A Short Rebuttal to “Groundwater: Diminishing Resource, Increasing Conflict”

Recently Wisconsin Lawyer published an article by Christa Westerberg, a lawyer specializing in environmental law based in Madison, titled “Groundwater: Diminishing Resource, Increasing Conflict” which outlines the current state of the public trust doctrine and Wisconsin’s high capacity well regulatory regime. However a few key developments were left out of her analysis which the Great Lakes Legal Foundation believes could drastically change the scope of the public trust doctrine and how groundwater is regulated.

Ms.  Westerberg accurately discussed how Lake Beulah [1] affected the Department of Natural Resources’ (DNR) duty to protect groundwater, and evaluate high capacity wells, under the public trust doctrine. The court cited Wis. Stat. §§ 281.11, 281.12, 281.34, and 281.35 as authority for this duty.[2] While §§ 281.34 and 281.35 regulate high capacity wells specifically, Wis. Stat. §§ 281.11 and 281.12 are prefatory statements that do not explicitly regulate anything. The Lake Beulah Court haphazardly expanded the public trust doctrine to cover groundwater, and high capacity wells, by conflating the public trust doctrine with DNR’s “waters of the state” powers.[3] This conflation allowed the court to ignore the bedrock principle that has long tethered the public trust doctrine, navigability.

The state supreme court reemphasized the importance of navigability to the doctrine in their ruling in Rock-Koshkonong.[4] Writing for the court, Justice Prosser made clear that because the doctrine is rooted in the Wisconsin Constitution it is, “important to understand its history and its core principals so that it is properly interpreted.” Justice Prosser embarked on a historical evaluation of the doctrine, including its foundations in the Northwest Ordinance, and stated that “the public trust doctrine is premised upon the existence of ‘navigable waters.’”[5]

The Court firmly rejected DNR’s attempt to sever the public trust doctrine from the concept of navigability.

The DNR’s position seeks to extend its public trust jurisdiction beyond navigable   waters to non-navigable waters and land. Wetlands are often not ‘navigable in fact.’ Non-navigable land is by definition not navigable and may not be marshy or ‘wet.’ Eliminating the element of ‘navigability’ from the public trust doctrine would remove one of the prerequisites for the DNR’s constitutional basis for regulating and controlling water and land.[6]

Concluding, the court stated that DNR, “inappropriately relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark.”[7] This same rationale applies to ground water, because it is not navigable in fact, it cannot be regulated through the public trust doctrine. Justice Prosser’s discussion of the public trust doctrine has helped clarify any confusion, created by Lake Beulah footnote 29, that the public trust doctrine was extended to regulate groundwater.

The legislature also took action to remedy recent court decisions that took expansive interpretations of agency authority. The day Governor Walker took office he signed an executive order which called a special session of the legislature to pass reforms to revitalize Wisconsin’s economy. One piece of legislation that was drafted at the request of Governor Walker and passed by the legislature was 2011 Act 21. Act 21, in part, requires that an agency have explicit statutory or regulatory authority to place a condition on any license issued by the agency.[8] When the bill was introduced, Governor Walker noted that the purpose of the bill was to stop state agencies from regulating based on general duties provisions and prefatory language.[9] Act 21 prohibits DNR from using the prefatory language and general duties provisions (Wis. Stat. §§ 281.11 and .12) to regulate high capacity wells.

Rock-Koshkonong and Act 21 have effectively overturned the Lake Beulah Court’s haphazard expansion of the public trust doctrine and deserve to be considered when highlighting recent legal developments concerning high capacity wells. The Great Lakes Legal Foundation is working to clarify these points of law. The Foundation is currently a party to New Chester Dairy LLC v. DNR, No. 14-CV-1055 (Outagamie Circuit Ct.) where it is arguing in favor of, in much greater detail, the points made in this post. For more information about the case and the Foundation’s involvement in this case click here.

[1] Lake Beulah Management Dist. v. State Dept. of Natural Resources, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73.

[2] Id., ¶39.

[3] Lake Beulah, 355 Wis. 2d 47, ¶39, n.29.

[4] Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800.

[5] Id., ¶¶74-76.

[6] Id., ¶77.

[7] Id., ¶150.

