Will Wisconsin Chart Its Own Course on Environmental Issues?

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.

In a series of recent cases, the United States Supreme Court has sharply restricted the power of the United States Environmental Protection Agency to effectively exercise jurisdiction over natural resources within the states. These include West Virginia v. EPA (endorsing the “major questions doctrine” and restricting EPA’s power to require cleaner energy generation without clear congressional authorization); Sackett v. EPA (limiting the scope of EPA’s authority over “waters of the United States,” and eliminating federal authority over many wetlands); Loper Bright Enterprises v. Raimondo (overruling the Chevron doctrine of deferring to agency interpretations of law in most circumstances); SEC v. Jarkesy (holding that agencies may not employ in-house tribunals, in lieu of jury trials, when seeking civil penalties); and Corner Post v. Board of Governors, FRS (pausing the statute of limitations to challenge agency regulations until the plaintiff suffers injury).

The shift away from federal power elevates the role states can play in charting a course on environmental issues. The Sackett Court emphasized that states, not the EPA, hold the “primary responsibilities and rights . . . to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” Some evidence supports the idea that states will be eager to fill gaps in federal regulation of the environment and corresponding enforcement activities. Wisconsin, for example, has a rich history of water law. All the way back in 1853, the Wisconsin Supreme Court endorsed the principle that “if [a] stream is navigable in fact, the public have the right to use it for the purposes of navigation, and the right of the owner [of abutting land] is subject to the public easement.” Jones v. Pettibone, 2 Wis. 308 (1853). In the 20th century, the state became a national leader in conservation and was at the vanguard of the development of the public trust doctrine.

Even in the 21st century, Wisconsin authorities have sometimes stepped in to protect the state’s natural resources when federal jurisdiction receded. In 2001, for example, the Supreme Court invalidated the “migratory bird rule,” under which federal agencies had exercised jurisdiction over pollutant discharges into certain isolated intrastate waters. The decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, removed a sizeable percentage of wetlands from federal protection. The Wisconsin Legislature acted almost instantly, taking only a few months to enable state control over such discharges by creating a new category of “nonfederal wetlands.” The state law expressly addressed the Supreme Court’s decision. By its terms, it applies when discharges into wetlands are determined “not to be subject to regulation under [the federal Clean Water Act] due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers . . . or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.” Wis. Stat. 281.36(1m)(a)1 (as created by 2001 Wisconsin Act 6). The act effectively restored protection of wetlands that the Supreme Court removed from federal jurisdiction in SWANCC, albeit under state authority. Later, the state implemented an innovative water quality trading program to help curb nonpoint source pollution and meet the state’s aggressive water quality limits for phosphorous pollution. Wisconsin citizens can be proud of the state’s progress in those areas and many others.

But more recent developments are less promising. The ballyhooed “Year of Clean Drinking Water in Wisconsin” was less successful than Governor Evers probably hoped. Similarly, after Assembly Speaker Robin Vos created a “Water Quality Task Force” in 2019, all thirteen of the bills it proposed died in the state Senate. In 2017, the Legislature removed some smaller wetlands from protection under state law, backtracking from the 2001 enactment. And the past few years have been marked by political skirmishes over the power of state agencies to enact groundwater standards for PFAS and other chemicals, disputes over the Department of Natural Resources’ power to require environmental cleanups, and the delayed release of state funds earmarked for remediation activities.

Wisconsin’s uneven record on environmental protection is certainly not unique. But the state–or rather, all the states–are being thrust to the forefront in such matters. Of course, a state will not necessarily regulate anew, or step up enforcement, just because it has the opportunity to do so. And any reckoning with environmental issues will no doubt have to wait until after the November elections currently dominating politics. Whenever the dust settles, it will be interesting to see how states respond in the new era of a somewhat-diminished EPA.

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The Face of the Case: Obergefell Tells How He Became Part of Legal History

James Obergefell grew up in a blue collar, Catholic family in Sandusky, Ohio, got an undergraduate degree from the University of Cincinnati, and became a high school teacher.

“I was deep in the closet,” he said as he told his story during a program Wednesday, Sept. 18, 2024, in the Lubar Center at Marquette Law School. He came out in the early 1990s while he was in graduate school and met John Arthur. Within a short time, they considered themselves married. Legally, they were not – at the time, same sex marriage was not legal anywhere in the United States. But beginning in the mid -990s, they decided they wanted “marriage and everything that came with it,” as Obergefell put it.

