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

“Environmental law is dead. Long live environmental law.”

This proclamation popped into my head while listening to the keynote speaker, Robert Kaplan, EPA Region 5 Regional Counsel – at the 34th Annual Environmental Law Update on Sept. 15 from State Bar of Wisconsin PINNACLE® – no doubt in part due to the passing of Queen Elizabeth II just a few days prior.
The Keynote
In his keynote address, Kaplan explained that when he was in college, he thought there
Continue Reading The Death of Environmental Law has Been Greatly Exaggerated

Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin. In 2022, the direct effects of climate change are now obvious and familiar. Heightened intensity and frequency of extreme weather events, rising sea levels, and wildfires are frequent flyers in today’s news cycle. Environmental law, in seeking to mitigate environmental degradation, is the legal medium that most directly responds
Continue Reading Immigration Law Should Be Updated to Better Protect Climate Refugees

“I don’t have the trust with (Wisconsin) DHS.” – Wisconsin Natural Resources Board member Terry Hilgenberg, Feb. 23, 2022.1
On Feb. 23, 2022, the Wisconsin Department of Natural Resources (DNR) regulatory policy-setting body, the Natural Resources Board (NRB), met to discuss three proposed final rules to regulate per- and polyfluorinated substances (PFAS) in drinking water, wastewater (through surface water criteria), and groundwater.

In that meeting, the NRB unilaterally increased the proposed final drinking water standard from the Wisconsin
Continue Reading Parts Per Quadrillion: Public Health Messaging and PFAS

The opinions in this article reflect the views of the author, not the author’s employer or the State Bar of Wisconsin Environmental Law Section. Wisconsin’s Public Trust Doctrine provides that the navigable waters of the state and the carrying places between them are “common highways and forever free” for the use and enjoyment of all citizens.1 State law has long required and protected the public’s right to get to the water, but many people are unaware that
Continue Reading Public Access to Water and Access Abandonment Requests

I spend my weeks surrounded by engineers working in wastewater plants. And I work with regulators trying to find the right numbers or standards to ensure we have “clean” water. Both are tied by regulations and laws that demand strict compliance, and are used to “industrial” solutions – measuring end of pipe levels of nutrients and pollutants to confirm those numbers are below established thresholds. If a number is off, you turn a wheel or add some chemical based
Continue Reading Help Clients with Environmental Issues by Using the Tools of Our Trade

​The regulation of Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA) in Wisconsin drinking and surface waters advanced during a Feb. 23 meeting of the Wisconsin Natural Resources Board (NRB), while groundwater regulation for these compounds stalled.1

PFOS and PFOA are part of the group of Per- and Polyfluoroalkyl Substances (PFAS) that were widely used from the 1940s through the early 2000s in numerous consumer products such as nonstick cookware, food packaging, stain resistant coatings, and water repellants. PFAS
Continue Reading An Update on PFAS Regulation in Wisconsin

Simply put, carbon capture is a collection of technologies that capture carbon – as to limit the amount of carbon dioxide in the atmosphere. Carbon can be captured from a
point source of emissions, like a power plant or industrial facility. Or carbon can be captured
directly from the atmosphere. ​Once captured, carbon can be
permanently stored underground or transformed into
useful products (aka “carbontech”). For example, captured carbon could be used to create
cement, textiles, carbon
Continue Reading How Wisconsin Can Profit from Carbon Capture

Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin.It’s difficult to contemplate seemingly insurmountable environmental justice issues – think climate change, lead in drinking water and paint – without feeling like individual action could be futile. Although each individual needs to arrive at their own motivation for action, one path forward is to start with discrete, local steps.The State
Continue Reading Your Voice, Your State Bar: Diversity & Inclusion in Our Environmental Law Section

Since graduating from law school and moving to Milwaukee in August, I’ve met several longtime residents who didn’t know Summerfest is not on a natural land formation – it’s built on lakebed fill – or that Lakeshore State Park is also built on lakebed fill, or that Bradford Beach and parts of Lincoln Memorial Drive are located on land that used to be covered by water.Lakebed Fill and the Public Trust DoctrineWhat do all these spaces have in common?
Continue Reading Public Rights on Milwaukee’s Fresh Coast: Issues with Lakebed Fill

This article was originally posted Dec. 10, 2021, in the Marquette University Law School Faculty Blog. It is reprinted here with permission.

When it rains or snows, the resulting runoff can collect pollutants including salts, fertilizers, chemicals, oils, and sediment, among other things. These contaminants have the potential to impair surface water and groundwater that receive the runoff. Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization,
Continue Reading Interdisciplinary Research in Stormwater Management

The National Environmental Policy Act (NEPA) requires federal agencies to take “a ‘hard look’ at the environmental consequences of proposed federal actions.

Thus, effects analyses are at the heart of the statute. The scope of what effects must be considered under NEPA, however, has been at issue recently.
Changes under the Trump Administration
Pursuant to the deregulatory agenda of the Trump Administration, the Council of Environmental Quality (CEQ) made comprehensive changes to nearly every section of
Continue Reading Taking a ‘Hard Look’ at Climate and Environmental Justice Effects under the National Environmental Policy Act

Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin.

Climate change has significant implications for a vast array of human rights.

A recent report from the Intergovernmental Panel on Climate Change reiterated the damage that climate change is wreaking and the urgent need for action to keep the earth from warming even more drastically – which would also
Continue Reading Climate Justice: Human Rights and Climate Change Litigation

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
Continue Reading The Wisconsin Supreme Court Slows Down the ‘Quiet Revolution’

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.

Continue Reading The Debate on COVID-19 and Force Majeure in Energy Contracts

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,
Continue Reading Sun and Shade are Vital Tools for Mitigating Health Impacts from Climate Change

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
Continue Reading Wisconsin’s Wetlands & Waterways and the WOTUS Rule