[8] Wis. Stat. §227.10(2m); Wis. Stat. § 227.11(2)(a)1.-2.

[9] Walker, Regulatory Reform Informational Paper, (Dec. 21, 2010). http://walker.wi.gov/newsroom/press-release/regulatory-reform-info-paper.

Posted in General

White House and EPA at odds with U.S. Army Corps of Engineers over new “Waters of the U.S.” rule

After months of the Obama Administration and EPA arguing the new Waters of the United States rule (for our earlier story on the rule click here) as scientifically and legally sound, a series of memos from the Army Corps of Engineers have surfaced challenging the Administration’s assertions.

Current and former Army Corps of Engineers (Corps) leaders have begun to speak out against the arbitrariness of the way the environmental standards for the rule were created (the Corps wants more extensive environmental standards). The Corps so strongly disagreed with the rule that the agency requested that all references to the Corps be removed from the rule and all supporting documentation.
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Posted in Clean Water Act, Environmental Protection Agency

Wisconsin Attorney General Sues EPA Over “Waters of US” Rule

Attorney General Brad Schimel announced that Wisconsin has joined eight other states suing the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to strike down EPA’s new Waters of the United States rule. The suit was filed in the U.S. District Court for the Southern District of Georgia. A parallel suit has been filed in the U.S. District Court of North Dakota.

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Posted in Clean Water Act

Michigan v. EPA: SCOTUS rules EPA must consider costs in initial decision to regulate.

Scalia, writing for the Court, stated that “[EPA] gave cost no thought at all, because it considered cost irrelevant to its initial decision to regulate,” he continued, writing, “It is unreasonable to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore cost.” With that the Court found the Obama Administration’s most monumental environmental regulation to date unreasonable and remanded to the D.C. Circuit Court of Appeals.
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Posted in Clean Air Act, Environmental Protection Agency, General

SCOTUS strikes blow for private property owners

The Supreme Court struck a great blow in favor of property rights in Horne v. U.S. Department of Agriculture, which came out yesterday (June 22). The case involved family farmers, Marvin and Laura Horne of California, who grow grapes and make raisins.  Due to the Agricultural Marketing Agreement Act of 1937, a New Deal era law, the Hornes, and all raisin producers, are required to turn over a certain percentage of their crop to the federal government, as determined by the Raisin Administrative Committee (yes, that is a thing). The purpose of these confiscations is to inflate the price of raisins and stabilize the market. The federal government then uses the raisins in a variety of ways including exporting them overseas or using them in domestic school lunch programs.  If the crop is not turned over, then the withholding farmer is be forced to pay the federal government the monetary equivalent of the withheld crop plus fines. To boot, prior to this case farmers were not reimbursed for the crop they were forced to turn over.

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Posted in United States Supreme Court

EPA proposes new fuel efficiency standards for trucks

The Obama administration announced a new regulatory push last Friday (June 19th) on makers of heavy-duty trucks to increase fuel efficiency by up to 24 percent. The proposed rule from the Environmental Protection Agency (EPA) and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) would require that freight-hauling tractor trailers reduce fuel use and greenhouse gas emissions by 24 percent and vocational vehicles, pick-up trucks, and light vans reduce by 16 percent by 2021. This is on top of EPA’s current rule which requires heavy-duty trucks in model years 2014-2018 to improve fuel economy by up to 20 percent.

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Posted in Climate Change, Environmental Protection Agency

President Obama’s call to regulate airplane emissions may cause major challenges for the airline industry

The Environmental Protection Agency (EPA) has declared that airplane carbon emissions present a hazard to human health because of their contribution to global warming. Due to this finding, EPA is required to develop new regulations for the industry.

EPA officials have stated they will not begin work on independent regulations until after the aviation industry finishes international negotiations on limiting carbon emissions. These negotiations have been taking place within the United Nations’ International Civil Aviation Organization. The negotiations began in 2009 and are scheduled to be completed in early 2016. However, environmental groups are concerned that a weak set of regulations will come out of UN negotiations and have urged EPA and the White House to promulgate an independent, stricter, national standard.

