Since 2011 Wis. Act 21 significantly amended the administrative rulemaking process,¹ Wisconsin courts have considered the subject with increasing frequency. Most rulemaking cases analyze whether an agency action meets the statutory definition of a rule, but when rulemaking procedure does come up, it’s described as a rigorous “administrative gauntlet”² that is “filled with checks and double checks and public input and imposed waiting periods ….”³ Wisconsin Supreme Court Justice Brian Hagedorn even described the permanent rulemaking process as “about as smooth sailing as a canoe traversing the Atlantic Ocean.”⁴

While Wisconsin courts primarily focus on permanent administrative rules, the prevalence and awareness of emergency rules increased in response to the COVID-19 pandemic as state agencies sought to implement temporary policies to prevent or control the spread of the virus quickly. If permanent administrative rulemaking is akin to a one-way canoe trip across transatlantic waters, then emergency rulemaking is more comparable to traversing the same waters on a commercial ocean liner. The trip takes less time, but the vessel must return to its point of origin after its business has concluded. Emergency rules are therefore a valuable tool for state agencies seeking to implement policy expediently – albeit one that presents a handful of considerations that are distinct from permanent administrative rules.

Overview of Emergency Rule Promulgation Process

Emergency rules have existed in Wisconsin for nearly 70 years, and the current process for emergency rules contained in Wis. Stat. section 227.24 has existed since 1985. An agency may amend, repeal, or create emergency rules when preservation of the public peace, health, safety, or welfare necessitates putting a rule into effect without complying with the bulk of the permanent-rule promulgation steps under Wis. Stat. chapter 227. A rule promulgated in this fashion is effective for an initial period of 150 days and can be extended up to an additional 120 days.⁵

To start, an agency’s authority to promulgate a rule must be “expressly conferred or necessarily implied by the statutes under which it operates,”⁶ and the agency must commence rulemaking by drafting a statement of scope. The statement of scope must detail existing and proposed policies covered by the proposed rule, identify statutory authority to promulgate the rule, and list any entities that might be affected by the proposed rule. The statement of scope for an emergency rule must also identify the threat to public peace, health, safety, or welfare (hereinafter “finding of emergency”) that necessitates putting the emergency rule in effect on an expedited timeline.⁷ An emergency statement of scope may propose to promulgate a stand-alone emergency rule or both an emergency rule and a permanent rule.⁸

After the statement of scope is finalized, it must be approved by the governor, published in the Administrative Register, and approved by the individual or body with policy-making powers (hereinafter “policymaker”) before rulemaking can commence.⁹ If, within 10 days after publishing the scope, the Wisconsin Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) directs the agency to hold a preliminary public hearing on the statement of scope, a hearing must be held before the policymaker can approve it.¹⁰ An agency is prohibited from “performing any activity in connection with the drafting of a proposed rule, except an activity necessary to prepare the statement of scope,” until the governor and the policymaker approve the statement of scope.¹¹

Once the scope is approved, the agency drafts the emergency rule order and a “reliable estimate of the fiscal impact of the rule” on local governments, the private sector, and state funds.¹² The final draft emergency rule order must then be submitted to the governor for approval to publish it – which effectively allows an agency to bypass mandatory permanent-rule pre-promulgation requirements such as drafting an economic impact analysis, submitting the rule for Legislative Council review, noticing and holding a public hearing and comment period, and legislative review.¹³ If the governor issues written approval, then the agency may promulgate the emergency rule by publishing the entire emergency rule order in the official state newspaper, and the 150-day expiration clock begins running on that date.¹⁴

After the emergency rule is published, the agency must submit a certified copy of the emergency rule order and a fiscal estimate of the rule to the chief clerk of each house of the legislature and to the Legislative Reference Bureau within 10 days after the publication date.¹⁵ The fiscal estimate must also be submitted to each member of the legislature.¹⁶ A public hearing on a stand-alone emergency rule must occur within 45 days after the date it was published. A later hearing date is permitted for an emergency rule and corresponding permanent rule in certain circumstances.¹⁷

Legislative Oversight of Emergency Rules

Although the legislature does not review emergency rules before promulgation, there are several mechanisms for it to oversee emergency rulemaking.

