Lake Michigan and the Chicago Megacity in the 21st Century

Posted on Categories Environmental Law, Lubar Center, Marquette Law School, Milwaukee, Public, Speakers at Marquette, Water LawLeave a comment» on Lake Michigan and the Chicago Megacity in the 21st Century

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 millA photo of the cover of Marquette Lawyerion 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 hereherehere, 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.

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Supreme Court Navigates Two Water Disputes, With More On The Way

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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 The Rio Grande River near the USA-Mexico borderbalance 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.”[1] 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.”

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The quiet revolution in Wisconsin administrative law

Posted on Categories Environmental Law, Public, Water Law, Wisconsin Law & Legal SystemLeave a comment» on The quiet revolution in Wisconsin administrative law

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.”[1] 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 A view of EPA headquarters in Washington, DChe 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.

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Revisiting recent posts on Great Lakes law and policy

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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; Great Lakes from spaceand 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 Uninvited

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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 yeAn invasive Asian carp jumps from the waterars. 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”

What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes

Posted on Categories Environmental Law, Political Processes & Rhetoric, Public, Water LawLeave a comment» on What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes

At a recent Law School event, several panelists (including me) discussed the potential for the Trump administration to make important changes to the law in our respective areas of concentration. I said at the time that environmental law has proven quite resistant to previous efforts that would have weakened or erased it. Part of this resiliency is due A photo of a wetlandto the lengthy time horizon typically involved in repealing and replacing statutes and rules; another major factor is longstanding public opposition to such changes. With that said, major attempts are underway that, if implemented, would seriously undermine bulwarks of environmental law such as the Endangered Species Act, the National Environmental Policy Act, and the Antiquities Act. The Trump EPA has also recently begun the long process of repealing and replacing the Clean Water Rule, under direction from President Trump to rewrite it in a manner consistent with one of Justice Scalia’s previous opinions.

Whether or not those efforts succeed, the executive branch has a major impact on the day-to-day operation of environmental law even in the absence of major statutory or regulatory reforms. The most direct avenues for this are through budgeting decisions and enforcement discretion. With debates over spending engulfing Washington, it’s worth examining the potential impact of President Trump’s recent “America First – Budget Blueprint” on the Great Lakes region. Several features of the proposal have generated controversy and may be especially significant in the Great Lakes region: Continue reading “What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes”

Innovation at the Food-Energy-Water Nexus

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I have previously written in this space about the importance of policy innovation at the food-energy-water nexus. On Tuesday, May 16, Marquette Law School will host an interactive and interdisciplinary workshop to explore those issues, drawing from engineering, legal, scientific, and policy spheres. The workshop format and accompanying discussions will (1) provoke conversations about overcoming barriers to the implementation of innovative water solutions, (2) A circle graph showing how water and energy are relatedstimulate ideas for focused academic research in the nexus, and (3) drive the development of organizational policy and technology roadmaps. The event incorporates sessions on energy use, recovery, and minimization at water and wastewater utilities; on groundwater; on agricultural sustainability and food waste; and on ethical considerations for stakeholders, a topic often absent from similar events. A working lunch and roundtable discussion as well as breakout sessions will invite and encourage broad-based attendee participation. Attendees will also have numerous opportunities to network with experts, researchers, and students. This event is sponsored by a grant from the National Science Foundation I/UCRC for Water Equipment and Policy. More details, including an agenda and registration information, are available here. Confirmed participants include: Continue reading “Innovation at the Food-Energy-Water Nexus”

Water: 2016 Retrospective (and Issues to Watch in 2017)

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At this time of year it seems appropriate to both examine the year just ended and look forward to the one to come.[1] 2016 brought numerous developments in the water law and policy sector at the national and state levels, and also here at Marquette University Law School’s Water Law and Policy Initiative. 2017 promises more of the same.

Nationally, the Flint drinking water crisis continued to dominate headlines. While the quality of Flint’s drinking water is slowly improving, it’s certainly too early to declare the crisis over. As a stark reminder of that, an ongoing investigation led to a series of criminal charges against those at the heart of the disaster.  Here at Marquette, drinking water issues also took center stage. The Water Law & Policy Initiative’s September Public Policy and American Drinking Water conference, organized in combination with the Law School’s larger Public Policy Initiative, drew widespread attention and brought together national experts in a variety of water-related fields. It was at this event that Mayor Barrett spoke of the pressing risks of lead in Milwaukee because of the 70,000 lead laterals serving City of Milwaukee residences. The mayor’s comments at and after the conference provoked intense media coverage and quickly resulted in the City making numerous policy changes. For example, Mayor Barrett agreed to provide free water filters to affected citizens, and ultimately budgeted to pay a substantial part of the cost to replace (privately owned) lead service lines.

Many other stories also captured headlines in 2016.

Continue reading “Water: 2016 Retrospective (and Issues to Watch in 2017)”

Pathways to Future Environmental Legislation

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Over the past quarter century, repeated congressional failures to enact any significant piece of environmental legislation led observers to describe such efforts as “gridlocked,” “deadlock[ed],” “dysfunction[al],” “broken,” the subject of “considerable, self-imposed inertia,” and the surrounding atmosphere as “highly inhospitable to the enactment of major environmental legislation.”[1] Things weren’t always this way, as I discuss in more detail below; in the 1970s, a remarkable burst of legislative activity largely shaped the field we know today as federal environmental law.

