assigned the responsibility for prepar ing housing impact reports to the Department of Commerce. Resp onsibility for preparing housing impact reports is now in the Department of Administration. See Wis. Stat. § 227.115(1)(a) (20 11-12) (defining "[d]epartment" as "the department of admi nistration").No. 2013AP1407

4 ¶7 We conclude that WRA has not demonstrated that a housing impact report was required as a matter of l aw for Wis. Admin. Code ch. PSC 128. The texts of the governin g statutes and the wind energy rules do not demonstrate as a m atter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in t his state. ¶8 We further conclude that invalidating Wis. Admin . Code ch. PSC 128 under the circumstances presented in th e instant case would infringe on the role of the legislature, which we decline to do. ¶9 Accordingly, WRA's challenge to Wis. Admin. Code ch. PSC 128 fails. ¶10 Our analysis will proceed as follows. First, w e set forth the relevant facts and procedural history. W e then recite the applicable standard of review. Next, we examin e the statutory framework underlying this dispute. Final ly, we determine that WRA has not demonstrated that a hous ing impact report was required as a matter of law for Wis. Adm in. Code ch. PSC 128.

I ¶11 The relevant facts are not in dispute.

5 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013 AP1407, unpublished slip op., ¶23 (Wis. Ct. App. Mar. 25, 2 014).No. 2013AP1407

5 ¶12 The Public Service Commission is an independent regulatory agency with "jurisdiction to supervise a nd regulate every public utility in this state . . . ." 6 ¶13 On September 30, 2009, the legislature enacted Wis. Stat. § 196.378(4g)(b), which provides that "the [P ublic Service Commission] shall, with the advice of the wind siti ng council, promulgate rules that specify the restrictions a po litical subdivision may impose on the installation or use o f a wind energy system . . . ." 7 ¶14 The statute further provides that the rules to be promulgated by the Public Service Commission shall include setback requirements for wind turbines and may incl ude requirements for other aspects of wind energy syste ms, such as their visual appearance, lighting, and electrical c onnections to the power grid; the shadow flicker they produce; th e noise they produce and the proper means of measuring that nois e; and their interference with radio, telephone, or television s ignals. The statute also states that the setbacks established b y the Public Service Commission shall "provide reasonable protec tion from any
health effects . . . ." 8 ¶15 Wisconsin Stat. § 196.378(4g)(b) provides in fu ll as
follows:

6 Wis. Stat. § 196.02(1)

7 See 2009 Wis. Act 40, § 12.

8 Wis. Stat. § 196.378(4g)(b).No. 2013AP1407

6 The commission shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consist ent with the conditions specified in s. 66.0401(1m)(a) to (c). The subject matter of these rules shall inclu de setback requirements that provide reasonable protection from any health effects, including healt h effects from noise and shadow flicker, associated w ith wind energy systems. The subject matter of these rules shall also include decommissioning and may include visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, shadow flicker, prope r means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction o n the installation or use of a wind energy system tha t is more restrictive than these rules. 9 ¶16 The enactment of Wis. Stat. § 196.378(4g)(b) be gan a three-year process that culminated in the promulgat ion of Wis. Admin. Code ch. PSC 128. ¶17 Shortly after Wis. Stat. § 196.378(4g)(b) was e nacted, the Public Service Commission appointed the members of the Wind Siting Council. The Wind Siting Council was create d by the legislature to provide research and advice to the P ublic Service Commission on the regulation of wind energy systems

. 10

9 See also Wis. Stat. § 66.0401(1m) ("No political subdivision may place any restriction . . . on the installation or use of a wind energy system that is more restric tive than the rules promulgated by the [Public Service Commission ] under s. 196.378(4g)(b).").

10 Wis. Stat. § 15.797(1)(b) ("There is created in th e public service commission a wind siting council tha t consists of . . . members appointed by the public service co mmission for 3-year terms . . . .").No. 2013AP1407

7 ¶18 Between March 29, 2010, and August 4, 2010, the Wind Siting Council met 20 times to discuss the restrict ions a political subdivision should be permitted to impose on wind energy systems. At three of these meetings, the Wi nd Siting Council spent all or a substantial portion of its t ime considering the impact of wind energy systems on pr operty values. ¶19 The Wind Siting Council ultimately concluded th at there is no causal relationship between the siting of wind turbines and a measurable change in property values . The Wind Siting Council set forth this conclusion (along wit h various other findings and recommendations) in its final re commendations to the Public Service Commission dated August 9, 20 10. ¶20 In developing the wind energy rules, the Public Service Commission considered the Wind Siting Counc il's findings and recommendations in conjunction with information gathered from various other sources, including: • Wind-siting regulations and guidelines from a var iety of states, including those immediately adjacent to Wisconsin; • A wide variety of local ordinances and community agreements from throughout the state; • Various white papers and best practices; • Papers from a conference on wind-siting effects; • Commission experience and precedent in wind-sitin g decisions; • Environmental impact statements prepared for wind energy projects in Wisconsin;No. 2013AP1407

8 • Technical and scientific research and writing on wind siting; • Presentations and lectures given on wind-siting issues; • Research by non-profit organizations and educatio nal institutions on wind siting; • Expert testimony on wind-siting issues; • Other states' investigations and precedent on win d siting; • Advice from consulting professionals with public health experience in Wisconsin; • Court cases on wind-siting issues; • Joint development agreements between wind energy developers and political subdivisions; • Lease agreements for wind energy developments; • Complaint resolution documentation from past complaints about wind energy projects;
• The Public Service Commission's noise measurement protocols, stray voltage protocols, and application filing requirements; • Federal regulations and Federal Aviation Administration processes, standards, and provisions ; • Other state agencies' processes regarding politic al subdivision decision-making; and • Research, writing, and presentations by the feder al government and national energy labs on wind-siting issues. ¶21 On May 17, 2010, the Public Service Commission submitted the first draft of its proposed wind ener gy rules toNo. 2013AP1407

9 the Legislative Council staff. 11 On June 14, 2010, after reviewing the Public Service Commission's proposal, the Legislative Council submitted a report to the Publi c Service Commission suggesting specific changes to the rules . The Public Service Commission incorporated many of the Legisla tive Council's suggestions. ¶22 The Public Service Commission then held three p ublic hearings around the state on its proposed wind ener gy rules: one in Fond du Lac on June 28, 2010; one in Tomah o n June 29, 2010; and one in Madison on June 30, 2010. Written comments from the public were accepted until noon on July 7, 2010. ¶23 On August 31, 2010, pursuant to Wis. Stat. § 22 7.19, which provides for legislative review of proposed r ules, the Public Service Commission submitted its proposed wi nd energy rules to the legislature. ¶24 The proposed rules were accompanied by a report to the legislature, as required by Wis. Stat. § 227.19(2). 12

11 See Wis. Stat. § 227.15 ("Prior to a public hearin g on a proposed rule . . . an agency shall submit the prop osed rule to the legislative council staff for review."). See a lso Wis. Stat. § 13.91 (creating a nonpartisan bureau entitl ed "Legislative Council Staff" and setting forth its d uty to review proposed administrative rules).

12 Wisconsin Stat. § 227.19(2) provides that "[a]n ag ency shall submit a notice to the chief clerk of each ho use of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall b e accompanied by a report in the form specified under sub. (3). . . ." (continued)No. 2013AP1407

10 ¶25 The Public Service Commission did not submit a housing impact report. The Public Service Commission's rep ort to the legislature did, however, comment on the likely eff ect of the proposed rules on property values. 13 The report states as
follows: Comments submitted by members of the public and government officials [c]ite studies, report individ ual experiences, and express fears that large wind ener gy systems have a negative impact on property values. . . . The property value impacts described included not being able to get a real estate compan y to list a property, a greatly reduced number of interested buyers, an increased length of time required to sell a property, and offers well below the appraised value of the property. . . . Existing property value studies contain insufficient data to quantify property value impacts to properties one-h alf mile and closer to turbines (emphasis added).

