Is Wisconsin’s public trust doctrine eroding?

Posted on Categories Environmental Law, Public, Water Law1 Comment on Is Wisconsin’s public trust doctrine eroding?

Environmental law is of relatively recent vintage.  Most of its significant principles date from the 1960s or later, with a few notable exceptions.  The latter category includes the public trust doctrine.  As the name suggests, the doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.  public trustThe doctrine can be traced back to ancient Roman law. The “Institutes of Justinian,” compiled in the Sixth Century A.D., provided:

“By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings . . . .”

In this country, the United States Supreme Court recognized the doctrine in its 1892 decision in Illinois Central Railroad Co. v. Illinois,[1] as detailed by Marquette Law School Dean Joseph Kearney in a 2004 article.  The doctrine has since evolved into many different strains of varying strength primarily governed by state common law.  Here in Wisconsin, it is rooted in the Article IX, § 1 of the state constitution, which itself borrowed heavily from the Northwest Ordinance of 1787.  Over a hundred years ago, in Diana Shooting Club v. Husting, the Wisconsin Supreme Court described the doctrine as preserving to the people “full and free use of public waters,”[2] and the Wisconsin Legislature has delegated the resulting regulatory authority to the Wisconsin Department of Natural Resources.  As recently as 2011, in Lake Beulah Management District v. DNR, the Wisconsin Supreme Court expansively interpreted the doctrine as a valid basis for DNR to consider whether to grant, conditionally grant, or deny a high capacity well permit based on the well’s impact on other waters of the state.[3]

However, several recent developments highlighted by a legislative hearing earlier this week seem to indicate that in Wisconsin, unlike other states, the relative strength of the public trust doctrine is ebbing. Continue reading “Is Wisconsin’s public trust doctrine eroding?”

Water Policy For Megacities

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This week, over 30,000 diplomats and delegates are converging on Paris for what has been called one of the largest gatherings of world leaders in history.  The Paris climate summit has captivated the attention of the world, including both supporters and critics of a potential climate pact.  Megacity CoverAnother, much less publicized conference is getting underway in Paris today, December 2: the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) “Eaumega 2015” conference.  The name is taken from the beginning of the French phrase for “Water, Megacities, and Global Climate Change.”

It’s no coincidence that the two conferences are being held simultaneously and in the same city.  Most scientists predict that the impacts of a changing climate on water will be severe, and may include increasingly unstable and extreme weather patterns: heavier rainfall and increased flood risk in some areas, and increased periods of drought in other areas, coupled with changes in water availability due to quantity and quality restrictions.

In light of these risks, forward-looking water policy is particularly important for megacities – generally defined as cities with a population over ten million – due to their sheer size, often complex governance models, and social heterogeneity.  Many are located in coastal areas that may experience rising sea levels.  As I have discussed in previous blog posts, water impacts will also be felt in related industries such as energy and agriculture.  The UNESCO conference is an opportunity for megacity representatives to initiate dialogue on adapting to or mitigating the effects of climate change on water resources in megacities.

Chicago – a megacity in which Marquette Law School has taken an increasing role and interest (see, for example, here, here, here, and here) – is among ten megacities that are both represented and being studied at the Paris “Eaumega” conference.  Chicago’s policymakers are presenting five new water policy initiatives.  Continue reading “Water Policy For Megacities”

Back To The Future – Revisiting “Milwaukee 2015: Water, Jobs, and the Way Forward”

Posted on Categories Environmental Law, Marquette Law School, Public, Water LawLeave a comment» on Back To The Future – Revisiting “Milwaukee 2015: Water, Jobs, and the Way Forward”

During a time-travel scene in the 1989 film “Back to the Future II,” director Robert Zemeckis and writer Bob Gale attempted to predict the world of Banner logo - Earth in a dropOctober 2015.  They got some things right and others wrong.   Zemeckis and Gale aren’t the only ones who made predictions about 2015, however.  Six years ago, in November 2009, Marquette Law School’s Public Policy Initiative convened a conference entitled “Milwaukee 2015: Water, Jobs, and the Way Forward.”  The speakers included Wisconsin’s then-Governor Jim Doyle, Milwaukee Mayor Tom Barrett; and Badger Meter’s Rich Meeusen, co-chair of what was then called the Milwaukee 7 Water Council (and now is simply The Water Council).  The conference’s key theme was making southeast Wisconsin the hub of freshwater-related business in North America.