Obergefell told Derek Mosley. executive director of the Law School’s Lubar Center for Public Policy Research and Civic Education, who moderated the conversation before a capacity audience of more than 200. how the legal landscape began to change, including a US Supreme Court decision in 2013 that struck down a federal law known as the Defense of Marriage Act. During the same period, Arthur’s health declined sharply after being he was diagnosed with ALS in 2012.

After the Supreme Court decision, Obergefell and Arthur decided to get married. Because Arthur’s health was so precarious, they needed to act quickly. And because legalities involving marriage varied across the country, they ended up taking a medical ambulance flight to the Baltimore/Washington airport in Maryland, where they could have a ceremony without ever getting off the airplane. Three months later, Arthur died.

What emerged from their marriage was a court case focused on whether Obergefell was the surviving spouse legally. And that case was joined with similar cases that ended up before the US Supreme Court, resulting in the landmark decision of Obergefell v. Hodges in 2015 which made same sex marriage legal throughout the United States. Obergefell recounted the events of the day the Supreme Court decision was issued. “I burst into tears” in the courtroom, he said. “For the first time in my life as an out gay man, I felt like an equal American,” he said. The audience applauded when he said that.   

Obergefell’s name became a big part of American legal history. And Obergefell himself moved from being a person of no prominence and no notable involvement as an activist into a continuing spotlight. It made him, as Mosley put it at the Law School program, “the face of the case,” someone who continues to be an advocate for rights of many kinds and someone who tells his personal story openly and with impact. Obergefell said he has realized how “stories matter — stories can change hearts and minds.”

“Going through something like this has a profound impact,” Obergefell told the audience. “It changes you.”

Obergefell said he is still motivated by anger over things he sees as wrong and the need to advocate for the rights of people facing many different situations. He also has less intense involvements, such as co-owning a wine label that has raised more than $250,000 for causes supported by him and the co-owner.

“Nothing makes me happier than to know that young people today are growing up in a world where the question of their right, their ability, to get married and have that relationship recognized is there.” Obergefell said.  “I had the absolute honor and privilege of being part of making things better for people younger than I am.”

Video of the one-hour program may be viewed by clicking below.

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Memory Matters—Recalling Rwanda

“Forgive and forget” — so the saying goes. But in Rwanda, they must forgive yet remember.

Memory matters because:

  • The 1994 Genocide against the Tutsi killed more than one million men, women, and children over four months, making the ability to forget both an imp ossibility and an unspeakable betrayal of the victims.
  • If Rwanda is to continue to exist, memory must be the prerequisite for creating peace in a country where the genocide’s survivors and perpetrators are neighbors, co-workers and even family members who live side-by-side.

The depths of this powerful dual truth connecting memory and genocide echoes the “never again” commitment following the Holocaust. Ironically, humans and history have yet to learn how to stop repeating deliberate and systematic extermination of others because, tragically, hatred is a lesson that is too often taught successfully.

This past July, I experienced firsthand the power of memory for overcoming hatred and creating peace. I was given the opportunity to attend a four-day conference in Rwanda held in conjunction with the 30th anniversary commemorating the Genocide against the Tutsi. Titled “Listening and Leading: The Art & Science of Peace, Resilience & Transformational Justice,” the event was hosted by Aegis Trust, a global nonprofit that two brothers from England launched in 2000 to keep alive the memory of the Holocaust and other genocides. Today the organization is broadly dedicated to predicting and preventing genocide and crimes against humanity. Why did I go to the Aegis Trust conference?

My friend Terri de Roon Cassini, director of the Comprehensive Injury Center and a clinician specializing in trauma care at the Medical College of Wisconsin, received an invitation from Aegis Trust to attend the conference based on MCW’s evolving work in community-based violence prevention in Milwaukee. She invited me to make the 16-hour trip with her colleagues to Rwanda because of my parallel work directing the Andrew Center for Restorative Justice at Marquette University Law School. Restorative justice is partly about remembering so that we can move forward—how acknowledging and responding to harm can lead to healing and safety for those harmed, accountability and compassion for those who harm, and stronger and safer communities.

