Club v. Wisconsin Department of Health & Social Services

LOUIS J. CECI, J.

(concurring in part and dissenting in part). I agree with the majority and the circuit court that the Milwaukee Brewers Baseball Club, et al., had standing to challenge the adequacy of the Final Environmental Impact Statement (FEIS). I also agree that the FEIS must be reconsidered by the department of health and social services (DHSS). I therefore concur in that part of the result reached by the majority. I disagree, however, with the majority's conclusion that the FEIS need not include a consideration of alternative prison sites. I therefore dissent from that part of the majority's holding which does not remand the alternate-site issue to the circuit court, but rather decides as a matter of law that the DHSS need not consider alternative prison sites. I would direct the circuit *77court to instruct the DHSS, before it rules on the adequacy of the FEIS, to consider alternative sites.

The FEIS at issue here did not consider alternative sites to the Menomonee Valley location, but rather limited itself "to the adequacy of the designated site and mitigation of adverse impacts. . . ." FEIS, sec. 9 at 9-1. The Wisconsin Environmental Policy Act (WEPA) states in part that every recommendation which would significantly affect the quality of the human environment must include a detailed statement on "[ajlternatives to the proposed action." Section l.ll(2)(c)3, Stats. The majority's conclusion that the FEIS need not include a consideration of alternative prison sites is directly contrary to this express requirement of WEPA. The legislature reaffirmed its commitment to WEPA in the prison-siting legislation. 1983 Wis.'Act 27, sec. 2020(32g)(b).

The majority holds that because the legislature specified the site for a new prison, it was reasonable for the DHSS not to consider sites other than the Meno-monee Valley. At pages 74-75. I disagree. The task of considering alternative sites does not become either a futile or an empty exercise merely because the legislature has specifically designated a site.

The purpose of an FEIS is to allow an agency to critically examine the environmental consequences of a particular action. Majority opinion at 72, quoting from Wis. Environmental Decade v. Public Service Comm., 98 Wis. 2d 682, 690, 298 N.W.2d 205 (Ct. App. 1980). The examination of environmental consequences of a particular action is not an absolute consideration, but a relative one. The environmental impact of a particular action at a specific site is at least partially discerned by considering the impact in relation to other sites, even if *78those other sites are not the object of specific legislative action. The identification of alternative sites would provide a more complete illumination and perspective of the environmental impact of the designated action on the specified site. Although an agency's obligation to consider alternatives in an FEIS may be "relatively narrow" when the legislature has specifically designated a project site,11 submit that the obligation is not entirely eliminated in such an instance. A specific site designation should not preclude a complete FEIS analysis under WEPA.

I also agree with the circuit court that the FEIS is inadequate because the FEIS failed to fully consider the irreversible and irretrievable commitments of resources arising as a result of the prison project, per sec. l.ll(2)(c)5, Stats. Accordingly, I respectfully dissent.