Subsection (3)(g) lists numerous matters to be incl uded in the report an agency submits to the legislature wit h a proposed rule, including "[t]he report of the department of commerce, as required by s. 227.115, if a proposed rule directly or substantially affects the development, construction , cost, or availability of housing in this state." See note 4 , supra.

13 See Wis. Stat. § 227.115(3)(a) (explaining that ho using impact reports shall contain information about the effect of a proposed agency rule on housing in this state, incl uding the "policies, strategies and recommendations of the st ate housing strategy plan," the "cost of constructing, rehabili tating, improving or maintaining single family or multifami ly dwellings, the "purchase price of housing," the "cost and avai lability of financing to purchase or develop housing," and "hou sing costs," as defined in Wis. Stat. § 560.9801(3)(a) and (b)). The state housing strategy plan, a comprehensive fi ve-year housing strategy plan, is governed by Wis. Stat. § 560.9802. The plan is submitted to the governor, the legislat ure, and the federal Department of Housing and Urban Development

.No. 2013AP1407

11 ¶26 The proposed wind energy rules were then subjec t to a lengthy legislative review process. 14 ¶27 The Senate Committee on Commerce, Utilities, En ergy and Rail considered the proposed wind energy rules at a Committee hearing held on October 13, 2010. At the hearing, lobbyists and members of the public offered critici sm and suggested changes to the proposed rules. Represent atives from the Wisconsin Realtors Association and the Wisconsi n Towns Association, two of the plaintiffs in the present c ase, were among those who shared their perspectives with the Senate Committee. ¶28 Based on its review of the proposed rules and t he testimony presented, the Senate Committee voted to return the proposed rules to the Public Service Commission for further consideration and potential modification. ¶29 In a letter to the Public Service Commission da ted November 30, 2010, Senator Jon Erpenbach, a member of the Senate Committee, "share[d] some perspective as to why" th e proposed rules were being returned to the Public Service Com mission. The letter summarizes the concerns raised by various pa rties at the Senate Committee hearing, including the concerns ra ised by the Wisconsin Realtors Association and the Wisconsin To wns Association. The letter then states: "I think the above

14 See Wis. Stat. § 227.19 (governing legislative rev iew of proposed administrative rules).No. 2013AP1407

12 outline gives the [Public Service] Commission a num ber of particular issues to re-examine within the rule[s]. " ¶30 Senator Erpenbach's letter is silent about the failure to file a housing impact report and says nothing ab out the effect of the proposed wind energy rules on propert y values or on housing generally. ¶31 In response to the legislature's concerns, the Public Service Commission modified the proposed rules. Th e rules were resubmitted to the legislature on December 9, 2010. ¶32 On February 28, 2011, after the legislature's r eview period expired, the Public Service Commission promu lgated its wind energy rules by publication in the Wisconsin A dministrative Register. The rules, codified as Wis. Admin. Code ch. PSC 128, were to take effect the next day. ¶33 On the first day the rules became effective (Ma rch 1, 2011), the Joint Committee for Review of Administra tive Rules suspended application of the rules pursuant to Wis. Stat. § 227.26(2)(d). 15 ¶34 Suspension of a rule is temporary unless the ru le is repealed. 16 Wisconsin Admin. Code ch. PSC 128 was not repeale d. Accordingly, Wis. Admin. Code ch. PSC 128 took effe ct on March

15 Wisconsin Stat. § 227.26(2)(d), titled "Temporary suspension of rules," provides that the Joint Commi ttee for Review of Administrative Rules "may suspend any rul e by a majority vote of a quorum of the committee. . . ."

16 See Wis. Stat. § 227.26(2)(i) (governing the repea l of a suspended rule).No. 2013AP1407

13 16, 2012. Nearly three years had elapsed since the legislature had initially directed the Public Service Commissio n to promulgate rules governing wind energy systems. ¶35 On June 6, 2012, WRA filed a lawsuit in the cir cuit court (the subject of this review), seeking a decla ration under Wis. Stat. § 227.40(4)(a) that Wis. Admin. Code ch. PSC 128 is invalid because it was promulgated without complyin g with statutory rule-making procedures ¶36 Both WRA and the Public Service Commission file d motions for summary judgment. The circuit court he ard the motions on April 29, 2013. At the conclusion of th e hearing, the circuit court granted the Public Service Commis sion's motion for summary judgment, stating: I'm satisfied, when you look at the exact wording o f the rule of 227.015 [sic], "If a proposed rule directly or substantially affects the development, construction costs, or availability of housing in t he State," and it goes on, I'm satisfied that these wi nd siting rules——wind turbine siting rules do not and that there was no requirement to have a report. ¶37 In an unpublished decision, the court of appeal s affirmed the circuit court's summary judgment rulin g. The court of appeals reasoned as follows: Wisconsin Stat. § 227.115(2) requires a housing imp act report only when a proposed rule "directly or substantially affects the development, construction , cost, or availability of housing in this state[.]" . . . Although neither the [Public Servi ce] Commission nor the wind siting council explicitly addressed § 227.115(2), both entities clearly found that wind energy systems do not substantially affec t property values. Based on that finding, the [Publi c Service] Commission could reasonably conclude itsNo. 2013AP1407

14 proposed rules . . . would not directly or substantially affect the development, construction, cost, or availability of housing in Wisconsin.

. . . . We must . . . presume that [Wis. Admin. Code ch.] P SC 128 was duly promulgated and that the [Public Servi ce Commission] complied with Wis. Stat. § 227.115(2). In other words, we must presume no housing impact repo rt was required . . . . 17

II ¶38 We review the summary judgment in favor of the Public Service Commission using the same standards and met hods applied by the circuit court. 18 Under Wis. Stat. § 802.08(2), a moving party is entitled to summary judgment if there are no genuine issues of material fact and the moving party is ent itled to judgment as a matter of law. ¶39 In the instant case, the parties do not dispute the facts. The instant case raises only a question of law, namely whether the wind energy rules were promulgated by t he Public Service Commission without compliance with statutor y rule-making procedures. 19 More specifically, the question is whether under

17 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013 AP1407, unpublished slip op., ¶¶12-13 (Wis. Ct. App. Mar. 2 5, 2014).

18 Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105 , ¶15, 322 Wis. 2d 21, 777 N.W.2d 67.

19 See Wis. Stat. § 227.40(4)(a) (providing that the court shall declare an administrative rule invalid if it finds that (1) the rule violates constitutional provisions; (2 ) the rule exceeds the statutory authority of the agency; or ( 3) the rule was promulgated without compliance with statutory r ule-making procedures).No. 2013AP1407

15 Wis. Stat. § 227.115(2), the Department of Commerce was required as a matter of law to prepare a housing impact repo rt before Wis. Admin. Code ch. PSC 128 was submitted to the L egislative Council staff for review. As WRA acknowledges, the interpretation and application of statutes ordinari ly present questions of law this court decides independently o f the circuit court and the court of appeals, but benefitting fro m their analyses. 20

III ¶40 Before addressing whether a housing impact repo rt was required as a matter of law for Wis. Admin. Code ch . PSC 128, we set forth the statutory framework within which this dispute arises. ¶41 The instant case involves the 2009-10 version o f the Wisconsin Statutes. We caution that the statutory landscape of agency rule-making has since changed. See 2011 Wis . Act 21. One commentator has summarized these changes as fol lows: 2011 Wisconsin Act 21 significantly changes how administrative rules are promulgated. Among other things, it narrows state agencies' rule-making authority, gives the governor new powers to approve or prevent the adoption of rules, expands the economic

impact-analysis requirement to all agencies, and

20 Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 6 71 N.W.2d 279.No. 2013AP1407

