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

In the wake of the U.S. Supreme Court’s
Sackett v. EPA decision,​1 the landscape of wetland protections in Wisconsin has changed. While Wisconsin boasts robust wetland protection statutes
compared to other states, a significant exemption to the permitting regime within those statutes hinges on the federal definition of wetlands. The “nonfederal exemption,” established by
2017 Wisconsin Act 183, is an exemption to the permit requirement when filling or discharging into certain wetlands that are not covered
Continue Reading An Uncertain Future: 'Sackett's' Impact on the Nonfederal Wetland Exemption in Wisconsin

The recent proposal by the Environmental Protection Agency (EPA) to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the federal Comprehensive Environmental Response, Contamination, and Liability Act (CERCLA or “Superfund”) promises to provide greater information concerning the release of PFAS into the environment, as well as powerful tools to require the cleanup and recover costs for such releases.

However, because of the ubiquity of these so-called “forever chemicals,” the proposed designation also raises a number of
Continue Reading Implications of the EPA’s Proposed Rule Designating PFAS as Hazardous Substances

Nitrate and nitrite are about to reemerge as groundwater and drinking water chemicals of concern.

Our new research reveals that current nitrate and nitrite drinking and groundwater standards do not reflect a true weight of evidence analysis of the peer-reviewed literature and government documents. As a result, such noteworthy authorities as U.S. Environmental Protection Agency (EPA), the World Health Organization, California EPA, Health Canada, Minnesota Department of Health, and Wisconsin Department of Health Services rely on a curated list
Continue Reading History Judges Nitrate and Nitrite Standards a Scientific Failure

In 2010, Wisconsin passed some of the earliest and most comprehensive phosphorus regulations in the nation. Environmental Protection Agency (EPA) holds up Wisconsin as a model for
Region 5 states (the upper Midwest).

Wisconsin is one of just four states that has adopted total phosphorus and total nitrogen criteria for two or more waterbody types.1

In February, a statewide conference brings together academics, water and agricultural professionals, agency representatives, farmers and producers, lawyers, and lawmakers to evaluate the
Continue Reading Analyzing the Impact of Wisconsin’s Phosphorus Rules on Water Quality

“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