An Expanded Water Law and Policy Initiative

Posted on Categories Environmental Law, Marquette Law School, Public, Water Law

We frequently say that Marquette Law School hopes to be a place of which the community remarks,“That’s where you take the hard problems, the ones that affect us all.” As we observe the course of events in California and other parts of the world, it seems difficult to imagine a problem more intractable or more universal—a problem harder—than ensuring the availability of fresh water for domestic, medical, agricultural, and industrial uses. Indeed, Pope Francis recently cautioned in an encyclical that water, which is “indispensable for human life,” is “a fundamental right,” and he called for all interested parties to engage in “an open and respectful dialogue” about relevant policies and laws. Closer to home, with Associate Dean Matt Parlow’s leadership, the Law School has been actively engaged in the Milwaukee regional water initiative since its creation last decade; more recently, the Law School has sought to respond to President Michael R. Lovell’s call for greater engagement by Marquette University with matters involving water.

In these circumstances, it is a great pleasure to announce an expanded Water Law and Policy Initiative which will seek to help establish the Law School and, more broadly, Marquette University as a center for study, exploration, discussion, and education concerning water issues. Using an interdisciplinary and collaborative approach, the initiative will seek, among other things, to assess the legal and regulatory aspects of water policy, to pursue opportunities for information exchange and collaboration within and outside the University, and to provide the means for those involved in Milwaukee’s water initiative to become better informed on legal and policy aspects of critical water-related issues.image001

I am also pleased to announce the appointment of David Strifling as the Initiative’s inaugural director. Dave is a Marquette lawyer (L’04) and Marquette engineer (L’00) with a Harvard master’s. He has served as an adjunct professor here for several years, practiced at Quarles & Brady, and previously taught at Temple University’s Beasley School of Law in Philadelphia. He has extensive practical experience in both environmental law and environmental engineering and holds active licenses in both disciplines, making him almost uniquely qualified to move this project forward in an interdisciplinary way; further background about Dave is available here. We are able to pursue this initiative because of support from the University’s Strategic Innovation Fund and from the Law School’s Annual Fund. Welcome, Dave.

Author: Joseph D. Kearney

On July 1, 2003, Joseph D. Kearney became the ninth dean of Marquette University Law School. Dean Kearney has been a member of the Marquette faculty since 1997. Prior to coming to Marquette Law School, Dean Kearney practiced for six years at Sidley & Austin, Chicago's largest law firm. He served as well as a law clerk to the Honorable Antonin Scalia, Justice of the United States Supreme Court, and to the Honorable Diarmuid F. O'Scannlain of the United States Court of Appeals for the Ninth Circuit. Dean Kearney is an accomplished teacher, scholar, and lawyer. His teaching focuses on civil litigation, including courses in Civil Procedure and Advanced Civil Procedure. His scholarly articles have appeared in the Columbia Law Review, University of Chicago Law Review, University of Pennsylvania Law Review, Hastings Law Journal, and Marquette Law Review, among other journals. They variously focus on regulation of industry (particularly telecommunications), civil litigation, and judicial selection. His background as a practitioner is in appellate and telecommunications litigation, and he has argued cases before the Wisconsin and Illinois Supreme Courts and the United States Court of Appeals for the Seventh Circuit and has been the primary draftsman of winning briefs on the merits in the United States Supreme Court. Dean Kearney is an honors graduate of Yale College and Harvard Law School.

One thought on “An Expanded Water Law and Policy Initiative”

  1. I WONDER WHO REGULATES THE REGULATORS OF WATER: What effect will the refusal to transition to renewable energy have on water quality and what steps can Wisconsinites take to protect our water?

    Why are Wisconsinites stuck with coal-fired electric utilities, bad drinking water and no plans for mitigation of chromium-6 pollution of drinking water or stricter laws protecting our water?

