When a coalition of environmental advocacy groups challenged the state of Wisconsin’s approval under the Great Lakes Compact of an out-of-basin water diversion to supply the Foxconn project, it came as no surprise to Peter Annin. “It’s not unexpected at all that there would eventually be legal challenges over the Great Lakes Compact,” Annin, the well-known Great Lakes journalist and author, said during an appearance last October at the Law School’s Lubar Center. Like any other legal text, the Compact includes ambiguous terminology. For example, the Foxconn challenge centered on whether the application satisfied the Compact’s requirement that any out-of-basin diversion be for “public water supply purposes.” Annin predicted that the Compact’s meaning will be “refined” during such litigation, much as has happened with other important environmental laws such as the Clean Water Act or Clean Air Act.
The Foxconn challenge made history as the first state-level legal challenge based on the Great Lakes Compact; an earlier objection to the Waukesha approval was heard by the Compact Council itself. The Foxconn case never made it all the way to court, however; it ended with an administrative ruling by Wisconsin Administrative Law Judge Brian K. Hayes upholding the diversion approval. The plaintiffs decided not to appeal the decision. As I explained in a previous post, the context of the “public water supply purposes” language admitted of two possible interpretations: that the proposed diversion would be used for “public water supply purposes,” or that the system requesting the diversion, taken as a whole, served “public water supply purposes.” ALJ Hayes adopted the latter, vindicating the position of the Wisconsin Department of Natural Resources. That decision—predicated on a textual analysis of the statute—is the primary takeaway from the case, and certainly important in its own right.
But other features of ALJ Hayes’ decision have been overlooked, and provide important clues about how future courts will interpret the Compact. Continue reading “How Might Courts Interpret the Great Lakes Compact?”
Wisconsin is blessed with an abundance of water resources: 15,000 lakes, 43,000 river miles, 659 miles of frontage on two of the Great Lakes, and groundwater supplies sufficient to cover the whole state to a depth of 100 feet, just to name a few. But Wisconsin has its share of water problems, too, including many lead water service laterals, widespread well contamination, and battles over diversions from the Great Lakes.
Thus it came as a pleasant surprise to see state political leaders from both sides of the aisle prioritizing the importance of a clean, safe, abundant water supply for all Wisconsinites. First, Assembly Speaker Robin Vos announced the creation of a water quality task force to study water contamination issues. Then, in his January “State of the State” address, Governor Tony Evers declared 2019 the “Year of Clean Drinking Water in Wisconsin.” Governor Evers specifically mentioned widespread contamination in private wells and large numbers of lead service laterals among his priorities.
Last week I conducted an informal Twitter survey to learn what Wisconsin citizens believe that our political leaders should prioritize as part of these efforts. The response was overwhelming. In no particular order, here is a shorthand “top ten” list of issues for the administration and the task force to consider:
Continue reading “2019: The Year of Clean Drinking Water in Wisconsin”
It might come as a surprise to learn that federal law does not require public or private schools to test their drinking water sources for lead or for any other contaminant. Instead, the Safe Drinking Water Act operates by regulating the “public water systems” that deliver water to the schools. Too often, this broad focus on public systems overlooks the potential contamination sources on private (or school) property, such as lead service lines and indoor lead plumbing “fittings”—valves, bends, and the like. This gap in federal law presents an important opportunity for state intervention.
