Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub

Posted on Categories Milwaukee, Public, Speakers at Marquette, Water LawLeave a comment» on Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub

Ten years ago, Marquette Law School sponsored a conference, “Milwaukee 2015: Water, Jobs, and the Way Forward.” Speakers at the conference, including Wisconsin’s then-Gov. Jim Doyle and Milwaukee Mayor Tom Barrett, put forward a vision of Milwaukee becoming a world leader in water expertise with a Milwaukee area economy boosted by an influx of water-based jobs and companies.

On Nov. 5, 2019, a decade later almost to the day, the Law School convened a follow up conference (titled “Milwaukee 2025: Water, Jobs, and the Way Forward”) with some of the same speakers, as well as others, to ask how things have been going and what lies ahead.

How would you rate Milwaukee’s record on becoming a water hub? Mayor Barrett responded that the area has moved in the right direction. “I won’t give us an A plus, I’ll give us a solid B for moving in that direction,” he said. “We have changed the perception of Milwaukee in a significant way in the last 10 years.”

Marquette University President Michael R. Lovell, a major proponent of the emphasis on water, said the goal in 2009 was to make Milwaukee a global center of excellence for all things related to water, “something like the CDC for water,” a reference to the federal Centers for Disease Control and Prevention.  Lovell said, “We have not gotten there yet; we are still striving to do so.” Milwaukee should be proud of what has been done, including the creation of The Water Council, the Global Water Center, and the School of Freshwater Sciences at the University of Wisconsin-Milwaukee, Lovell said. Continue reading “Conference Gives Milwaukee a Good — But Not Great — Progress Report as a Water Hub”

How Might Courts Interpret the Great Lakes Compact?

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on How Might Courts Interpret the Great Lakes Compact?

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 Great Lakes from spaceLaw 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?”

New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

Posted on Categories Criminal Law & Process, Environmental Law, Lubar Center, Marquette Law School, Marquette Law School History, Milwaukee Public Schools, Prisoner Rights, Race & Law, Speakers at MarquetteLeave a comment» on New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

A drawing of a policeman sitting on a badge. This third and final post reflecting the “In Search of Better Outcomes” theme of the new Marquette Lawyer magazine begins with a third pair of articles, the one that actually provides the quoted phrase (see here and here for the previous posts and previous pairs). These last two articles, with a brief introduction, look at the impact of law enforcement on people on different sides of the badge—and at possibilities for better outcomes both for those in law enforcement who are affected negatively by the cumulative trauma with which they deal and for offenders upon release, after they have served time in incarceration.

“Behind the Badge: A Growing Sense of the Need in Law Enforcement to C ope with Trauma” is an edited transcript of a panel discussion involving four people who have served in law enforcement. They offer insights on the need for better avenues for getting help for those who see so much violence and extreme behavior as part of their jobs protecting the public. The discussion was part of Law School’s Restorative Justice Initiative conference on November 9, 2018, titled “The Power of Restorative Justice in Healing Trauma in Our Community.”

“Putting a Period at the End of the Sentence,” an article by Alan Borsuk, draws on a conference, on October 4, 2018, of the Law School’s Lubar Center for Public Policy Research and Civic Education. Titled “Racial Inequality, Poverty, and the Criminal Justice System,” the gathering focused on issues facing people who are returning to the general community after incarceration. The story features some of the keynote remarks by Bruce Western, a sociology professor at Columbia University and author of Homeward: Life in the Year After Prison (2018). It also reports on observations by leaders of programs in the Milwaukee area that aim to help people leaving incarceration establish stable lives in the community.

Continue reading “New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)”

Israel Reflections 2019 – Supreme Court and Eco Peace

Posted on Categories Environmental Law, International Law & Diplomacy, Judges & Judicial Process, Public, Water LawLeave a comment» on Israel Reflections 2019 – Supreme Court and Eco Peace

As we said our goodbyes to Yad Vashem, we headed towards the beautiful Israeli Supreme A picture of the Israeli Supreme CourtCourt to hear from former Chief Justice Asher Dan Grunis. Justice Grunis spoke to the students about the differences between the U.S. Supreme Court and the Israeli Supreme Court.  The comparison in the annual caseload (about 70 cases in the U.S. versus 15,000 cases in Israel!) really stood out for the students.  The court have 15 justices that generally sit in panels of three to hear the cases.

After driving up north, we ended the day with a speech from Adam Waddell from Eco-Peace. Eco peace is an NGO that works to facilitate peace talks and promote sustainable development between the Jordanian, Palestinian, and Israeli governments. Aurusa Kabani shared her thoughts about this NGO.