In that light, I felt compelled to go to Rwanda because its people have something to teach us as Americans grappling with a violence epidemic. Something vital I want to share—especially with those of us in Milwaukee, working to prevent community-based violence. That is my motivation for a series of blogs, beginning with this one that necessarily establishes the sad context of the Genocide against the Tutsi. Captured below is information from the walls of memorial centers, and testimonials from survivors and perpetrators who know all too well that understanding the pathway to genocide is key to prevention.

From peace to hatred

For centuries, 18 different clans constituting the peoples of Rwanda lived peacefully. With a common language, they built a history and culture, sharing and thriving on the rich, fertile hills of their native land in central Africa. But Belgian colonial rule resulting from World War I introduced divisions based on socioeconomic and racial distinctions, categorizing people primarily as Hutu, Tutsi, and Twa. An identity card system initiated in 1932 labeled each person. For three decades, Belgian favoritism of the Tutsi fostered a growing divide. The Hutu widened it after the literal and figurative death of monarchy in 1959, which ushered in Rwandan independence by 1962. Power was in the hands of a highly centralized, single party that created a repressive state with a singular goal: emancipation of the Hutu by exacting revenge against the Tutsi.

Civil unrest became the norm through an incessant propaganda campaign that included elementary school education. Hate speech taught the majority to see the Tutsi as Inyenzi—cockroaches—despite being neighbors, friends, and even family due to generations of intermarriage. Mandates such as the Hutu Ten Commandments dictated absolute rule and superiority of the Hutu while justifying punishment of “traitorous” Hutu who allied with Tutsi or prevented the commandments from being spread as the prevailing ideology.

Hate was effectively learned over the next decades, with the teaching of persecution that included imprisoning, torturing and massacring thousands of Tutsis. By 1973, 700,000 Tutsis were exiled, while thousands of Tutsis and Hutu moderates left Rwanda on their own. Prevented from returning home despite peaceful efforts to do so, many refugees formed a resistance movement known as the Rwandan Patriotic Front (RFP) and invaded Rwanda in 1990.

During the ensuing civil war, the government established internal refugee camps, heightening tension and fear of the Inyenzi. The waralso brought the return of European powers in the form of the United Nations, which tried to negotiate peace with a president who had no control over extremists. Despite hearing of the atrocities, the rest of the world effectively did nothing while all Tutsi were registered via the identity-card system—part of the us-vs.-them impetus of the extremists’ extermination plan designed for ethnic cleansing. This powder keg was lit when the Rwandan president was assassinated on April 6, 1994. The Genocide against the Tutsi was instant and merciless.

Maybe you saw the Don Cheadle film Hotel Rwanda and have a sense of the brutality. Roadblocks went up as militia identified and killed Tutsis. Murderous house-to-house searches led by Hutu extremists armed with machetes, clubs, and guns were widespread. Generations were slaughtered as neighbors, friends, and family members turned on each other. Even women and children were forced to be perpetrators of death and destruction from which no Tutsi was exempt, with Hutu and Tutsi women forced to kill their own Tutsi children. I share the following because we cannot remember what we may not know:

  • 10,000 Tutsis were killed daily—seven per minute—over 100 days that wiped out more than one million people.
  • 300,000+ children were orphaned while 85,000 children became the heads of their household.
  • Homes and infrastructure were demolished; looting, lawlessness, starvation, and chaos were rampant.
  • Tens of thousands were tortured, mutilated, and raped, with thousands of widows being intentionally infected with HIV.

The Genocide against the Tutsi eliminated about 1/8 of Rwanda’s population until the RFP was ultimately able to stop the killing in July 1994—without international assistance. Where would Rwanda go from there—and how? Why should the world take note when it turned the other way during the genocide?

Answers lie in the genocide memorial centers and reconciliation villages Rwanda has created to reflect the people and stories behind the stark numbers shared above—the faces that survivors and perpetrators alike knew and the hard truths they lived, the bases for mustering the power of memory necessary to find a way out of violence.

Survivors such as Freddie Mutanguha, CEO, Aegis Trust, and Jesuit priest Rev. Dr. Marcel Uwineza, S.J., capture the country’s current prevailing sentiment from which we all can learn: “To remember is to act so that those criminal activities never happen again. So, to remember is to do justice.”

I seek to do justice by sharing more of what I learned those four days this past July. From survivor care and commemoration to reintegration and reconciliation, my next blog post will take up how memory matters in furthering a hopeful truth that the late South African anti-apartheid activist, politician, and statesman Nelson Mandela once described: “If you can learn to hate, you can be taught to love.”

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