First, the legislature can permit deviations from the general promulgation process described above through legislative enactments. Such deviations are most commonly found in an enactment’s nonstatutory provisions, which typically permit an agency to promulgate an emergency rule without a finding of emergency or allow the rule to remain in effect beyond the maximum 270 days permitted by statute.¹⁸ In a few instances, the legislature has permitted an agency to promulgate an emergency rule in response to a new enactment without drafting a statement of scope or submitting the rule to the governor for approval.¹⁹

Second, extensions beyond the 150-day effective period must be approved by the JCRAR. An agency must submit a written extension request to the JCRAR no later than 30 days before the rule expires, and the request must detail an ongoing finding of emergency and provide evidence that a permanent rule cannot be promulgated before the emergency rule expires.²⁰ Any number of extensions can be requested, but each individual request cannot exceed 60 days and the total period for all extensions cannot exceed 120 days.²¹ The JCRAR has discretion to approve or deny the extension request for all or part of any emergency rule.²²

Finally, the JCRAR holds public hearings on emergency rules for which it receives complaints that are deemed meritorious.²³ A majority of a quorum of the JCRAR can then vote to suspend all or part of an emergency rule if testimony at the hearing evinces one or more of the following: 1) an absence of statutory authority for the rule, 2) an emergency related to public health, 3) a failure to comply with legislative intent or a conflict with state law, 4) a change in circumstances since the enactment upon which the rule is based took effect, or 5) arbitrariness and capriciousness or imposition of an undue hardship.²⁴ If the JCRAR suspends all or part of an emergency rule, it must introduce a bill in each house to repeal the suspended rule, and an agency “may not submit to the legislature under s. 227.19 (2) the substance of the emergency rule as a proposed permanent rule during the time the emergency rule is suspended.”²⁵

The Prevalence of Emergency Rules and Contemporary Considerations

Over the past 15 years, 436 emergency rules were promulgated by more than 30 combined state agencies and occupational regulatory boards, meaning an average of 29 emergency rules were promulgated annually during that time.²⁶ Most of those emergency rules took effect and were administered without additional attention or scrutiny: only 4% of emergency rules promulgated in the past five years were suspended by the JCRAR.

General awareness of emergency rules peaked when the Wisconsin Supreme Court’s opinion in Wisconsin Legislature v. Palm²⁷ was issued on May 13, 2020. In Palm, a majority of the court invalidated an emergency order, issued by the then-Secretary of the Department of Health Services (DHS) in March 2020, that sought to slow the spread of COVID-19 by confining Wisconsinites to their homes, forbidding nonessential travel, closing most nonessential businesses, and imposing penalties of imprisonment or fines for noncompliance.²⁸ The majority opinion in Palm held that the emergency order met the statutory definition of a “rule” and was therefore invalid because it was not promulgated in accordance with statutory procedures for promulgating emergency rules.²⁹

Forty-eight emergency rules were promulgated in 2020, and 26 specifically established regulatory flexibilities in response to the COVID-19 pandemic. Of the 26 COVID-19-specific emergency rules published in 2020, 22 were initiated following the release of the Palm opinion. As the pandemic continued well beyond 2020, several unique considerations for emergency rules arose, namely: how quickly a rule can be promulgated during an emergency and how an agency can respond to an emergency that lasts longer than 270 days. Those considerations are explored below.

Minimum time to promulgate emergency rule. One issue touched on in briefing and oral argument in Palm was the number of days it would take to promulgate an emergency rule. Estimates by the parties ranged from 12 to 49 days. Those estimates were discussed in two dissenting opinions, but both opinions assumed, arguendo, that an emergency rule could be promulgated in as little as 12 days.³⁰

Emergency rule data from 2020 suggests that the longer end of the estimates hewed closest to reality. Of the 26 COVID-19-specific emergency rules that were promulgated that year, the average amount of time between the publication of the scope statement in the Administrative Register and the publication of the emergency rule in the state newspaper was 58 days. The median number of days was 34, and only three rules were promulgated in less than 20 days.

These numbers reflect that even though emergency rulemaking has fewer “checks and double checks”³¹ than permanent rules, there are still steps that must be taken to successfully create an emergency rule. Because of these requirements, what initially seems like a matter of days for emergency rule promulgation can quickly evolve into a matter of weeks.