16 expands venue in declaratory judgment actions to al l counties. 21 ¶42 None of the changes enacted in 2011 are at issu e in the instant case. Thus, we turn to the 2009-10 sta tutes that govern the present dispute. ¶43 We previously set forth the statutory provision that directs the Public Service Commission to promulgate rules specifying the restrictions a political subdivision may impose on the installation or use of a wind energy system. See Wis. Stat. § 196.378(4g)(b), set forth in full at ¶15, a bove. The Public Service Commission adopted Wis. Admin. Code ch. PSC 128, the wind energy rules at issue, pursuant to this st atutory authority. ¶44 The promulgation of a rule by the Public Servic e Commission and judicial review of a rule promulgate d by the Public Service Commission are both governed by Chap ter 227 of the Wisconsin Statutes (titled "Administrative Proc edure and Review"). Several statutory provisions within this chapter are relevant to the instant case. We set them forth in turn. ¶45 Wisconsin Stat. § 227.40(1) provides that the exclusive method for judicial review of the validit y of an

21 Ronald Sklansky, Changing the Rules on Rulemaking, Wis. Lawyer, Aug. 2011, at 10, available at http://www.wisbar.org/newspublications/wisconsinlaw yer/pages/wis consin-lawyer.aspx?Volume=84&Issue=8. For a challenge to 2011 Wis. Act 21, see Coyne v. W alker, 2015 WI App 21, 361 Wis. 2d 225, ___ N.W.2d ___ (pe tition for review filed Mar. 20, 2015).No. 2013AP1407

17 agency rule is a declaratory judgment action challe nging the rule filed in the circuit court. The text of Wis. Stat. § 227.40(1) is as follows: "[T]he exclusive means o f judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rul e brought in the circuit court . . . ." 22 ¶46 WRA sought declaratory relief in the instant ca se pursuant to this statutory provision. ¶47 When a declaratory judgment action challenging a rule is filed, Wis. Stat. § 227.40(4)(a) governs the lim ited circumstances under which a court grants relief. U nder Wis. Stat. § 227.40(4)(a), a court shall declare a chall enged rule invalid if it finds that (1) the rule violates cons titutional provisions; (2) the rule exceeds the statutory auth ority of the agency; or (3) the rule was promulgated without com pliance with statutory rule-making procedures. ¶48 Wisconsin Stat. § 227.40(4)(a) states in full a s follows: "In any proceeding pursuant to this secti on for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was

22 See also Wis. Stat. § 227.01(13) (defining "rule" for purposes of Wis. Stat. ch. 227 as "a regulation, st andard, statement of policy or general order of general app lication which has the effect of law and which is issued by an agency to implement, interpret or make specific legislation e nforced or administered by the agency or to govern the organiz ation or procedure of the agency").No. 2013AP1407

18 promulgated without compliance with statutory rule- making procedures." ¶49 WRA does not assert that Wis. Admin. Code ch. P SC 128 violates constitutional provisions or exceeds the s tatutory authority of the Public Service Commission. 23 Instead, WRA describes its challenge to Wis. Admin. Code ch. PSC 128 as a "facial challenge to the rule[s]," arguing only tha t the rules were promulgated without compliance with statutory rule-making procedures. ¶50 Thus, we continue by setting forth the statutor y rulemaking procedures that are relevant to the instant case. ¶51 Wisconsin Stat. § 227.20(1) requires an agency promulgating a rule to file a certified copy of the rule it is promulgating with the Legislative Reference Bureau. 24 The statute provides: "An agency shall file a certifie d copy of each rule it promulgates with the legislative refer ence bureau.

23 The Public Service Commission clearly had statutor y authority to promulgate Wis. Admin. Code ch. PSC 12 8. Several provisions within Wis. Stat. ch. 196 (titled "Regul ation of Public Utilities") authorize the Public Service Com mission to promulgate rules governing public utilities. The p rovision relevant here, which we discussed previously, is Wi s. Stat. § 196.378(4g)(b) (directing the Public Service Comm ission to promulgate rules governing wind energy systems).

24 The Legislative Reference Bureau is a nonpartisan bureau established by the legislature to provide "referenc e services" to the legislature, other government officials, and the public. See Wis. Stat. § 13.92.No. 2013AP1407

19 No rule is valid until the certified copy has been filed. . . ." 25
¶52 The Public Service Commission filed a certified copy of the rules at issue with the Legislative Referenc e Bureau. ¶53 Filing a certified copy of a rule with the Legi slative Reference Bureau gives rise to a legislatively enac ted presumption that the process by which the rules wer e promulgated was proper. More specifically, Wis. Stat. § 227.20 (3) creates a presumption that a rule filed with the Legislative Reference Bureau was "duly promulgated" and that "all of the rule-making procedures required by [Chapter 227] were complied with." ¶54 The full text of Wis. Stat. § 227.20(3) is as f ollows: (3) Filing a certified copy of a rule with the legislative reference bureau creates a presumption of all of the following: (a) That the rule was duly promulgated by the agency. (b) That the rule was filed and made available for public inspection on the date and time endorsed on it. (c) That all of the rule-making procedures required by this chapter were complied with. (d) That the text of the certified copy of the rule is the text as promulgated by the agency. ¶55 Chapter 227 of the Wisconsin Statutes does not discuss this presumption further.

25 Wis. Stat. § 227.20(1).No. 2013AP1407

20 ¶56 Finally, we return to the statute with which we began: Wis. Stat. § 227.115(2), which governs housing impa ct reports. The full text of Wis. Stat. § 227.115(2) is as foll ows: (2) Report on rules affecting housing. If a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state, the department [of administration] shall prepare a report on the propo sed rule before it is submitted to the legislative coun cil staff under s. 227.15. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department. ¶57 These statutes provide the foundation for our a nalysis of the legal issue presented.

IV ¶58 As previously explained, the issue presented is whether the wind energy rules were promulgated with out compliance with statutory rule-making procedures, t hat is, whether the rules were promulgated without a housin g impact report in violation of the law. ¶59 We decide this issue as follows. ¶60 First, we explain that because there is a legislatively enacted presumption that the wind ene rgy rules were duly promulgated and that all statutory rule-m aking procedures were complied with, and because WRA is t he party challenging the validity of the rules, WRA bears th e burden of proof. WRA must prove that a housing impact report was requiredNo. 2013AP1407

21 as a matter of law for the promulgation of Wis. Adm in. Code ch. PSC 128. ¶61 Second, we conclude that WRA has not fulfilled its burden of proving that as a matter of law, Wis. Adm in. Code ch. PSC 128 was promulgated without compliance with sta tutory rulemaking procedures. ¶62 Third, and finally, we explain that this court' s respect for the doctrine of separation of powers an d the role of the legislature counsels against our invalidating a chapter of agency rules that survived the statutorily prescrib ed process of legislative review. ¶63 For these reasons, we uphold Wis. Admin. Code c h. PSC 128 against WRA's challenge and declare on the basi s of the record before us that the rules at issue were not p romulgated without compliance with statutory rule-making proce dures.