Indeed, the loophole has already led to some disturbing results. In Detroit, for example, officials found unsafe lead and copper levels at 57 of 86 schools tested. Testing in Vermont recently revealed lead contamination in over a dozen schools. And here in Milwaukee, testing showed high lead levels at 183 of Milwaukee Public School’s 3,000 drinking fountains, and at 28 of 425 water outlets tested at charter schools. Worse yet, a recent federal report shows that more than half of public school districts don’t test their water for lead at the point of delivery. Those that did test often found elevated levels of lead, as illustrated in the report’s summary figure:
Continue reading “Minimizing the Risk of Lead Intake at Schools”
Enacting the Great Lakes Compact was a remarkable achievement that likely wouldn’t be possible in today’s political climate; it is a bipartisan, multi-jurisdictional agreement that will benefit future generations and was adopted in the absence of a crisis. Yet its ultimate success or failure remains to be determined, as questions persist about its staying power and about our commitment to its consistent application. Those two conclusions were broadly shared by presenters and attendees at a conference held earlier this month at the Law School’s Lubar Center. The Law School’s Water Law and Policy Initiative organized the event to commemorate the tenth anniversary of the Compact’s signature into law by President George W. Bush, and to evaluate its success since then.
Former Wisconsin governor Jim Doyle opened the conference by reflecting on his work as one of the Compact’s architects. Doyle acknowledged the Compact’s primary feature, a general ban on diversions of water outside the basin, and also highlighted lesser known provisions resulting in the creation of a framework for employing sound science in the joint management of the Lakes. He struck a note of caution, however, predicting that thirsty regions across the country are still focused on the Great Lakes as a potential water source, and at some point “people will go to Congress and say we have to get rid of [the Compact].” The Compact will not be fully tested, Doyle suggested, until water shortages strike broad swaths of the country, including areas outside the Great Lakes basin but within the Great Lakes states. The basin line bisects Wisconsin. Would a future Wisconsin governor remain committed to the Compact even if severe water shortages struck Madison or other Wisconsin communities just outside the Basin? Doyle urged audience members to ask all candidates for public office about their commitment to the Lakes and the Compact. Continue reading “The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress”
In hydrologic terms, a “gaining stream” is a surface stream augmented by groundwater flow. In a more conventional sense of the term, legal and policy disputes surrounding groundwater are also “gaining” in importance, though localized groundwater-related issues have perplexed the courts for generations. In a 1903 opinion, at the end of a lengthy discourse summarizing various authorities on the subject of groundwater withdrawals, Justice John B. Winslow of the Wisconsin Supreme Court admitted that “[p]erhaps more time has been spent in reviewing these decisions than is profitable, but the subject is interesting, and . . . should be given serious consideration.” Winslow’s comments came during the latter part of a long period of judicial unfamiliarity with the science of groundwater. Nineteenth century jurists characterized its movement and sometimes its very existence as “unknown” or even “occult.”
About two-thirds of Wisconsinites draw their drinking water from the ground. Still, both in this state and elsewhere, groundwater lacks the intuitive familiarity of surface water. Perhaps as a result, many states still don’t have well-developed jurisprudence or legal management systems for groundwater even though hydrogeology has become a well-developed and well-accepted science. Judicially-created groundwater doctrines vary widely from state to state. This legal dissonance is of increasing concern in light of a surge of groundwater problems and disputes involving water quality concerns, the viability of the public trust doctrine as a tool for groundwater regulation, and transboundary management issues, among many others. This societal and legal evolution proves Justice Winslow correct: The law of groundwater is indeed “interesting,” and courts are giving it ever more “serious consideration.” Consider the following examples:
Continue reading “Groundwater: A “Gaining Stream” Of Controversy”
In recent years, it has become relatively common knowledge that the Great Lakes Compact generally bans diversions of Great Lakes water outside the Great Lakes basin but offers limited exceptions. A community that straddles the basin line, or that lies within a county that straddles the basin line, may apply for a diversion subject to certain stringent technical conditions. I have previously written in this space that the Compact has been successful at least insofar as the party states were able to agree on and subsequently enforce a common decision-making process to consider such requests. In October 2018, Compact supporters will celebrate its 10-year anniversary.
But the Compact’s first decade has not passed without controversy, much of it centered on the diversion provisions generally and on southeastern Wisconsin in particular. In fact, during a recent conference keynote address here at the Law School’s Lubar Center, Compact expert Peter Annin noted that our area has more “diversion hotspots” than the other Compact party states combined. Consider that in 2009, the City of New Berlin (a straddling community) became the first community to successfully apply for a diversion, and in 2016, the City of Waukesha became the first community within a straddling county to successfully apply for a diversion.