The aviation industry contends that they have taken steps independent of the government to increase fuel efficiency and police carbon emissions. Over the last half century fuel efficiency of commercial airplanes has risen 70 percent. Furthermore the industry has independently worked to increase efficiency and reduce fuel use as well as invest in carbon-neutral and biofuel technologies that may be able to be used as long-term alternatives to jet fuel. Commercial airlines also have voluntarily committed to limit their growth of carbon emissions to two-percent a year and to cut emissions levels in half of their 2005 levels by 2050. Therefore the industry argues increased regulation is not necessary. Emissions from air traffic make up approximately two-percent of global emissions, but EPA notes that as air travel becomes more affordable to larger swaths of the global population, the industry’s proportion of emissions will increase faster than other sources. Industry experts raised the concern that any rulemaking will increase already high costs, which may be passed onto consumers.

Due to EPA’s time table of when to start the rulemaking process, a final rule likely will not be promulgated until after the end of President Obama’s term.

Posted in General

U.S. Court of Appeals denies petition for writ of prohibition on EPA’s Proposed Clean Power Rule

In In Re Murray Energy Corp. Judge Kavanaugh wrote the majority opinion for the court which held that the petitioners’ petitions for review and petition for a writ of prohibition are denied because of a lack of finality.[1]

On June 8, 2014, the Environmental Protection Agency (EPA) proposed the Clean Power Plan which, if implemented as proposed, would force existing power plants to greatly reduce the amount of carbon emissions from their plants. EPA has argued that they have authority to restrict emissions under Section 111(d) of the Clean Air Act.[2] Subsequently EPA has received over two million comments and the final rule is set to be released this summer.

In opposition the proposed rule the petitioners’ filed a lawsuit requesting a writ of prohibition (basically requesting that the court direct EPA to not promulgate the rule because it is unlawful for them to do so). Judge Kavanaugh characterized this as “asking [the court] to review the legality of a proposed EPA rule so as to prevent EPA from issuing a final rule.”[3] Kavanaugh determined the court does not have authority to review proposed rule due to a lack of finality.[4]

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Posted in Clean Air Act, Energy, Environmental Protection Agency, General

EPA finds “fracking” poses no widespread harm to groundwater

A rare piece of good news for Wisconsin businesses out of the EPA yesterday (June 4, 2015). After years of study the EPA concluded that fracking poses no “widespread, systematic harm to drinking water.” The whole study can be viewed here. Hydraulic fracturing (fracking for short) is a technique used by natural gas and oil companies to fracture rock by using hydraulically pressurized water, sand, and chemicals injected into a well to release oil and natural gas that had been previously trapped.

Fracking has become controversial in recent years due to the proliferation of the industry into more populated areas. This expansion has helped reinvigorate the United States’ domestic energy production and economic growth allowing the U.S. to become one of the largest natural gas producers in the world. However many have long been concerned about the effects fracking may have on groundwater.

While Wisconsin does not have any natural gas or oil fields within its borders to frack, fracking has been an economic boon for Wisconsin. This is because Wisconsin is one of a few suppliers of a necessary material for fracking, silica sand. Western Wisconsin is a large provider of silica sand. Silica sand is what keeps the fissures created by the hydraulic fracking open, which allows the oil or gas to be released. Over the last four years it is estimated that silica sand mining has created thousands of jobs, more tax revenue, and new investment in the state.

However local governments have been placing moratoriums permitting new silica sand mines, in part, due to concern about directly supporting an industry that may pollute drinking water. While the EPA does note that there is some risk involved with fracking when wells are inadequately cased and waste-water is improperly treated or improperly discharged, the fears created by films like “Gasland” are largely unfounded. Supporting this notion the EPA stated that while there were “specific instances” where fracking “led to impacts on drinking water resources, including contamination of drinking water wells….the number of identified cases…was small compared to the number of hydraulically fractured wells.” It will be interesting to see if Wisconsin localities lift their moratoriums or change their regulatory behavior in light of this study.

Posted in General

EPA Issues “Waters of the United States” Final Rule

Last Wednesday, (May 27, 2015) the Environmental Protection Agency (EPA) released its finalized Waters of the United States rule just over a year after it released its proposed rule. This rule was proposed to clarify the EPA’s jurisdiction over the nation’s waterways under the Clean Water Act after the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers[1] and Rapanos v. United States[2].

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Posted in Clean Water Act, Environmental Protection Agency, Regulatory Train Wreck, Water