A ¶64 Because WRA contests what showing it must make in the instant case, we begin by explaining that WRA has t he burden to prove that a housing impact report was required as a matter of law for Wis. Admin. Code ch. PSC 128. ¶65 The Public Service Commission stresses that it filed a certified copy of Wis. Admin. Code ch. PSC 128 with the Legislative Reference Bureau and therefore has the benefit of the statutory presumption that it complied with all statutory rule-making procedures. ¶66 The text of Wis. Stat. § 227.20(3) directs us t o presume that the rule was duly promulgated by the a gency andNo. 2013AP1407

22 that all statutory rule-making procedures have been followed, including those pertaining to the preparation of a housing impact report. The statute apparently creates a re buttable presumption, similar in operation to the generally recognized rebuttable presumption of the constitutionality of a statute; a court is to presume that the agency that promulgate d the rule followed the statute regarding housing reports, but a party challenging the rule may rebut that presumption. T he statute also requires courts to respect the legislature's r ole in reviewing and approving agency rules by presuming t he validity of rules that have survived the legislature's scrut iny. ¶67 In any event, as the party challenging the vali dity of the wind energy rules, WRA has the burden of provin g the invalidity of the rules. 26 Thus, even without the statutory presumption, WRA has the burden to prove that a hou sing impact report was required as a matter of law for Wis. Adm in. Code ch. PSC 128.

B ¶68 WRA attempts to meet its burden of proof by set ting forth unconvincing interpretations of Wis. Stat. § 227.115(2)

26 "The burdens of pleading and proof with regard to most facts have been and should be assigned to the plain tiff who generally seeks to change the present state of affa irs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion." 2 Kenneth S. Brow n, McCormick on Evidence § 337, at 648 (7th ed. 2013). See also Loeb v. Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 2 27 (1965); Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 2 53 (Ct. App. 1997).No. 2013AP1407

23 (governing housing impact reports) and Wis. Stat. § 196.378(4g)(b) (directing the legislature to prom ulgate wind energy rules). ¶69 WRA first contends that a housing impact report is required under Wis. Stat. § 227.115(2) whenever a p roposed rule relates to housing and that rules promulgated pursu ant to Wis. Stat. § 196.378(4g)(b) necessarily relate to housin g. WRA further argues that under Wis. Stat. § 227.115(5), the Public Service Commission was required to, but did not, ma ke an explicit determination of whether a housing impact report was required. ¶70 We examine these arguments in turn. ¶71 WRA asserts that in the context of Wis. Stat. § 227.115(2), which requires the preparation of a h ousing impact report for proposed rules that directly or substant ially affect the development, construction, cost, or availabilit y of housing in this state, "the word 'affect' should be interpr eted to mean 'concern' or 'deal with.'" 27 ¶72 WRA does not attempt to define the meaning of t he other words in the statute. WRA does not explain w hat the phrase "directly or substantially" means, what it m eans to affect the "cost" of housing, or what it means to a ffect housing "in this state."

27 WRA's brief at 36.No. 2013AP1407

24 ¶73 WRA implies, however, that the housing impact r eport requirement is far-reaching and that Wis. Stat. § 2 27.115(2) mandates the preparation of a housing impact report for all proposed rules that may in any way affect any kind of housing in
the state. ¶74 With this expansive interpretation of Wis. Stat

. § 227.115(2) in mind, WRA next contends that any an d all rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b) , which directs the Public Service Commission to promulgate wind energy rules, require a housing impact report. 28 WRA reasons that rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b) will necessarily "concern" or "deal with" housing becaus e such rules are intended to provide reasonable protection from the health effects of wind turbines, because "improper [wind t urbine] setback[s] could unreasonably affect the health of those living near wind turbines," 29 and because such unreasonable health effects could in turn affect property values. 30 ¶75 WRA also reasons that rules promulgated pursuan t to Wis. Stat. § 196.378(4g)(b) will necessarily "conce rn" or "deal with" housing because such rules limit the ability of local

28 "On its face, Wis. Stat. § 196.378(4g)(b) directed the PSC to create a rule that the Legislature expected would 'affect housing' in this state." WRA's brief at 18.

29 WRA's brief at 15.

30 "Logically, if living in houses located too close to wind turbines would be unhealthy, that knowledge would a ffect the desirability and value of such homes." WRA's brief at 38.No. 2013AP1407

25 governmental units to regulate the installation and use of wind turbines in their communities for the purpose of pr otecting housing. Thus, in WRA's view, the content of the r ules established pursuant to Wis. Stat. § 196.378(4g)(b) is irrelevant; a housing impact report is required no matter what the rules provide. ¶76 Based on WRA's interpretation of these two stat utes, WRA concludes that all wind energy rules have the p otential to affect property values and, consequently, that a ho using impact report was required for the specific wind energy ru les at issue. ¶77 WRA's reasoning is not convincing. ¶78 First, WRA seems to view Wis. Stat. § 227.115(2 ) as requiring a housing impact report whenever a propos ed rule in any way relates to housing. This reading of the st atute ignores the statutory text. The statute uses the phrase "d irectly or substantially," which demonstrates that not just an y effect will trigger the housing impact report requirement. WRA reads this phrase out of the statute. ¶79 The court of appeals explained that "a housing impact report is not required simply because the subject m atter of a proposed rule relates to housing, or because the ru le tangentially affects housing in some way." 31 We agree. The ordinary meaning of the phrase "directly or substan tially affects" is not "affects in any way" or "relates to in some

31 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013 AP1407, unpublished slip op., ¶14 (Wis. Ct. App. Mar. 25, 2 014).No. 2013AP1407

26 way," as WRA seems to believe. Wisconsin Stat. § 2 27.115(2) requires something more. ¶80 The drafting history of Wis. Stat. § 227.115(2) supports our interpretation of the housing impact r eport requirement. During the drafting process, the word s "directly or indirectly" were replaced with the words "direct ly or substantially." See 1995 A.B. 384, Assembly Substi tute Am. 1. We agree with the court of appeals that this modifi cation of the bill's language suggests that the legislature did n ot intend for a housing impact report to be prepared every time a proposed rule has some indirect or incidental effect on hous ing. ¶81 WRA's interpretation of Wis. Stat. § 196.378(4g )(b), which directs the Public Service Commission to prom ulgate wind energy rules, is equally implausible. Nothing in W is. Stat. § 196.378(4g)(b) states explicitly or implicitly th at rules governing wind energy systems will necessarily dire ctly or substantially affect the development, construction, cost, or availability of housing in this state, such that a housing impact report will be required. ¶82 Wisconsin Stat. § 196.378(4g)(b) instructs the Public Service Commission to develop rules that "provide r easonable protection from any health effects . . . associated with wind energy systems." (Emphasis added.) There is no me ntion in Wis. Stat. § 196.378(4g)(b) of protecting housing genera lly or of protecting property values specifically. See Wis. Stat. § 196.378(4g)(b), set forth in full at ¶15, above.No. 2013AP1407

27 ¶83 A review of Wis. Stat. § 13.099(2) supports our conclusion that rules promulgated pursuant to Wis. Stat. § 196.378(4g)(b) do not necessarily require a housi ng impact report. ¶84 Wisconsin Stat. § 13.099(2) requires a housing impact report for any bill introduced in the legislature t hat "directly or substantially affects the development, construct ion, cost or availability of housing in this state . . . ." Thu s, Wis. Stat. § 13.099(2) creates a housing impact report require ment for bills similar to the housing impact report requirem ent for proposed rules. ¶85 When the legislature introduced the bill that w as subsequently enacted as Wis. Stat. § 196.378(4g)(b) , it did not request a housing impact report and no housing impa ct report was prepared. The strong, unrebutted implication is th at the legislature did not consider introduction of the bi ll that became Wis. Stat. § 196.378(4g)(b) (or the wind ene rgy rules that would be promulgated thereunder) as "directly or substantially affect[ing] the development, construc tion, cost or availability of housing in this state." ¶86 There is, in sum, no foundation for WRA's asser tion that the legislature "expected" the wind energy rul es promulgated pursuant to Wis. Stat. § 196.378(4g)(b) to necessarily require a housing impact report under W is. Stat. § 227.115(2). WRA's interpretations of Wis. Stat. §§ 227.115(2) and 196.378(4g)(b) are not cogent.No. 2013AP1407