Just last week, the region made Compact history for yet another reason. For the first time, opponents to an approved diversion have filed a legal action to challenge the approval in a state administrative hearing, potentially as a precursor to an appeal to Wisconsin circuit court. The proceedings to follow will provide important and novel insights on how to interpret the Compact. Continue reading “Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?”
Governor Scott Walker and Wisconsin Economic Development Corporation Secretary Mark Hogan have often said that the Foxconn project will have a “transformational” effect on Wisconsin. During Hogan’s recent appearance at the Law School’s Lubar Center for an On the Issues with Mike Gousha program, an audience member asked Hogan whether the project might be “transformational” in a negative way because of the potential impacts on water and the environment. Those misgivings are shared by many in the community, judging by the responses to a recent Marquette Law School Poll item reporting that 62% of Wisconsinites are either “very” or “somewhat” concerned that the plant “will have substantial negative impacts on water and the environment.”
Nevertheless, as Hogan correctly pointed out in responding to the question, manufacturing has always been an important part of Wisconsin’s economy and culture. According to some recent estimates, Wisconsin companies produced over $56 billion of goods in 2016, accounting for over 18% of the state’s GDP and 86% of its exports. These firms have long had to comply with environmental regulations. Hogan maintained that, with a few exceptions spelled out in 2017 Wisconsin Act 58, Foxconn would be treated no differently than our existing industries, and would have to fully comply with all federal and state laws related to environmental pollution. In this post, I review the relevant parts of Act 58 and explore Foxconn’s potential impacts on water quantity and water quality.
Continue reading “Will the Foxconn project “transform” Wisconsin’s water resources?”
I have previously written in this space about the difficult water policy issues facing “megacities,” generally defined as cities with a population of over ten million people. Meanwhile, the Law School, working in partnership with the Milwaukee Journal Sentinel, has taken an increasing role and interest in studying various aspects of the “Chicago Megacity,” the region stretching from the Milwaukee area, across metropolitan Chicago, and into northwest Indiana. For example, see here, here, here, and here for discussion of a variety of issues such as economic development, transportation, and education.
We are excited to announce that on April 17, the Law School and the Journal Sentinel will continue those efforts, hosting a conference titled “Lake Michigan and the Chicago Megacity in the 21st Century.” The event is free and open to the public, but advanced registration is required; find out more and register at this link. More details about the conference follow.
Continue reading “Lake Michigan and the Chicago Megacity in the 21st Century”
On Monday the Supreme Court heard arguments in two interstate water allocation disputes, Florida v. Georgia and Texas v. New Mexico and Colorado. The Court has also accepted a third such case, Mississippi v. Tennessee, and assigned it to a special master. The cases will force the Court to examine the balance between economic development and environmental protection, the federal role in state water disputes, and whether groundwater and surface water allocation should be governed by the same decisional rules.
The trio of pending cases belies the Court’s expressed preference for such disputes to be resolved by interstate compacts entered into pursuant to the Compact Clause (Article I, Section 10, Clause 3). It has previously commented that it approaches interstate water disputes with caution given the “complicated and delicate questions” involved, and has advised “expert administration [via a compact] rather than judicial imposition of a hard and fast rule.” Nevertheless, in these cases at least, an old adage often attributed to Mark Twain trumped the Court’s advice: “whiskey is for drinking, and water is for fighting over.”
Continue reading “Supreme Court Navigates Two Water Disputes, With More On The Way”
The late Justice Antonin Scalia, a former administrative law professor, once began an address on Chevron deference by warning his audience to “lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” Perhaps that warning should preface this blog post, which also concerns administrative law. Of course Scalia’s comments that day turned out to be anything but “dull.” Broadly speaking, neither is the subject matter he covered: as the discipline concerned with governmental decision-making, administrative law issues confront nearly every legal practice in areas as diverse as taxation, environmental permitting and litigation, labor relations, and countless others.