In a paper soon forthcoming in the Journal of Land Use and Environmental Law, I argue that a perhaps minor and certainly uncontroversial piece of environmental legislation known as the Microbead-Free Waters Act of 2015 (“the Act”) reveals potential pathways through or around this modern gridlock. The Act prohibits the manufacture or introduction into interstate commerce of useful – but environmentally harmful – microscopic plastic particles known as “microbeads” that are commonly used in cosmetic products. Its provisions are direct and uncomplicated.

Yet the strategic building blocks underlying the Act—including an emphasis on public health issues and broad stakeholder support driven by industry concerns about unfair competition and opposition to local legislation—may provide innovative and useful foundations for future efforts to pass environmental legislation.

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Public Policy and American Drinking Water

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On September 7, 2016, amid great concern about the future of water quality and quantity, Marquette Law School will host a conference titled “Public Policy and American Drinking Water.”  The conference will take an interdisciplinary approach to exploring the legal, scientific, engineering, and Banner logo - Earth in a dropenvironmental water issues that fill today’s news and touch all of our lives.  Leading figures from a variety of disciplines will discuss topics such as lead and aging infrastructure, privatization of water systems, public perceptions of water quality issues, the (under)valuation of water, and quantity and quality concerns related to groundwater.

Attendance is complimentary and open to the public, but pre-registration – available at this link – is required.

Participants include: Continue reading “Public Policy and American Drinking Water”

Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges

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This week the City of Waukesha celebrates the success of an impressive technical effort 13 years in the making.  After inserting some final conditions, the Great Lakes Compact Council unanimously approved Waukesha’s application to divert water from Lake Michigan for its public supply.  The application has generated significant regional and national interest because of its status as a “test case” for the Great Lakes Compact.  The Compact generally bans diversions of Great Lakes water outside the Great Lakes basin, but offers limited exceptions for communities that straddle the basin Waukesha diversionline, or that lie within counties that straddle the basin line, provided a community’s application meets certain stringent technical conditions.  Waukesha is the first community wholly outside the Great Lakes basin to apply for a diversion (though not the first community to receive a diversion; New Berlin, which straddles the basin line, successfully achieved that distinction in 2009).  As I have written previously in this space, the Waukesha case has been a striking demonstration that the process set up under the Compact works, no matter what one’s position on the outcome.

Yet from a legal perspective, that process may not be complete.  The technical review and approval challenge remains subject to legal challenges.  One vehicle for such a challenge is the Compact itself.  It contains a “dispute resolution and enforcement” provision that offers redress to “any person aggrieved” by an action of the Compact Council or of a party to the Compact.  The provision offers a glimpse of a legal process that may be just as complex as the technical approval process just completed. Continue reading “Waukesha Diversion Approved; Focus Shifts to Potential Legal Challenges”

Justice Kennedy Criticizes “Notoriously Unclear” and “Ominous” Scope of the Clean Water Act

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The Clean Water Act requires regulatory agencies to make difficult choices about exactly where “water ends and land begins.”[1]  Whether a particular property contains “waters of the United States,” the touchstone for federal jurisdiction under the Act,[2] is not easy to determine, especially when the question involves not traditionally navigable waters but wetlands.  public trustThe Environmental Protection Agency defines “wetlands” as areas such as swamps, marshes, and bogs that are periodically inundated with water.  Severe consequences flow from unpermitted actions that impact “waters of the United States.”  The Act imposes criminal liability and civil penalties to the tune of $37,500 per day of violation.[3]  Upon request, the Army Corps of Engineers will issue jurisdictional determinations (“JDs”) specifying whether a particular property contains jurisdictional waters.  In recent years, the Supreme Court has wrestled with various aspects of wetlands issues again and again and again and again.  The most recent such case, United States Army Corps of Engineers v. Hawkes Co., No. 15-290, raised the question of whether Corps JDs constitute “final agency action” that is immediately appealable in federal court under the Bennett v. Spear analysis rooted in the Administrative Procedure Act.

Earlier this week, the Supreme Court unanimously ruled that JDs constitute final agency action and are immediately appealable.  The Court quickly rejected the Corps’ two arguments to the contrary: first, the rather unreasonable suggestion that affected citizens could simply proceed without a permit, risking an enforcement action during which one could argue that no permit was required; and second, that upon receiving a “positive” JD, affected citizens could apply for a permit and seek judicial review of the JD upon the conclusion of the lengthy permitting process (the property owners in Hawkes estimated that it would cost well over $100,000 to “earn” the appeal right under that scenario).

Despite its importance, the decision is not particularly surprising given the tenor of the oral argument as well as the Court’s recent decision in Sackett v. Environmental Protection Agency, 566 U.S. — (2012) that an EPA compliance order is immediately appealable to federal court when it was based on the factual assumption that a parcel contained wetlands.  Perhaps for that reason, it’s not the majority opinion that has everyone talking; instead, Justice Kennedy stole the show with a three-paragraph concurrence.

Continue reading “Justice Kennedy Criticizes “Notoriously Unclear” and “Ominous” Scope of the Clean Water Act”