28 ¶87 We turn next to WRA's argument that the wind en ergy rules were necessarily promulgated without complian ce with statutory rule-making procedures because the Public Service Commission was required to, but did not, make an ex plicit determination of whether a housing impact report wa s required. ¶88 According to WRA, the record shows that during the time the Public Service Commission was engaged in t he promulgation of Wis. Admin. Code ch. PSC 128, neith er the Public Service Commission itself nor the Wind Siting Counc il ever discussed or voted upon whether a housing impact re port was necessary. WRA apparently believes that an explici t, on-therecord determination by the Public Service Commissi on regarding whether a housing impact report is needed was requi red before the wind energy rules could be promulgated. ¶89 WRA does not, however, point to any statutory provision mandating such an explicit determination by the Public Service Commission or any other entity, and we find none. We decline to read a procedural requirement into the s tatutes that the legislature opted not to impose. 32 ¶90 The absence of an explicit, on-the-record determination regarding whether a housing impact re port is required is therefore not dispositive and it does n ot persuade

32 "We should not read into the statute language that the legislature did not put in." State v. Matasek, 201 4 WI 27, ¶20, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v . LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635).No. 2013AP1407

29 us that the wind energy rules were promulgated with out compliance with statutory rule-making procedures. ¶91 In sum, WRA's interpretations of Wis. Stat. §§ 227.115(2) and 196.378(4g)(b) are unconvincing, and we are not persuaded that the Public Service Commission wa s required to make an on-the-record determination regarding the n ecessity of a housing impact report. WRA has not fulfilled its b urden of proving that a housing impact report was required a s a matter of law for Wis. Admin. Code ch. PSC 128.

C ¶92 We turn to one final consideration that weighs against our granting WRA relief in the present case. ¶93 Although WRA recognizes that Wis. Admin. Code c h. PSC 128 was promulgated after an active and lengthy leg islative review process, WRA nevertheless asks this court to declare that the failure to submit a housing impact report rende rs Wis. Admin. Code ch. PSC 128 invalid. ¶94 According to WRA, the Public Service Commission "usurped the Legislature's power when it decided th at it had adequately protected the public [through Wis. Admin . Code ch. PSC 128] and that no second opinion [in the form of a housing impact report] [wa]s therefore required." 33 ¶95 Like WRA, we are concerned about usurpation of the legislative function. We conclude, however, that i f we granted

33 WRA's brief at 15.No. 2013AP1407

30 WRA its requested relief in the instant case, we wo uld be usurping the legislative function by striking down rules that survived the legislature's scrutiny. ¶96 The separation of powers doctrine informs us in this matter. "The Wisconsin constitution creates three separate coordinate branches of government, no branch subordin ate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no b ranch to exercise the power committed by the constitution to another." 34 ¶97 Chapter 227 of the Wisconsin Statutes governs a gency rule-making and legislative review of agency rules, among other things. These statutes comprise a system devised b y the legislature itself to govern the legislature's role in and oversight of agency rule-making. Chapter 227 provi des for expansive legislative review of rules both before t heir promulgation 35 and after their promulgation. 36 ¶98 Pursuant to these statutes, the legislature has the opportunity to request modifications to proposed ru les, 37 to

34 State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 70 3 (1982).

35 See Wis. Stat. § 227.19 ("Legislative Review Prior to Promulgation").

36 See Wis. Stat. § 227.26 ("Legislative Review After Promulgation; Joint Committee for Review of Adminis trative Rules").

37 See Wis. Stat. § 227.19(4)(b); Wis. Stat. § 227.19 (4)(d); Wis. Stat. § 227.19(5)(b).No. 2013AP1407

31 prevent the promulgation of proposed rules, 38 to temporarily suspend rules that have been promulgated, 39 and to repeal promulgated rules altogether. 40 ¶99 In light of the statutes' providing for expansi ve legislative review of rules and limited judicial re view of rules, it is incumbent upon the court to exercise b oth deference and restraint in the present case. ¶100 The legislature did not merely passively permi t the promulgation of Wis. Admin. Code ch. PSC 128. On t he contrary, the legislature held a hearing on Wis. Admin. Code ch. PSC 128 prior to its promulgation and then sent the rules b ack to the Public Service Commission for further consideration

. ¶101 WRA had an opportunity to register its objecti ons to the rules before the legislature. The rules were m odified in response to the legislature's concerns, which encom passed WRA's

concerns. ¶102 Even after its promulgation, Wis. Admin. Code ch. PSC 128 was temporarily suspended for yet another round of legislative review. ¶103 In sum, the legislature had ample opportunity to express reservations about the proposed wind energy rules, to request changes to the proposed rules, to prevent p romulgation

38 Wis. Stat. § 227.19(5)(e); Wis. Stat. § 227.19(5)( f).

39 Wis. Stat. § 227.26(2)(d).

40 Wis. Stat. § 227.26(2)(f); Wis. Stat. § 227.26(2)( i).No. 2013AP1407

32 of the proposed rules, and to suspend and even repe al the rules after they were promulgated. ¶104 The fact is, after a lengthy and active period of review, the legislature allowed the rules set forth in Wis. Admin. Code ch. PSC 128 to go into effect. ¶105 The Public Service Commission's wind energy ru les survived the legislative review process and now hav e "the force and effect of law in Wisconsin." 41 ¶106 In the instant case, the court's role is limit ed. We may determine only whether the rules were promulgat ed without compliance with statutory rule-making procedures. WRA has failed to meet its burden of proving non-compliance

. ¶107 Nonetheless, our opinion in the instant case s hould not be read to imply that WRA's frustration with th e process by which Wis. Admin. Code ch. PSC 128 was promulgated is entirely
unwarranted. ¶108 WRA stated at oral argument that it greatly va lues Wis. Stat. § 227.115(2). In WRA's view, the second opinion a housing impact report provides to the legislature c onstitutes a necessary check in the process of promulgating a ru le that affects housing. ¶109 WRA also stated at oral argument that to its knowledge, no housing impact report has ever been r equested or

41 See State ex rel. Staples v. DHSS, 115 Wis. 2d 363 , 367, 340 N.W.2d 194 (1983).No. 2013AP1407

33 produced under Wis. Stat. § 227.115(2). 42 Thus, WRA believes a critical step in the process of promulgating a rule that affects housing has been routinely ignored and has been cir cumvented in the instant case. ¶110 WRA's concerns, while understandable, do not p ersuade us to grant it relief. ¶111 We conclude that WRA has not demonstrated that a housing impact report was required as a matter of l aw for Wis. Admin. Code ch. PSC 128. The texts of the governin g statutes and the wind energy rules do not demonstrate as a m atter of law that the rules directly or substantially affect the development, construction, cost, or availability of housing in t his state. ¶112 We further conclude that invalidating Wis. Adm in. Code ch. PSC 128 under the circumstances presented in th e instant case would infringe on the role of the legislature, which we decline to do. ¶113 Accordingly, WRA's challenge to Wis. Admin. Co de ch. PSC 128 fails. By the Court. —The decision of the court of appeals is affirmed.

42 We, too, have been unable to confirm that any hous ing impact report has ever been prepared pursuant to Wi s. Stat. § 227.115(2).No. 2013AP1407.pdr

1 ¶114 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association, Jon E. Morehouse, Sr. and Ervin E. Selk (hereinafter Wisco nsin Realtors) challenge the Public Service Commission's (the Commission) promulgation of Wis. Admin. Code ch. PS C 128 because the Commission did not follow the required rule-mak ing procedure set out in Wis. Stat. § 227.115(2) (2009-10). 1 I conclude that the Commission was obligated, as a matter of law, t o obtain a § 227.115(2) housing report because ch. PSC 128 dir ectly affects housing. The Commission failed to obtain a § 227.1 15(2) housing report; therefore, ch. PSC 128 is invalid. Wis. St at. § 227.40(4)(a). Accordingly, I respectfully dissen t from the majority opinion.