    These are some factors to consider:
    1. W-E-C Energy is an energy company that includes the former WE energies in Wisconsin. Following a recent merger, WE energies became part of the new multi-state, diversified electricity and natural gas provider network headquartered in Wisconsin but having a corporate reach extending into Michigan, Minnesota and Illinois. This mega-utility relies heavily on coal to generate electricity in Wisconsin and has also invested in costly electricity transmission projects in the state.

    2. Wisconsin legislators have been caught on the receiving end of financial pressure from David and Charles Koch. (Among other assets owned by these billionaire brothers are coal-powered utilities and gas pipelines in Wisconsin.) The Koch brothers have endeavored, through substantial financial contributions, to direct state utilities to focus on fossil fuels for electricity generation. Besides extensive financial contributions they also coordinate the drafting of legislation, enabling them to effectively gain control of the direction of politics in Wisconsin, Michigan, Illinois and other midwestern states.

    3. Contamination of water by the chemical hexavalent chromium (present in coal ash) is an unaddressed problem in most states.

    4. A major factor contributing to deteriorating water quality is EPA’s failure to establish national limits on the allowable level of hexavalent chromium in drinking water. Chromium-6, as it is also called, is a chemical pollutant present in coal ash and other industrial waste.

    5. Chromium-6 is a carcinogen. (It was used by PG&E to fight corrosion in cooling towers in Hinkley, California. Waste water from those cooling towers was dumped into unlined storage ponds and the movement of this waste water through the soil over time created a plume of chromium-6 that continues to spread through the water table in Hinkley to this day.)

    A judgment in favor of the citizen appellants and against PG&E mandated that the utility pay a fine and also clean up the contamination; twenty-one years later remediation has proven to be impossible.

    Chromium 6 contamination of drinking water:

    http://www.ewg.org/research/chromium6-in-tap-water/executive-summary

    http://switchboard.nrdc.org/blogs/gsolomon/hexavalent_chromium_in_drinkin.html

    http://earthjustice.org/sites/default/files/CoalAshChromeReport.pdf

    6. W-E-C Energy recently demanded that the state of Wisconsin prevent competitor Alliant Energy from building its proposed gas and solar utility in the town of Beloit because W-E-C Energy had a surplus of (coal-generated) electricity to sell:

    http://www.jsonline.com/business/we-energies-asks-state-to-block-other-utilities-from-building-new-electric-plants-b99547763z1-320987961.html?page=1

    7. MARC (Middle-America Regulatory Commissioners, Middle-America Regulatory Conference) is a club that has been meeting since 1956. Although seldom heard of, MARC purports to invite regulators and the public to get together to discuss “energy regulation policy” in fourteen mid-American states.

    Here is what Hon. Arthur L. Padrutt of Wisconsin had to say about utility regulators in 1973:

    “One would seek in vain throughout the entire world for [utility regulation’s] counterpart. We should be mindful of the tremendous economic power which is reposed in this small band of citizens, power which profoundly affects the well-being of every man, woman and child in this nation….”

    (Padrutt was addressing the national convention of utility regulators in Seattle; see p. 63: Marc-conference.org/docs/history.pdf .)

    I wonder: does the CUB qualify in any real sense as citizen participation in the regulation of public utilities? In other words, with whom today resides the “tremendous economic power” of utility regulators that Padrutt described?

    In how many ways do fossil fuel-based utilities and utility regulators “profoundly affect the well-being of every man, woman and child in this nation” (again, in Padrutt’s words) — both positively and negatively?

    Ultimately, the utilities’ continued profit-making cannot benefit Wisconsinites if our water is polluted.

    Most Wisconsinites prefer greater use of renewable energy. If the utilities themselves impose barriers to renewable energy, who really ever benefits?

    http://www.4-traders.com/ALLIANT-ENERGY-CORPORATIO-13413/news/State-regulators-allow-rival-to-challenge-Alliant-power-plant-20825189/

    How can repeated threats of rate increases — or rate increases actually imposed on utility customers who integrate solar power into their electrical system — possibly be construed as proof that those fossil-fuel-based utilities’ customers will benefit from lower rates in the future?