The process of drafting a scope statement, submitting it to the governor, receiving approval from the governor, publishing the scope in the Administrative Register, and waiting 10 days following publication before the policymaker approves it would likely take 12 days in and of itself. If, following publication, the JCRAR directs the agency to hold a preliminary public hearing, that hearing must also be noticed in the Administrative Register at least three days before the date of the hearing.³² The Administrative Register is published once per week, so this additional step can add at least a week to the pre-drafting part of the emergency rulemaking process. Notably, employees of the regulating agency cannot draft proposed rules until the policymaker approves the statement of scope,³³ so it is not possible to shave time off the rule-development phase while waiting for the scope to be approved.

Internal reviews are an additional check that add time to the emergency rulemaking process. While the policymaker in many state agencies is the appointed secretary, some agencies require approval from a policy-making board before a rule can advance to the next stage of rulemaking. For example, rules developed by the Wisconsin Department of Natural Resources are subject to review and approval by the Natural Resources Board (NRB) before publication or submission to the governor or the legislature. The NRB is a governmental body subject to Wisconsin’s open meetings law, meaning any action it takes must be noticed and occur in open session in accordance with the open meetings law.³⁴ A minimum of 24 hours’ notice is required under the open meetings law,³⁵ so scheduling, noticing, and holding a meeting for policymaker approval in these circumstances can further delay advancing an emergency rule to the next step in the process.

Responding to emergency that lasts longer than Wis. Stat. § 227.24(1)(c) and (2)(a) limits. Regulatory agencies were challenged by the duration of the COVID-19 pandemic and the surges and declines in COVID-19 cases. These factors made it difficult to determine which actions were best suited to respond to that public health emergency.

At the outset of the pandemic, most agencies chose to pursue stand-alone emergency rules to respond to the initial outbreak. Those agencies were then faced with a challenge when the initial emergency rules expired, new variants of the virus caused a surge in cases in the last quarter of 2021, and similar emergency rules were again necessary.

Section 227.24 of the Wisconsin Statutes is silent as to whether an agency can “refile” an emergency rule, but a Wisconsin attorney general opinion issued in 1973 concluded that doing so was contrary to the legislative intent of the statute.³⁶ In at least one recent instance, the JCRAR suspended a successive emergency rule that sought to waive certain requirements for unemployment insurance claimants to limit exposure to COVID-19 and provide relief for individuals who missed work because of exposure to the virus. The suspension was, in part, based on the successive emergency rule “duplicat[ing] certain effects of [the original] Emergency Rule … in violation of the maximum duration … specified under [Wis. Stat. §] 227.24 ….”³⁷

While the 1973 attorney general opinion is arguably of lower persuasive value because it was based on an older version of the statute in which permanent rule promulgation was less involved and took significantly less time,³⁸ a court has not weighed in on that argument. Moreover, the Wisconsin Supreme Court’s opinion in Fabick v. Evers – which held that durational limits for emergency declarations by the governor under Wis. Stat. section 323.10 could not be circumvented by declaring a new emergency based on “a new set of on-the-ground facts” related to an ongoing public health emergency³⁹ – suggests that such an argument might not be successful.

Two potential alternative paths to successive emergency rules might be to 1) work with the legislature to draft an enactment permitting an emergency rule that exceeds the durational limits in Wis. Stat. section 227.24, or 2) draft a statement of scope for both an emergency rule and a permanent rule and include provisions in the permanent rule that “sunset” when the emergency necessitating the rule ends. Either course of action would be highly specific to the unique facts of a particular emergency, and the second option would require careful planning to avoid a gap between the expiration of the emergency rule and the effective date of the permanent rule.

Conclusion

Emergency rules have existed for many decades without much public fanfare or outcry, but the social and economic disruptions created by the COVID-19 pandemic brought emergency rules into greater light. While emergency rules are valuable because they allow an agency to implement policies much faster than going through the lengthier permanent rulemaking process, the limits on the duration of the rule and the distinct, truncated nature of the process require careful planning and consideration.

