Climate Responsiveness at a Local Scale

Climate Responsiveness at a Local Scale

We often focus on the international level when discussing responses to climate change—for example, the just-concluded 25th Conference of the Parties to the United Nations Framework Convention on Climate Change, the ongoing struggle to operationalize the Paris Agreement, or even the war of words between President Trump and young Swedish activist Greta Thunberg.

A photo of Earth, taken from space.But a much wider spectrum of entities and organizations will have to conduct adaptation and mitigation measures to respond to the intensely local impacts of a changing climate. Among these are what used to be known as wastewater treatment utilities—now often called water reclamation facilities—that may have to deal with (among other things) predicted widespread flooding dangers caused by an increase in larger, more intense precipitation events.

For years, the Milwaukee Metropolitan Sewerage District has been recognized as a “green leader” on a number of fronts, including climate change preparedness. The Marquette University Water Law and Policy Initiative received funding through the MMSD-Marquette WaterCARE grant program to examine and benchmark the District’s considerable climate progress against federal guidance, against actions taken by six peer utilities, and against the ambitious goals it has set for itself (the District seeks, by 2035, to meet 100% of the District’s energy needs with renewable sources, including 80% from internally generated sources, and to reduce its carbon footprint by 90% from its 2005 baseline). Earlier this month, the Initiative completed its work and issued a final report to the District.

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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.

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How Might Courts Interpret the Great Lakes Compact?

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.

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