    8. Fossil fuels are not economically sustainable. Our neighbors-to-the-north are facing a recession caused in part by investment in the very large and very costly resource extraction projects known as the Alberta tar sands, coupled with a continued descent in the price of oil.

    “Today in Energy” (below) reports that coal miners are losing their jobs as coal becomes unprofitable (as well as being environmentally self-destructive). Corporate shareholders worry about stock prices as mergers, acquisitions and bankruptcies proceed:

    http://www.eia.gov/todayinenergy/detail.cfm?id=13211

    How will this restructuring among multinational coal companies affect the price Wisconsin consumers will pay for coal-based electricity, especially considering the incalculable price we will pay if our drinking water is permanently poisoned?

    http://seekingalpha.com/article/3407936-alpha-natural-resources-files-for-chapter-11-what-now

    http://www.nytimes.com/2015/08/07/business/energy-environment/coal-industry-wobbles-as-market-forces-slug-away.html?&moduleDetail=section-news-1&action=click&contentCollection=Energy%20%26%20Environment%20&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

    9. W-E-C Energy should be directed to support the work of scientists studying whether hexavalent chromium can be effectively removed from polluted water. Note: Madison, Wisconsin’s water samples tested fourth highest in a 2011 national survey of hexavalent chromium levels in 31 cities’ drinking water.

    Why is the level of hexavalent chromium in Madison so high?

    (Compared with California’s proposed “safe” level of 0.06 ppb, the survey showed a level of 1.58 ppb in Madison’s water.)

    This year the Wisconsin state budget committee recommended that Dane County should no longer be involved in protecting the quality of its own drinking water. Why?

    http://host.madison.com/news/local/govt-and-politics/state-budget-committee-votes-to-keep-dane-county-out-of/article_01bb86c7-68de-5420-b9c2-d0eaadf992a3.html?mode=comments

    Sadly, “EPA has yet to set a legal national limit [for chromium-6] and doesn’t require utilities to test for it.”

    http://www.huffingtonpost.com/2010/12/20/hexavalent-chromium-erin-_n_799310.html

    Additional cites re: dirty power/political pollution in Wisconsin:

    http://www.sourcewatch.org/index.php/Wisconsin_and_coal#Koch_Industries.2C_Scott_Walker.2C_and_the_state.27s_power_plants

    Below are two links regarding the unsuccessful mediation of carcinogenic chemical pollution from an obsolete (though still polluting) public utility on the windy shore of Lake Superior’s Chequamegon Bay. This former coal-gas plant is now owned by Xcel:

    http://www.northlandsnewscenter.com/news/nw-wisconsin/-Progress-of-Ashland-Superfund-Site-clean-up-320536012.html

    http://www.wdio.com/article/stories/s3557812.shtml

    — and finally, twenty-one years after judgment against PG&E in a successful citizen lawsuit, remediation isn’t finished — but the town is:

    http://www.dailymail.co.uk/news/article-3003069/Brockovich-town-lose-market-gas-station-post-office.html

    * * * * *
    Note: Milwaukee’s water showed 0.18 ppb of hexavalent chromium (a measurement taken after water treatment, I believe).

    An article defending Milwaukee’s water quality was published in the Milwaukee Journal-Sentinel in January 2011:

    http://www.jsonline.com/news/milwaukee/113101749.html
    __________________________________________________
    I would like to request a follow-up interview with these three Marquette leaders regarding the issues I have raised:
    President Michael R. Lovell, Associate Dean Matt Parlow and
    Attorney David Strifling, director of the Water Law and Policy Initiative

    to discuss their leadership role in envisioning the water intiative’s focus and hear how these issues relate to the focus of the water intiative.
    Their “call for a greater engagement by Marquette University with matters involving water,” is inspiring and important to me, an alumna, and should be of interest to every Wisconsinite.

    I would appreciate any response you can provide to my comment regarding the water initiative.
    Thank you.

    Mary Ellen (“La Mer”) Riehle

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