Environmental

This article was originally posted July 15, 2021, in the Marquette University Law School Faculty Blog. It is reprinted here with permission. About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward courts, the legislature, and the governor.” Recently the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative…
Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, or the State Bar of Wisconsin. As the world was besieged by COVID-19 in the first half of 2020, large swathes of the economy shut down. International travel practically ceased, events were canceled, and factories temporarily shut down to stop the spread of disease. Many people began working from home, cutting out their daily commute. One of the few positive news stories coming out of those early days of the pandemic was the drop in fossil fuel…
In connection with ExxonMobil’s annual meeting held on May 26, 2021, three dissident directors nominated by hedge fund Engine No. 1 were elected to ExxonMobil’s board, beating out the incumbents. Engine No. 1 had proposed the director nominees (along with one other) to help lead ExxonMobil to long-term shareholder value creation, including through “net-zero emissions energy sources and clean energy infrastructure.”1 The fact that these dissident directors won the election over the incumbents indicates the increasingly broad shareholder support for clean energy to reduce climate change. Momentum Builds for ESG ExxonMobil is not alone in facing an investor challenge…
Climate change is one of the most significant public health threats of our time. The health impacts of climate change are well known, and include heat-related illness, increased respiratory dis­ease, vector-borne illness, zoonotic disease, and water-borne disease. In addition, climate change will increase the frequency and intensity of natural disasters that pose multiple threats to public health, including physical harm from flooding and fire, respiratory illness from wildfire smoke and mold, food insecurity, lack of access to clean water, displacement, disruptions to needed medical care, and depr​ession and anxiety. These impacts inequitably affect low-income communities and communities of color. Betsy 
Headwaters of Three Springs near Sister Bay. Photo by Joanne Kline. Wetlands are critical ecosystems that help reduce flood severity, filter polluted runoff before it reaches open water, and provide waterfowl and wildlife with food and shelter. In 2020, rollbacks in federal protection of waterways and wetlands under the Clean Water Act left millions of wetland acres in Wisconsin vulnerable to development. Although Wisconsin law protects many waterways and wetlands that are no longer covered by federal regulation, continued weakening of state protections could lead to wetland loss around the state. Wisconsin’s Green Fire: Voices for Conservation (WGF) and The
Carbon farming markets are emerging as an appealing prospect to reverse the flow of carbon dioxide into the atmosphere. They are also a breath of fresh air in the metaphorical sense because of the unusual alliances and rare bipartisan support they are attracting. Agricultural groups and environmental advocates have coalesced around the prospect that farming can be a meaningful part of the climate change solution. While a small private market for carbon farming practices already exists, the seeds are being planted to explore the prospect on a much bigger scale at the state and federal levels. Jane Landretti, Drake…
The agricultural industry is no stranger to federal regulation. Although the industry avoids regulation in several legal realms through federal safe harbors, there is both a cabinet position and an entire agency responsible for the industry’s financial well-being.1 The industry heavily relies on federal support through crop insurance, conservation payments, and commodity programs.2 Although some may fear that the Biden Administration may result in increased regulation for the ag industry, many expect President Biden to look to the industry as a partner – rather than an enemy – in battling climate change.3 President Biden’s campaign website states…
As discussed previously in this blog,1 flooding continues to present a significant challenge across Wisconsin. Directing and controlling the drainage of surface water is a challenge that developers, farmers, and other property owners must grapple with. But these parties must be aware of the “reasonable use” rule and potential consequences for diverting surface water to neighboring properties. The increase in higher intensity storm events is sure to make the reasonable use doctrine a more prevalent legal concept in Wisconsin as property owners grapple with protecting their lands from flooding. Common Enemy Rule Prior to 1974, Wisconsin utilized the “common…
