With candor and humor, environmental regulators give commitments to tackle challenges

In 15 years of public policy programs hosted by Marquette Law School, there may never have been as succinct, candid, and humorous answer to a question as one provided by Preston Cole, secretary of the Wisconsin Department of Natural Resources, during a program on June 15, 2022, in the Lubar Center of Eckstein Hall.

The session, “A Federal-State Conversation on Environmental Issues,” featured Cole and Debra Shore, administrator of Region 5 of the Environmental Protection Agency, which covers much of the Midwest, including Wisconsin. David Strifling, director of the Law School’s Water Law and Policy Initiative, was the moderator. The session was held before an in-person audience and livestreamed.

Strifling asked Cole what was one thing Wisconsin needed from the EPA. “Money, money, money, money!” Cole sang in response. “Money!” he added, for emphasis.

EPA funding translates into buying power to deal with major environmental issues such as the impact of large-scale agricultural operations, invasive species, and chemical contamination of water, Cole said.

Shore and Cole said their agencies have renewed and increased commitments to dealing with a host of issues including pollution from chemicals known as PFAS and global warming.

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As Our Climate Changes, What Can Be Done about Flood Risk?

Flooding is the most common and most costly natural disaster in the United States, and the toll it takes is only expected to grow over the coming years. Rising sea levels, more powerful hurricanes, and more intense rainfall—all worsening thanks to climate change—will displace people from their homes and put increasing strain on the systems we use to address these A flooded streetrisks. One of the most important such systems is the National Flood Insurance Program (“NFIP”), which has been in debt to the U.S. Treasury since 2005 and is perpetually derided as “broken.” It seems obvious that a big part of the solution to the problems ailing the NFIP (and to our problem of flood risk more generally) is to move people away from flood-prone areas, and yet the policy reforms intended to address these issues have prove extremely difficult for Congress to enact. In a new paper recently published in the Colorado Law Review, I offer some theories as to why.

A key obstacle to seemingly enlightened policy reform, I argue, is our country’s deep-seated hostility to paternalistic interventions. Drawing on the philosophical literature on paternalism, I note the key features that make such laws objectionable to many people: they seek to override individuals’ judgments about what is best for them. Even when such decisions appear to be flawed (like the choice to live in a flood-prone area, for example), they often depend on value judgments, and it is therefore hard to say that a different choice would be objectively rational. It is impossible, for instance, to weigh the emotional value of a home or neighborhood against the expected future costs of flooding in a way that produces an objectively optimal course of action, in the same way there is no objectively correct way to eat, given the emotional and cultural significance of food.

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Interdisciplinary Research in Stormwater Management

Interdisciplinary Research in Stormwater Management

When it rains or snows, the resulting runoff can collect pollutants including salts, fertilizers, chemicals, oils, and sediment, among other things. These contaminants have the potential to impair surface water and groundwater that receive the runoff. Communities in the United States face growing Stormwater flowing to a gratechallenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors.  These changes have increasingly stressed existing “static” stormwater management systems, such as pipe networks and ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors requires innovative and resilient solutions such as real time control (RTC) or “dynamic” stormwater management systems.  RTC systems are typically automated or semi-automated and involve the use of sophisticated dynamic models to operate stormwater controls in real time, such as modifying setpoints to open and close valves, or routing storm water differently under particular system conditions.  The goal of an RTC system is to continuously regulate the flow in the various branches of a network based on real-time information related to system capacity and weather conditions, thus reducing the magnitude of outflows during storms and relieving other stresses on the system.

During a recent grant-funded project, an interdisciplinary team of Marquette law faculty, engineering faculty, and students from both disciplines studied dozens of examples involving RTC implementation in the United States and abroad.  We also examined the literature detailing institutional barriers to RTC innovation.  And we reviewed numerous legal decisions related to municipal liability for stormwater management (or mismanagement). Finally, we suggested a variety of strategies to combat these institutional and legal barriers to smooth the transition to RTC systems.

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