Continue reading “Israel Reflections 2019 – Supreme Court and Eco Peace”

Congratulations to the 2019 Jessup Moot Court Team

Posted on Categories Environmental Law, International Law & Diplomacy, Marquette Law School, Public, UncategorizedLeave a comment» on Congratulations to the 2019 Jessup Moot Court Team
Image of the head of a yak, with multi-colored horns, advertising the Jessup Moot Court Competition.
Official Logo of the 2019 Jessup Moot Court Competition

Congratulations to Jade Hall, Simone Haugen, Anne O’Meara, and Aleysha Thomas for their strong effort in the 2019 Philip C. Jessup International Moot Court Midwest Regionals in Chicago.  In its 60th year, the Jessup Competition is the world’s largest moot court competition, with participants from over 680 law schools in 100 countries.  This year’s Jessup problem involved the appropriation of traditional knowledge for commercial purposes, state responsibility for corporate environmental degradation and human rights violations, and protection of migratory species.

Attorneys and Marquette Law alumni Rene Jovel (Jessup 2014), Margaret Krei (Jessup 2013), and Alyssa Gemein (Jessup 2017), as well as Professors Ryan Scoville and Megan A. O’Brien served as team advisors.  Special thanks to Juan Amado (Jessup 2011 and former team advisor), Jared Widseth (Jessup 2014), Nathan Oesch (Jessup 2018), Courtney Roelandts (Jessup 2018), Matt Tobin (Jessup 2014), and Professor Andrea Schneider for judging oral practice rounds.

2019: The Year of Clean Drinking Water in Wisconsin

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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 Sunrise over the lakegroundwater 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”

Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability

Posted on Categories Public, Speakers at Marquette, Water LawLeave a comment» on Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability

Anna Clark admits there are thing she wishes she could have probed in greater depth for her critically-praised 2018 book, The Poisoned City: Flint’s Water and the American Urban Tragedy. At the top of that list is the broad question of accountability for the actions that led to a nightmare crisis of lead contamination in water in the city near Detroit.

At the conclusion of an “On the Issues with Mike Gousha” program Wednesday at Marquette Law School, Clark said, “There are lot of unanswered questions.” Investigations of Flint’s water problem are continuing, she said, and she had to stop work on the book at some point.

“If I had more time and more space, I would love to devote it to following a little more what this accountability question looks like,” Clark said. She said that her concern apples not only to Flint but also more broadly to questions of who and what to hold accountable when major environmental harm is uncovered anywhere.   Continue reading “Flint Water: Author Describes a Clear Crisis and Unclear Answers on Accountability”

Minimizing the Risk of Lead Intake at Schools

Posted on Categories Education & Law, Environmental Law, Public, Water LawLeave a comment» on Minimizing the Risk of Lead Intake at Schools

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:

Graphic showing lead testing by public school districts

Continue reading “Minimizing the Risk of Lead Intake at Schools”

The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress

Posted on Categories Environmental Law, Public, Water LawLeave a comment» on The Great Lakes Compact At 10: Significant Achievements, But Still A Work In Progress

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 Great Lakes from spaceto 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”

Groundwater: A “Gaining Stream” Of Controversy

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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.”[1] 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”[2] or even “occult.”[3]

About twoA high-capacity well-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”

Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?

Posted on Categories Environmental Law, Public, Water Law1 Comment on Foxconn Water Diversion Approval to be Tested in Administrative Hearing; Judicial Review to Follow?

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 Great Lakes from spaceapply 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?”

Hunters and Fishers: Conservationists and Stewards of the Land

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wild turkeyDuring the past several years I have seen an increasing number of attacks on people like me, who enjoy hunting, fishing and who consider themselves to be both conservationists and stewards of the land.

The common argument has been that a hunter is just out to kill an animal for the pure enjoyment of it. Nothing could be farther from the truth. When a hunter decides to kill an animal, it is not a decision that is taken lightly and, in most cases, has been a culmination of a long period of preparation and investment in the environment.

Most people who advocate for the banning of hunting do not realize the impact it would have on both the environment directly and to the funding of conservation and environmental projects. No other group in the history of this country had asked the legislature to tax the tools and equipment necessary for their pursuit, but hunters and fishers did so in the 1937 Pittman-Robertson Federal Aid in Wildlife Restoration Act and the 1950 Dingell-Johnson Sport Fish Restoration Act.

By voluntarily agreeing to be subject to this excise tax, hunters and fishers ensured that wildlands would have a funding source. Some of the items that fall under the tax are: fishing equipment (10%), firearms (10-11%), ammunition (11%), archery equipment (11%), import duties on boats (1-2.7%), import duties on fishing equipment (3.7-9.2%), and taxes on boat fuel.

Additionally, hunters and fishers submit to additional taxes every year when they purchase their hunting and fishing licenses. Continue reading “Hunters and Fishers: Conservationists and Stewards of the Land”