Environmental Law Section Blog | Environmental Law Section

This blog covers all aspects of environmental law, including changes in federal and Wisconsin statutes, appellate and Supreme Court decisions, general developments, practice tips and pointers, and more. Published by the State Bar of Wisconsin's Environmental Law Section.

This section promotes communication and cooperation among private, public interest, in-house and government attorneys on issues that affect the environment and related law. The section sponsors CLE seminars and has an elist.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Section website: https://www.wisbar.org/forMembers/Groups/Sections/EnvironmentalLawSection/pages/home.aspx

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By: Environmental Law Section | State Bar of Wisconsin​

Blog Authors

Leslie A. Freehill
David A. Strifling
Alan Borsuk
James Bridges
Robert D. Lee
Vanessa D. Wishart
Sara Fox
Ameya Gehi
Andrea Gelatt
Michael J. Cain
Kassie Lang
Robert Lundberg
Richard Manthe
Christina Puhnaty
Jane R. Landretti
Hannah S. Richerson
Caleb Tomaszewski
Adam Voskuil
Christa Westerberg

Latest from Environmental Law Section Blog | Environmental Law Section

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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…
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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…