In Wisconsin, the past five years have seen an unprecedented makeover in longstanding principles of state-level administrative law. These changes shift power away from agencies and toward courts, the legislature, and the governor. In this post, I divide the changes into three categories: 1) reductions in agency authority; 2) additions to the rulemaking process that, among other things, allow the Legislature to indefinitely block new rules; and, perhaps most importantly, 3) fundamental revisions to the doctrine of judicial deference to agency interpretations of law. Taken together, these developments deeply change the balance of power between agencies and the three branches of Wisconsin government.
Continue reading “The quiet revolution in Wisconsin administrative law”
I have recently written in this space about several legal and policy matters of current importance to the Great Lakes, including the city of Waukesha, Wisconsin’s application for a diversion of Great Lakes water pursuant to the Great Lakes Compact; the potential invasion of the Great Lakes by a voracious non-native species of fish, the Asian carp; and President Trump’s budget proposal to completely defund the Great Lakes Restoration Initiative (GLRI), a federal program that enjoys strong bipartisan support and supports approximately $300 million in Great Lakes projects annually. There have been important developments on all three fronts over the past few weeks.
Waukesha diversion. The last remaining major barrier to Waukesha’s diversion of Great Lakes water for its public supply has fallen. Continue reading “Revisiting recent posts on Great Lakes law and policy”
The recent discovery of a voracious, non-native aquatic predator only nine miles from Lake Michigan is alarming but not particularly surprising, in light of the unappealing options for legal and political responses. However, when coupled with policy and budget changes implemented by the Trump administration, the new find may reignite a series of legal battles between the Midwestern states that the Seventh Circuit has dealt with twice in the past six years. First, the factual background: Asian carp (shorthand for several species including grass carp, bighead carp, silver carp, and black carp) eat up to 20% of their weight per day and grow to several feet long and over one hundred pounds. Videos document their tendency to leap out of the water when startled, sometimes colliding with boaters and causing injury or damage. They have no natural predators and, by some estimates, would wreak havoc on the Great Lakes food chain and devastate the multi-billion dollar Great Lakes fishery. In 2006 the U.S. Fish and Wildlife Service estimated that “Asian carp pose the greatest immediate threat to the Great Lakes ecosystem.”
The story of the carp’s inexorable march to the doorstep of the Great Lakes is both a lesson in the law of unintended consequences and a cautionary tale of political and legal inefficacy. Beginning in the 1960s, southern fish farmers imported several species of carp to control vegetation in ponds. The carp entered the lower Mississippi River basin via accidental releases and flooding events, and have since rapidly migrated through nearly the entire basin, with their populations increasing exponentially. Even so, the carp could not have threatened the Great Lakes without the artificial connection between the Mississippi and Great Lakes basins created by the City of Chicago in the year 1900, which was originally constructed as a crude sewage treatment solution but now serves other purposes.
The Obama administration made some efforts to control the spread of the carp, and especially to keep them out of the Great Lakes. In 2010, the president convened a “carp summit” at the White House and appointed an “Asian carp czar” who led an effort to eradicate them. President Obama also proposed a $78 million plan to improve the federal response to the issue. Later, the United States Army Corps of Engineers developed a four-pronged strategy to prevent carp from becoming established in the Great Lakes, including the construction and operation of a large electric dispersal barrier between the Chicago Sanitary and Ship Canal and the entry to the Great Lakes. And the Wisconsin Department of Natural Resources recently developed a “Response Framework for Invasive Species,” which addresses invasive aquatic species without specifically mentioning the carp. None of these well-meaning efforts has successfully halted the carp’s progress.
The Trump administration has taken a different approach that may run afoul of two recent Seventh Circuit decisions and lead to additional legal maneuvering. Continue reading “The Uninvited”