Meeusen delivered one of the gathering’s most memorable lines: “My dream is, by 2015, when people think water, they think Milwaukee.”  Another speaker, Anselmo Teixeira of Siemens, noted that as of 2009 no water technology hub had been established in North America.  Teixeira recognized Milwaukee’s advantages in seeking to become such a center, but cited the need for government, university, and business leaders to do “the right things.”    Six years later, in the conference’s title year, we can begin to evaluate whether Meeusen’s dream has become a reality.

Continue reading “Back To The Future – Revisiting “Milwaukee 2015: Water, Jobs, and the Way Forward””

The Power of Process: Two Test Cases for the Great Lakes Compact

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Great Lakes CompactProcess, in its various forms, is foundational to our legal system.  Water law is no exception.  For thousands of years, transboundary waters have been the root of conflict and even war.  A recent report commissioned by the State Department concluded that many more such disputes are likely in the future.  The Great Lakes Compact, a binding regional agreement between Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin, has so far at least provided an interesting counter-example to this trend, in large part because the signatories were able to agree on a common decision-making process.

In many ways, in fact, the Compact is a process-driven document.  Substantively, it generally prevents new or increased diversions of Great Lakes water outside the Great Lakes Basin.  Member states must use a common, consistent decision-making standard to evaluate proposed uses of Basin water in their jurisdictions.  Some more controversial proposals, such as diversions of water to communities in “straddling” counties (more on this later) are subject to a regional review process requiring unanimous consent of the member states.  The Compact’s ultimate impact will not be known for years to come, but two early Wisconsin test cases provide interesting data points demonstrating how the process works on both state and regional levels.

Continue reading “The Power of Process: Two Test Cases for the Great Lakes Compact”

Legal and Policy Aspects of the Water-Energy Nexus

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Modern systems of water and energy are tightly intertwined.  Significant amounts of water are expended during the phases of energy production, from resource extraction to final generation.  In turn, energy powers the equipment that extracts groundwater or surface water, purifies water to the EWNstandards required for human consumption, pumps water to our communities and businesses, and finally treats wastewater before releasing it to the environment.  That relationship was the focus of a joint meeting held here at Marquette University earlier this month between The Water Council and the Mid-west Energy Research Consortium.  The two organizations plan to design a joint roadmap to advance local efforts, including academic research, in the “energy-water nexus.”

To date, significantly less attention has been paid to the legal and policy aspects of this “nexus.”  Policy strategies surrounding the “nexus” have generally focused on efficiency measures to limit demand for both water and energy, especially in sectors that use both such as agriculture and power generation.  More innovation solutions might include sustainability index measurements, pricing corrections, and alternative decisional frameworks that include broader groups of stakeholders.

The conceptual “nexus” model is not without its critics, however.

Continue reading “Legal and Policy Aspects of the Water-Energy Nexus”

When Public Safety and Water Quality Collide

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Greater environmental protection and increased public safety are often believed to be synonymous, or at least to go hand-in-hand.  Sometimes, though, those goals are arguably in tension.  The application of salt to de-ice roads, parking lots, and sidewalks for safe travel is one such case.  Those who have lived and worked in northern climates are no doubt familiar with the sensation of excess de-icing salt crunching underfoot during the winter months, and have probably lamented the imStrifling blog photopact of excess salt on shoes, clothes, and vehicles.  Recent studies have shown that disproportionate application of deicing salt also has a significant and negative impact on water quality in the form of elevated chloride concentrations.

Not much attention has been paid to this problem from a legal or policy standpoint, and it’s unlikely that it can be addressed with traditional regulatory tools providing only limited authority over so-called “non-point sources,” such as farm fields and – as relevant to the problem of excess de-icing salt – roads and parking lots.  Alternative policy tools to address the issue might include a salt tax, green infrastructure, integrated watershed assessment and management, and self-governance at the community or individual levels incentivized by regulators or demanded by customers and the public.  Continue reading “When Public Safety and Water Quality Collide”

Copenhagen Conundrum

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We are only a week away from the beginning of the highly anticipated global climate summit in Copenhagen.  I recently took part in a mock negotiation session (I represented Mexico), and I can attest to just how difficult it will be to reach any agreement at the summit – even, as has been suggested lately, an agreement in principle without a formally binding treaty.  World leaders recognized as much at the recent Asia Pacific Economic Cooperation (APEC) meeting, and admitted that it was unrealistic to expect that a legally binding international treaty could be negotiated at Copenhagen.  From the basics of climate science to poverty abatement, the issues that divide the parties are vast.  Those issues have been discussed extensively, so I will instead point out three recent events that may affect the likelihood of a deal:

November 20, 2009: An electronic break-in at the University of East Anglia reveals documents and e-mails that appear to show intent to withhold or manipulate certain data; quickly dubbed “Climategate” by climate skeptics, the leaks are at best embarrassing for prominent climate scientists.