I. BACKGROUND ¶115 This case reaches us on competing motions for summary judgment in regard to whether Wis. Admin. Code ch. PSC 128 was lawfully promulgated. Chapter PSC 128 regulates wi nd energy systems. In relation to housing, it establishes th e following: maximum setbacks of wind turbines from dwellings; p ermissible wind turbine noise levels, as measured at nearby dw ellings; the number of hours per year during which dwellings can be subjected to shadow flicker cast by wind turbines. ¶116 The legislature was concerned that wind turbin es may affect both the health of Wisconsin citizens and ho using. Wis.

1 All subsequent references to the Wisconsin Statute s are to the 2009-10 version unless otherwise indicated.No. 2013AP1407.pdr

2 Stat. § 196.378(4g)(e); Wis. Stat. § 227.115(2). H owever, the legislature did not want each local unit of governm ent imposing its own regulations, which could unnecessarily impe de the development of wind energy in Wisconsin. According ly, the legislature directed the Commission to promulgate r ules that would reasonably protect people in their homes from health effects and reduced property values that could resu lt from nearby wind turbines, while at the same time creati ng a uniform system of regulations for wind energy systems throu ghout the state. § 196.378(4g)(b). ¶117 In promulgating Wis. Admin. Code ch. PSC 128, the Commission was required to obtain a comprehensive h ousing report from the Department of Commerce 2 if its proposed rule "directly or substantially affects the development, construct ion, cost, or availability of housing in this state." Wis. Stat. § 227.115(2). The required housing report was to b e prepared "before [the proposed rule] is submitted to the leg islative council staff under s. 227.15." Id. ¶118 The record and arguments of the parties reveal that the Commission never requested or obtained the requ ired housing report from the Department. Apparently, the Commis sion never considered its obligations under Wis. Stat. § 227.1 15(2) because § 227.115 is not listed in the Commission's "Plain Language

2 At the time Wis. Admin. Code ch. PSC 128 was creat ed, the Department of Commerce was to have prepared the hou sing report. Wis. Stat. § 227.115(1)(a). The current version of § 227.115(1)(a) (2013-14) requires that the report be prepared by the Department of Administration.No. 2013AP1407.pdr

3 Analysis" that it submitted to the Legislature and in which the Commission mentioned other statutes.

II. DISCUSSION ¶119 The majority opinion employs three methods by which it permits the Commission to ignore the command of the legislature. First, it misunderstands Wisconsin Realtors' argume nt, and therefore, never addresses it. Second, without dec iding what Wis. Stat. § 227.115(2) means, the majority opinion chooses not to apply § 227.115(2) to Wis. Admin. Code ch. PSC 1 28. 3 In so doing, it ignores the policy choice of the legislat ure, which requires a housing report if a Commission rule dire ctly or substantially affects housing. Third, the majority opinion employs Wis. Stat. § 227.20(3) to create a presumpt ion that the Commission followed all applicable rule-making proc edures based on the Commission's filing of a certified copy of c h. PSC 128 with the Legislative Reference Bureau. 4

A. Standard of Review ¶120 We review summary judgment granted to the Comm ission by the circuit court and affirmed by the court of a ppeals. We review independently, as a matter of law, whether s ummary judgment was properly granted. Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787 N .W.2d 6. Our review centers on interpretation and application of statutes. Statutory interpretation and application present qu estions of

3 Majority op., ¶7.

4 Id., ¶¶66-67.No. 2013AP1407.pdr

4 law for our independent review; however, we benefit from the reasoning of other courts' decisions. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W .2d 581. This controversy also involves the interpretation a nd application of administrative rules. These too pre sent questions of law for our independent review. Brown v. Brown, 177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993 ). B. Rule Promulgation 1. "Directly affects" ¶121 All parties agree that if Wis. Admin. Code ch. PSC 128 directly affects housing, the Commission was requir ed to obtain a housing report from the Department before it file d the rule with the Legislative Reference Bureau. The parties ' dispute centers on the meaning of "directly affects" in Wis . Stat. § 227.115(2). This issue is clouded in the majorit y opinion because it never bothers to interpret § 227.115(2) and tell the reader what "directly affects" means. It is also c louded by the majority opinion's repeated mischaracterization of Wisconsin Realtors' argument. 5 ¶122 Determination of the meaning of "directly affe cts" is informed by the meaning of Wis. Stat. § 196.378(4g) (b) because § 196.378(4g)(b) is the enabling legislation for Wi s. Admin.

5 For example, the majority asserts, that Wisconsin Realtors "contends that a housing impact report is required under Wis. Stat. § 227.115(2) whenever a proposed rule relates to housing." Majority op., ¶69. That is not an accurate represe ntation of Wisconsin Realtors' contention. Rather, Wisconsin Realtors contends that a housing report is required when a C ommission's rule directly or substantially affects housing.No. 2013AP1407.pdr

5 Code ch. PSC 128. Therefore, the Commission was re quired to follow the legislative directives of § 196.378(4g)( b) when it promulgated ch. PSC 128. Wis. Hosp. Ass'n v. Natur al Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990 ) (explaining that on review "court[s] should identify the elemen ts of the enabling statute and match the rule against those e lements"). The meaning of Wis. Stat. § 227.115(2) also informs the controversy before us because of the proximity of w ind turbines to housing. ¶123 I interpret Wis. Stat. § 196.378(4g)(b) and Wi s. Stat. § 227.115(2) to ascertain their meaning. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶43, 271 Wis. 2d 633, 6 81 N.W.2d 110. Scope, context and purpose are relevant to a plain meaning analysis. Id., ¶48. I also note that "[a]n admini strative agency has only those powers which are expressly co nferred or can be fairly implied from the statutes under which it operates." Oneida Cnty. v. Converse, 180 Wis. 2d 1 20, 125, 508 N.W.2d 416 (1993). ¶124 Wisconsin Stat. § 227.115(2) addresses rules t hat affect housing such that, together with Wis. Stat. § 196.378(4g)(b), they establish requirements for the Commission's promulgation of Wis. Admin. Code ch. P SC 128. Furthermore, because these statutes bear on the sam e subject matter, here, the promulgation of administrative ru les that regulate wind turbines, they are construed in that context so that they are consistent with one another. McDonou gh v. DWD, 227 Wis. 2d 271, 279, 595 N.W.2d 686 (1999). Accor dingly, theNo. 2013AP1407.pdr

6 Commission was required to have exercised its rule- making authority within the framework established by these statutes. ¶125 I begin with the words chosen by the legislatu re in its enabling legislation. Wisconsin Stat. § 196.37 8(4g)(b) provides in relevant part:

The commission shall . . . promulgate rules that specify the restrictions a political subdivision ma y impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401(1m)(a) to (c). The subject matter of these rules shall include setback requirements that provi de reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules . . . may include . .