Endnotes

1 For a summary of these changes, seeRonald Sklansky, Changing the Rules on Rulemaking, Wis. Law., Aug. 2011, at 10.

2 WisconsinRight to Life Inc. v. Barland, 751 F.3d 806, 835 (7th Cir. 2014).

3 WisconsinLegislature v. Palm, 2020 WI 42, ¶ 228, 396 Wis. 2d 43, 942 N.W.2d 900 (Hagedorn, J., dissenting).

4 Id.

5 Wis. Stat. § 227.24(1)(c), (2)(a).

6 WisconsinAss’n of State Prosecutors v. Wisconsin Emp. Rels. Comm’n, 2018 WI 17, ¶ 37, 380 Wis. 2d 1, 907 N.W.2d 425.

7 Wis. Stat. § 227.24(1)(a), (e)1d.

8 See, for example, Statement of Scope SS 076-22, relating to changing the minimum age for anatomical gift designations in Wis. Admin. Code chapter DHS 137, https://docs.legis.wisconsin.gov/code/register/2022/801a2/register/ss/ss_076_22/ss_076_22.pdf. After the scope was published and approved in accordance with Wis. Stat. section 227.235(2), Emergency Rule EmR2312 took effect on Aug. 21, 2023, and its effective date was extended by the JCRAR until March 17, 2024. The corresponding permanent rule, CR 23-036, was submitted for legislative review under Wis. Stat. section 227.19 on Dec. 6, 2023.

9 Wis. Stat. § 227.135(2).

10 Wis. Stat. §§ 227.135(2), 227.136.

11 Wis. Stat. § 227.135(2).

12 Wis. Stat. §§ 227.14(4)(a), 227.24(1)(e)1m., 2.

13 See Wis. Stat. §§ 227.24(1)(a), (e), (3), 227.137(5).

14 Wis. Stat. § 227.24(1)(c), (e)1g.

15 Wis. Stat. § 227.24(1)(e)1g., 2., (3).

16 Wis. Stat. § 227.24(1)(e)2.

17 Wis. Stat. § 227.24(4).

18 See, e.g., 2021 Wis. Act 42 § 92 (permitting the Department of Children and Families to promulgate emergency rules relating to qualified residential treatment facilities for children and youth without providing evidence of threat to public peace, health, safety, or welfare, and allowing emergency rules promulgated to remain in effect until July 1, 2023, or the date on which permanent rules take effect, whichever is sooner).

19 See, e.g.,2013 Wis. Act 76, § 59(2); 2017 Wis. Act 100, § 15(2).

20 Wis. Stat. § 227.24(2)(am).

21 Wis. Stat. § 227.24(2)(a).

22 Wis. Stat. § 227.24(2)(c).

23 Wis. Stat. § 227.26(2)(c).

24 Wis. Stat. § 227.26(2)(d).

25 Wis. Stat. § 227.26(2)(f), (L).

26 Data on published emergency rules is available on the Wisconsin Legislature’s website and goes back to 2008. This data is available at https://docs.legis.wisconsin.gov/code/emergency_rules/all (last visited March 14, 2024). For the purposes of this article, partial year data for 2024 was excluded, meaning the calculations incorporated data from 2009 to 2023.

27 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900.

28 Id. ¶ 42 (majority opinion).

29 Id. ¶ 58 (majority opinion).

30 See id. ¶ 151 (Dallet, J., dissenting), ¶ 230 (Hagedorn, J., dissenting).

31 Palm, 2020 WI 42, 396 Wis. 2d 43.

32 Wis. Stat. § 227.136(2), (3).

33 Wis. Stat. § 227.135(2).

34 See Wis. Stat. §§ 15.34(2), 19.82(1).

35 Wis. Stat. §§ 19.83(1), 19.84(1)-(3).

36 62 Op. Wis. Att’y Gen. 305 (Dec. 19, 1973). See Wis. Dep’t of Just., AG Opinion Archive, https://www.doj.state.wi.us/dls/ag-opinion-archive (click on “1971 - 1980”; then click on “1973”) (last visited March 15, 2024).

37 Wis. Admin. Reg No 785B (May 24, 2021), https://tinyurl.com/2unr67mr.

38 Under Wis. Stat. section 227.02 (1973), agencies were only required to “precede all rulemaking with notice of public hearing in the administrative register at least 10 days before the scheduled date for a hearing.” After the hearing, the agency published the rule in the form prescribed by statute, and it took effect the first day of the month following publication. Wis. Stat. §§ 227.024 (1973), 227.025 (1973), 227.026 (1973).

39 2021 WI 28, ¶¶ 37-40, 396 Wis. 2d 231, 956 N.W.2d 856.