November 25, 2009: President Obama announces that the United States will commit to emissions cuts of 17 percent by 2020 and about 83 percent by 2050; Obama also announced that he will personally attend part of the summit.  The pledges are expected to break a logjam of countries that had been waiting for a United States commitment. 

November 29, 2009: India and China indicate that they may walk out of the negotiations if the developed countries do not agree to the sharing of “green” technology and massive economic transfers for a variety of climate change mitigation and abatement purposes, such as stopping deforestation and forest degradation.

No matter what your position is, the challenges are daunting and the stakes are high.  Whatever happens, the Copenhagen summit will be a fascinating opportunity to observe international diplomacy in the environmental context.

Should We Abolish Copyright in Academic Journal Articles?

Posted on Categories Intellectual Property Law, Legal Scholarship1 Comment on Should We Abolish Copyright in Academic Journal Articles?

scholarSome years ago, when I was on the Marquette Law Review editorial board, my responsibilities included obtaining a rudimentary copyright release from authors whose articles we had agreed to publish.  In fact, I signed the form myself when I published my Note.  If we did not obtain the release, we would not publish the article.  I presume this is still the Review’s policy, although current members can confirm or deny it, and I also suspect that many journals have a similar procedure.  If the “open access” movement continues to gather steam, however, one can wonder how long this and similar practices will continue.    For example, Professor Steven Shavell recently posted a draft, pre-publication article for public comment arguing that we should abolish copyright for all academic writings.

The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles?  Continue reading “Should We Abolish Copyright in Academic Journal Articles?”

Commodifying Environmental Resources

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grand canyonMany people value certain environmental resources even if they have never actually visited or “used” those resources.  For example, a person might assign what economists call “nonuse values” to the Grand Canyon, the Great Barrier Reef, or a particular endangered animal species even if she has never hiked the Canyon, gone scuba diving on the Reef, or personally encountered that endangered species.   Some scholars have categorized nonuse values into three types: the “option value” is the value a person places on preserving an environmental resource so that she has the option of using it in the future; the “bequest value” is the value the person places on being able to preserve the resource for the enjoyment of future generations; and the “existence value” is the value the person places on the mere knowledge that the resource exists. 

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things.  Continue reading “Commodifying Environmental Resources”

The Real Value in Appellate Oral Argument

Posted on Categories Judges & Judicial Process, Legal Practice3 Comments on The Real Value in Appellate Oral Argument

moot-court_trimmedDoes appellate oral argument still matter?  In some courts with exceptionally heavy caseloads, such as the Wisconsin Court of Appeals, oral argument is vanishingly rare.  But even in courts that regularly hold oral argument, some observers claim that it has devolved into a dog-and-pony show unlikely to move judges who have already reached unspoken decisions based on often-voluminous briefing.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4th District, 2nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages.  Continue reading “The Real Value in Appellate Oral Argument”

The “Statisticization” of Death: From Stalin to “The Box”

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stalinWhile discussing with other Allied leaders the potential deaths of tens of thousands of Allied soldiers during the planned invasion of France during World War II, former Soviet leader Joseph Stalin is said to have remarked, “A single death is a tragedy; the death of thousands is a statistic.”  Whether or not the quote is apocryphal (some attribute it to the writer Erich Maria Remarque), it seems to me that we increasingly find ourselves in the perhaps unenviable position of revealing more than a kernel of truth to the sentiment.

Today, the “statisticization” of death has been reduced to a regulatory art form as part of analyses that agencies undertake to determine whether the cost of a regulation is justified by its benefits, including the number of lives it might save.  This procedure is championed by legal economists such as Cass Sunstein and Kip Viscusi, and the mathematics involved can be difficult to penetrate.  The density and abstraction of the calculations is probably for the better, because few of us could rationally and openly assign a numerical value to our own life or to the lives of our friends and family.  Viewing multiple lives in the statistical abstract, as Stalin may have done, perhaps seems to us less stomach-turning.  This concept is really nothing new: over two hundred years ago, Adam Smith theorized that sympathy was attenuated by distance.

I am not uncomfortable with cost-benefit analysis as a regulatory instrument, so long as it remains one tool in the regulator’s box and not a be-all, end-all directive that cannot be countermanded.  Continue reading “The “Statisticization” of Death: From Stalin to “The Box””