. set-back distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive th an these rules. ¶126 The legislative grant of authority to the Comm ission in Wis. Stat. § 196.378(4g)(b) described the legisl ature's purpose and topics that the Commission was required to address when promulgating Wis. Admin. Code ch. PSC 128. Se ction 196.378(4g)(b) plainly states that the rules enacte d "shall include setback requirements that provide reasonabl e protection from any health effects, including health effects f rom noise and shadow flicker." Section 196.378(4g)(b) also grant ed the Commission discretionary authority in other areas. ¶127 There are good reasons for the legislature's m andate that the Commission enact setback requirements for wind turbines. It is well known that wind turbines may be harmful toNo. 2013AP1407.pdr

7 the health of those who live close to them and are sensitive to the noise and shadow flicker they produce. See Roy D. Jeffery, et al., Adverse Health Effects of Industrial Wind T urbines, 59 Canadian Family Physician 473 (2013); Jerry Punch & Richard James, Negative Health Effects of Noise from Indust rial Wind Turbines: Some Background, http://www.hearinghealthmatters.org/hearingviews/20 14/windturbine-health-problems-noise (last visited March 2 6, 2015). ¶128 Directly connected to legislatively focused he alth concerns, Wis. Admin. Code § PSC 128.13 establishes siting criteria for wind turbines in regard to setback dis tance and height requirements; Wis. Admin. Code § PSC 128.14 addresses noise criteria; 6 Wis. Admin. Code § PSC 128.15 addresses shadow flicker. 7 Accordingly, the Commission's application of Wis. Stat. § 196.378(4g)(b) is driven by wind turbines' effects on the health of people who live or work in proximity to wind turbines.

6 Wisconsin Admin. Code § PSC 128.14 provides in rel evant part: "[A]n owner shall operate the wind energy sy stem so that the noise attributable to the wind energy system do es not exceed 50 dBA during daytime hours and 45 dBA during night time hours." § PSC 128.14(3)(a). The determination of noise lev el is made at "the outside wall nearest to the closest wind turbi ne." § PSC 128.14(4).

7 Wisconsin Admin. Code § PSC 128.15(1)(b) and (2) p rovides in relevant part: "An owner shall design the propo sed wind energy system to minimize shadow flicker at a resid ence or occupied community building . . . [so it] does not cause more than 30 hours per year of shadow flicker."No. 2013AP1407.pdr

8 ¶129 Wisconsin Admin. Code § PSC 128.13(1)(a) provi des for permissible setbacks, depending on the type of buil ding that is nearby. The largest setback is 1,250 feet. The se tback from wind turbines generally is measured as the distance from the wind turbine tower to the nearest point on the foun dation of a residence or occupied community building. § PSC 12 8.13(1)(b). ¶130 The setbacks of Wis. Admin. Code § PSC 128.13 lessen the noise and shadow flicker impacts of wind turbin es on residents and real estate that are as far away from the wind turbines as § PSC 128.13(1)(a) provides. Stated ot herwise, without consideration of the setbacks of § PSC 128. 13, wind turbines could be placed in the middle of residenti al communities with houses only a few feet away so lon g as no local ordinance regulated placement. ¶131 Because Wis. Admin. Code ch. PSC 128 prevents placement of wind turbines that are inconsistent wi th its provisions, ch. PSC 128 lessens the effects of wind turbines on the health of people who reside nearby. Chapter PS C 128 does so by subjecting the housing in which people live to l ess noise and less shadow flicker. Stated otherwise, §§ PSC 128. 13, 128.14 and 128.15 directly affect the levels of noise and shadow flicker that wind turbines inflict on nearby housin g. ¶132 The effect of wind turbines on the health of p eople living nearby was considered by the Wind Siting Cou ncil when ch. PSC 128 was enacted. Furthermore, Wis. Stat. § 196 .378(4g)(e)No. 2013AP1407.pdr

9 requires periodic review of wind turbines' effects on health. 8 Because wind turbines have the potential to affect the health of those who live nearby, wind turbines also will affe ct the market for those properties because some buyers will rejec t the properties because they believe that wind turbines will have a negative effect on their health. See, e.g., Nina P ierpont, Wind Turbine Syndrome: A Report on a Natural Experiment (2009) (available at http://www.windturbinesyndrome.com). ¶133 The legislature recognized that health effects associated with wind turbines may be connected to t he distance between wind turbines and housing when it required that setbacks provide "reasonable protection from any health effe cts." Wis. Stat. § 196.378(4g)(b). As health effects caused b y wind turbines also affect the real estate market, the le gislature required the Commission to obtain a housing report while it was in the process of promulgating Wis. Admin. Code ch. PSC 128. Wisconsin Stat. § 227.115 specified the findings th at the Department was required to make in assessing a prop osed rule's effect on housing. Section 227.115(3) provides:

(a) The report of the department shall contain information about the effect of the proposed rule o n housing in this state, including information on the effect of the proposed rule on all of the following :

8 The Wind Siting Council is required to "survey the peerreviewed scientific research regarding the health i mpacts of wind energy systems." Wis. Stat. § 196.378(4g)(e); see Wisconsin Wind Siting Council, Wind Turbine Siting- Health Review and Wind Siting Policy Update, 3-4, 14 (2014). The Wind Siting Council addressed health concerns, not housing conc erns.No. 2013AP1407.pdr

10 1. The policies, strategies and recommendations of the state housing strategy plan. 2. The cost of constructing, rehabilitating, improving or maintaining single family or multifami ly dwellings. 3. The purchase price of housing. 4. The cost and availability of financing to purchase or develop housing. 5. Housing costs, as defined in s. 560.9801(3)(a) and (b). (b) The report shall analyze the relative impact of the effects of the proposed rule on low– and moderate– income households. ¶134 The legislature required the Commission to req uest a housing report from the Department if a "proposed r ule directly or substantially affects the development, construct ion, cost, or availability of housing" in Wisconsin. Wis. Stat. § 227.115(2). Section 227.115(2) requires the Commission to do so before the proposed rule is forwarded to the legislative counc il staff under Wis. Stat. § 227.15. ¶135 Wisconsin Stat. § 227.115(2)'s phrase, "direct ly or substantially affects," is not defined in § 227.115 , nor has it been interpreted in prior cases. However, the phra se "directly affects" has been interpreted in other contexts. F or example, Sausen v. Town of Black Creek Bd. of Review, 2014 W I 9, ¶3, 352 Wis. 2d 576, 843 N.W.2d 39, concludes that an asses sor's classification of property "directly affects" the p roperty's assessment because of the classification's relation ship to statutory percentages of assessment. State v. Long , 2009 WI 36, ¶51, 317 Wis. 2d 92, 765 N.W.2d 557, explains that proof of aNo. 2013AP1407.pdr

11 prior conviction "directly affects" a liberty inter est because such proof is relevant to the term of incarceration to which a defendant may be subjected. City of Appleton v. To wn of Menasha, 142 Wis. 2d 870, 879, 419 N.W.2d 249 (1988 ), concludes that any illegal expenditure of public funds "direc tly affects" taxpayers because taxpayers suffer a pecuniary loss as a result. ¶136 In each decision, "directly affects" has been defined by a nexus between an act and the interest of a per son that is influenced by the act. Accordingly, I conclude tha t the plain meaning of "directly affects" in Wis. Stat. § 227.1 15(2) includes an act that has a nexus to housing. That is, in order for a proposed rule to "directly affect" housing, t here must be a nexus between the proposed rule and housing. ¶137 As I have explained, Wis. Admin. Code ch. PSC 128 has a nexus to housing due to the setbacks of § PSC 128 .13, the decibel noise levels of § PSC 128.14 and the minimi zation of shadow flicker in § PSC 128.15, all of which regula te wind turbines' effects on nearby housing. Stated otherw ise, the plain meaning of "directly affects" in Wis. Stat. § 227.115(2) includes those proposed rules that regulate wind tu rbine setbacks, noise levels and shadow flicker. ¶138 These obvious nexuses are the core of Wisconsi n Realtors' contention from which it concluded that a housingNo. 2013AP1407.pdr

12 report was required by Wis. Stat. § 227.115(2). 9 Stated otherwise, it is the position of Wisconsin Realtors that § 227.115(2) does not require that a rule have a ne gative effect on housing before a housing report is required by § 227.115(2). 10 Rather, the legislative threshold for requiring a h ousing report under § 227.115(2) is triggered whenever housing is "directly affected" by the terms of a proposed rule. I agree with Wisconsin Realtors. The statute says nothing about obtaining a housing report only when a rule negatively or inade quately affects housing. ¶139 Furthermore, Wis. Stat. § 196.378(4g)(b) and W is. Stat. § 227.115(2) must be read together because th ey bear on the same subject matter, proposed administrative ru les. McDonough, 227 Wis. 2d at 279. When we do so, the nexus between the health effects of wind turbines and housing bec omes apparent. ¶140 Wisconsin Admin. Code §§ PSC 128.13, 128.14 an d 128.15 directly affect noise levels and shadow flicker to which housing is subjected by the operation of wind turbines. It follows then as a matter of course that the effect of wind turbi nes on

9 The majority opinion repeatedly misstates Wisconsi n Realtors' position. See majority op., e.g., ¶¶69-7 6. In so doing, the majority opinion sets up straw men that it can knock down. However, more importantly, this device permi ts the majority opinion to escape addressing Wisconsin Rea ltors' actual argument about why Wis. Admin. Code ch. PSC 128 dir ectly affects housing.