Over the past decade, Wisconsin residents from Coon Valley to Darlington, Green Bay to Madison, and Mazomanie to the Town of White River, have evacuated their homes, been left stranded on flooded streets, and even lost their lives during record rainfall. In 2017, floods in southwest and west central Wisconsin were declared a federal disaster. Western Wisconsin was hit by deadly 2018 storm events. And, tragic floods – technically classified as “500-year floods” – struck our northern counties i​n 2012, 2016, and 2018.1 Floods cause death and significant property damage and can exacerbate pollution and waterborne illness.…
The U.S. Supreme Court’s decision this July in McGirt v. Oklahoma1 has been hailed as one of the Court’s most important Indian law opinions in the past half-century. While the question presented in the case was limited to whether the State of Oklahoma properly exercised criminal jurisdiction in prosecuting McGirt, even before the decision came down, many were declaring the potentially far-reaching repercussions of the case. The Decision The McGirt decision both was and was not a watershed moment in Indian law. On one hand, the case affirmed the full extent of the Muscogee (Creek) Nation’s 1866 reservation. The…
With more than 15,000 lakes, 43,000 miles of rivers, and 659 miles of Great Lakes shoreline, Wisconsin is fortunate to have an abundance of water resources.1 As Aesop’s famous proverb states though, “it is possible to have too much of a good thing.” In stark contrast to the “mega drought” emerging out west, Wisconsin is experiencing record high water levels in both the Great Lakes and inland sources such as groundwater. Through August, Lake Michigan has set a record high water level every month of 2020. Current data gathered from NASA’s GRACE-FO satellites demonstrate that Wisconsin is within the…
The 17 million acres of forests in Wisconsin – covering nearly half of the state – provide significant ecological, social, and economic benefits to the state and its residents. Wisconsin has been a national papermaking leader for more than six decades, and the forest industry contributes more than $24 billion a year to Wisconsin’s economy. Forestry’s economic impact reaches every corner of the state, and the forest industry is the top employer in 10 Wisconsin counties. Wisconsin’s forests are a renewable resource that is growing in volume each year. More than 7.4 million acres of forestland in Wisconsin have been…
The killing of George Floyd by Minneapolis police in May 2020 led to calls for police reform and focused attention on other policy areas where racial disparities exist, including racial disparities in environmental impacts and corresponding health outcomes. Wisconsin law does not directly address race-based environmental disparities, though the concept of environmental justice has been recognized for decades. This blog reviews the state of environmental justice in Wisconsin, including areas for future reform. What Is Environmental Justice? Environmental justice is defined by the U.S. Environmental Protection Agency (EPA) to mean the fair treatment and meaningful involvement of all people regardless…
On March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a memorandum announcing that, during the COVID-19 pandemic, it would exercise enforcement discretion if regulated entities violated certain environmental obligations due to the pandemic. The press cast this temporary policy in dramatic headlines, such as The Hill’s article, “EPA suspends enforcement of environmental laws amid coronavirus.” The coverage was consistent with the broader narrative of the Trump administration’s ongoing work to limit the reach of certain environmental regulations, and the progressive weakening of EPA’s enforcement efforts. The temporary policy is less dramatic than the initial headlines…
Environmental Law Section Blog April 17 2020 Real-time Control of Stormwater Management Systems David A. Strifling The University of Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, an article that addresses challenges to effective stormwater management. David Strifling, one of the article’s authors, provides an excerpt of the article. This article was originally posted April 9, 2020, in the Marquette University Law School Faculty Blog. It is reproduced here with permission. edu david.strifling marquette David Strifling, Marquette 2004, is a professor at Marquette University Law School in Milwaukee, where…
Wis. Admin. Code NR § 2.20 is not a new rule – it was first published in 1976 – and its validity has been challenged before.1 Administrative agencies have the powers delegated to them by the Wisconsin Legislature,2 and may only promulgate administrative rules that are authorized by statute.3 The Legislature has only authorized three methods by which an agency may decide contested cases under Wis. Stat. section 227.46: direct that the hearing examiner’s decision be the agency’s final decision; direct that the record be certified to it without an intervening proposed decision; or direct that the…