Environmental Law Section | State Bar of Wisconsin​

The Environmental Law Section promotes communication and cooperation among private, public interest, in-house and government attorneys on issues that affect the environment and related law.

The State Bar of Wisconsin offers its members the opportunity to network with other lawyers who share a common interest through its 24 sections. Learn more at http://www.wisbar.org/groups.

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…
Following the “Year of Clean Drinking Water” declared by Gov. Tony Evers in 2019, the statewide focus on water quality is set to continue into 2020. In this current legislative session, a host of proposals concerning water quality are before the state Legislature, some of which would affect the processes for establishing certain types of water quality standards in Wisconsin. Three of these are summarized below. LRB-4806/1: Public Comment Period for Establishing Groundwater Standards This bill is one of 13 proposals generated by the Speaker’s Task Force on Water Quality, which held 14 public hearings around the state in 2019.1 The…
In September 2019, the State Bar of Wisconsin hosted the 31st Annual Environmental Law Update. This event provides insight on recent developments in environmental law both in Wisconsin and nationally, and further forecasts upcoming changes or areas of focus for litigators, policymakers, consultants, and other pertinent professions. This year, I was drawn to the Update to find out where the Wisconsin Department of Natural Resources (DNR) planned on directing their time and resources. Todd Ambs, the Assistant Deputy Secretary of DNR, gave the keynote address and reviewed the department’s past year, while outlining future directives. Prioritized: Drinking Water It…
Note: This article was originally posted Nov. 7, 2019, on the Marquette University Law School Faculty Blog. 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…
State-initiated civil actions to address per- and polyflouroalkyl substances (PFAS) contamination have proliferated throughout the country in recent years.1 In perhaps the most prominent of these actions, Minnesota sued 3M for PFAS contamination emanating from one of its manufacturing plants into the Twin Cities and surrounding areas.2 That case was settled in early 2018, with 3M agreeing to pay $850 million into a special fund established specifically to address the contamination. As the full extent of PFAS contamination in Wisconsin becomes clearer, state action against manufacturers and other potentially responsible parties becomes more likely. However, the Wisconsin Legislature…
For the last 25 years, an Environmental Protection Agency (EPA) guidance document force a critical choice when it came to federal hazardous air pollution requirements under the Clean Air Act. The “once in, always in” policy required sources to either restrict their emissions below the major source thresholds before the standards took effect, or to apply more rigorous standards forever – regardless of whether future emissions fell below the major source threshold. Last year, the EPA revoked this policy through subsequent guidance, and more recently published a proposed rule codifying the new approach. In addition, the proposed rule addresses a longstanding remand…
“Except as in compliance with (the Clean Water Act), the discharge of any pollutant by any person shall be unlawful.”1 Although this definition of a Clean Water Act (CWA) violation seems broad and straightforward, it is less clear that the CWA regulates indirect discharges, like pollutants that travel through groundwater. Regulation of groundwater pollution is traditionally left to state government as the CWA focuses on point source pollution of the nation’s surface waters. The CWA Regulates Indirect Discharges: Maui In Hawai’i Wildlife Fund v. Maui, the Ninth Circuit held that CWA violations occur when “the pollutants…