10 If there was ever any doubt, Wisconsin Realtors' p osition in this regard was clearly stated at oral argument under questioning by the court.No. 2013AP1407.pdr

13 housing is central to carrying out the plain meanin g of § 196.378(4g)(b), which required the Commission to draft rules that addressed wind turbines' effects on health. S tated otherwise, housing is central to the Commission's c ompliance with § 196.378(4g)(b) because it is due to living i n nearby housing that the health of Wisconsin residents is m ost affected by wind turbines. Therefore, if the Commission's r ules did not directly affect housing, those rules would have a l imited impact on health, contrary to the enabling legislation for ch. PSC 128. ¶141 Both the court of appeals and the majority opi nion misunderstand Wisconsin Realtors' argument. For ex ample, the court of appeals said, To demonstrate that a housing impact report was required, [Wisconsin Realtors] must show that the setback, noise, and shadow flicker restrictions imposed by PSC 128 are so inadequate that the rules will directly or substantially affect the developme nt, construction, cost, or availability of housing in Wisconsin. Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., N o. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App . March 25, 2014). ¶142 However, no showing of inadequacy is required of Wisconsin Realtors under Wis. Stat. § 227.115(2) in order to demonstrate that Wis. Admin. Code ch. PSC 128 direc tly affects housing. The plain meaning of the words that the l egislature chose for Wis. Stat. § 227.115(2) does not require that the rules the Commission proposed be "inadequate" in or der for those rules to directly affect housing. All that is requ ired is aNo. 2013AP1407.pdr

14 nexus between the proposed rules and their effect o n housing. It is beyond dispute that ch. PSC 128 has such a ne xus. ¶143 Once that threshold is met, a housing report i s required. It is the task of the Department, as it prepares the housing report, to assess whether the administrativ e rules were adequate or inadequate to protect housing. The Dep artment's assessment and report was to be done during the rul e-making process. Stated otherwise, the legislature gave th e Department the task of assessing whether proposed rules are ad equate to protect the housing of people who reside near wind turbines. 11 The legislature did not give that task to persons w hose health and property values are impacted by the proposed ru le. That was a burden for government to shoulder, which the cour t of appeals 12 and the majority opinion 13 have mistakenly placed on those Wisconsin residents who live near wind turbines.

11 See supra note 2.

12 That the court of appeals added words to Wis. Stat

. § 227.115(2) and thereby constructed a standard con trary to what the legislature mandated is confirmed by the court' s conclusion that "[w]ithout presenting evidence that the restri ctions imposed by PSC 128 are insufficient, [Wisconsin Rea ltors] cannot rebut the presumption that no housing impact report was required." Wis. Realtors Ass'n v. Pub. Serv. Comm' n of Wis., No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25, 2014).

13 See majority op., ¶7.No. 2013AP1407.pdr

15 2. Presumption ¶144 The majority opinion also concludes that if al l else fails, Wis. Admin. Code ch. PSC 128 is saved by the presumption of Wis. Stat. § 227.20(3), which provides in releva nt part:

(3) Filing a certified copy of a rule with the legislative reference bureau creates a presumption of all of the following:

. . . . (c) That all of the rule-making procedures required by this chapter were complied with. ¶145 I take judicial notice that a certified copy o f Wis. Admin. Code ch. PSC 128 was filed with the Legislat ive Reference Bureau. However, because §§ PSC 128.13, 128.14 and 128.15 directly affect housing, a Wis. Stat. § 227.115(2) housing report was required. All agree that the Commission did not request the Department to prepare a housing report, and the Department provided no such report. Because the Co mmission was required to request a housing report and did not do so, the presumption of Wis. Stat. § 227.20(3)(c) has been r ebutted. ¶146 Furthermore, if governmental agencies could ig nore legislative directives simply by filing a certified copy of a proposed rule with the Legislative Reference Bureau , there would be a great temptation for busy agency employees not to bother with fully complying with legislative directives du ring rulemaking. Accordingly, the presumption of Wis. Stat. § 227.20(3)(c) cannot save the Commission's rules t hat were enacted with disregard for the express directives o f the Legislature. See Dane Cnty. v. DHSS, 79 Wis. 2d 32 3, 331-32,No. 2013AP1407.pdr

16 255 N.W.2d 539 (1977) (concluding that Dane County could challenge the manner in which the Department of Hea lth and Social Services had promulgated its rule). C. Remedy ¶147 I have concluded that the plain meaning of Wis . Stat. § 227.115(2) required the Commission, as a matter o f law, to obtain a housing report from the Department when it promulgated Wis. Admin. Code ch. PSC 128; that it failed to do so and that its failure is not saved by Wis. Stat. § 227.20(3)( c). The question now becomes, what is the remedy for the Co mmission's failure. ¶148 Wisconsin Realtors began this declaratory judg ment action pursuant to Wis. Stat. § 227.40. Therefore, I look to that section's provisions for guidance. Wisconsin Stat. § 227.40(4)(a) states:

In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures. It is under the last provision: the rule "was prom ulgated without compliance with statutory rule-making proce dures," on which Wisconsin Realtors' claim lies. ¶149 Courts have reviewed other rules that have bee n promulgated without compliance with rule-making pro cedures and have held such rules invalid. For example, in Chol vin v. DHFS, 2008 WI App 127, ¶¶32-34, 313 Wis. 2d 749, 758 N.W. 2d 118, the court of appeals held a directive that the Departme nt of HealthNo. 2013AP1407.pdr

17 and Family Services had given to Susan Cholvin was invalid because the Department did not employ statutorily r equired rulemaking to promulgate the directive. See also Herit age Credit Union v. Office of Credit Unions, 2001 WI App 213, ¶24, 247 Wis. 2d 589, 634 N.W.2d 593 (explaining that failur e to comply with rule-making procedures is one ground for decla ring a rule invalid). ¶150 The Commission did not comply with Wis. Stat. § 227.115(2), and as a matter of law, it was requir ed to do so. The plain meaning of Wis. Stat. § 227.40(4)(a) prov ides the remedy: "the court shall declare the rule invalid. " Accordingly, I follow that directive and conclude t hat ch. PSC 128 is invalid.

III. CONCLUSION ¶151 I conclude that the Commission was obligated, as a matter of law, to obtain a Wis. Stat. § 227.115(2) housing report because Wis. Admin. Code ch. PSC 128 directl y affects housing. The Commission failed to obtain a § 227.1 15(2) housing report; therefore, ch. PSC 128 is invalid. Wis. St at. § 227.40(4)(a). Accordingly, I respectfully dissen t from the majority opinion. ¶152 I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.No. 2013AP1407.pdr

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