The Slow Erosion of Environmental Protections in Wisconsin
This is the first piece in the series Ground Truths: Stories from Wisconsin’s Frontlines of Environmental Action. This six-episode podcast series highlights environmental justice issues across the diverse communities and landscapes of Wisconsin, from Milwaukee to the Northwoods. The series is supported in part by a grant from Wisconsin Humanities, with funds from the National Endowment for the Humanities. Series editors: Carly Griffith (lead), Clare Sullivan (lead), Ben Iuliano, Justyn Huckleberry, Marisa Lanker, and Juniper Lewis.
What are the mechanisms that allow the government to protect communities and landscapes? Why should Wisconsin residents care about administrative agencies, permits, cleanup measures, and rulemaking in legislative committees?
To help us answer those questions, we spoke with Tony Wilkin Gibart, executive director of Midwest Environmental Advocates, a nonprofit law center based in Madison, Wisconsin; Doug Oitzinger, a city council member in Marinette, Wisconsin; and Lynn Utesch, an organic beef farmer in Kewaunee County, Wisconsin.
Over the course of this episode, we discuss a few of the key environmental protections in Wisconsin, some of the ways in which they are currently under threat, and how the decline of these protections has impacted two communities in Kewaunee County and Marinette County.
Stream or download our conversation here.
This transcript has been edited for length and clarity.
Carly Griffith: What’s an example of an environmental protection that industry has opposed in the state of Wisconsin?
Tony Wilkin Gibart: One example is a lawsuit by Wisconsin Manufacturers and Commerce (WMC). They are the state’s most powerful business lobby; they support anti-regulatory laissez-faire policies. They are suing the Department of Natural Resources (DNR) in the state of Wisconsin over the state’s Spill Law. That’s a law that was developed in 1978. The law is as simple as: if you make a mess, if you release toxins into the environment, you are responsible for cleaning them up. WMC’s lawsuit attacks the very heart of that law by saying that the state must go through the rulemaking process to specify in detail the quantities and concentrations of every substance that it considers a toxin. That’s not how the law has operated for 40 years. The flexibility that the legislature gave the DNR back in 1978 when it passed that law is essential for the state to respond to all kinds of toxic spills, but especially emerging contaminants like PFAS, which are the toxins found in Teflon and other consumer products. We know that they are toxic in very, very small quantities. There is no other environmental law or regulation that currently applies to PFAS contamination other than the Spill Law. This lawsuit is an attack not only on the only existing regulatory authority that we have to address PFAS contamination in Wisconsin, but it is also an attack on the fundamental workings of the state’s Spill Law, the most basic law that protects Wisconsin communities from industrial toxic contamination.
Midwest Environmental Advocates is involved in that lawsuit, and we are representing five interested parties, including a community leader from Marinette, Wisconsin, where PFAS contamination is a very acute issue given the pollution that has come from a firefighting foam manufacturing facility in that area. We also represent a citizen group in Wausau, Wisconsin that used the Spill Law to get redress over decades of industrial contamination in their neighborhood. If the lawsuit were successful, the authority that the state has used to bring some measure of relief to folks in Marinette and to help residents in Wausau would be eliminated—it would go away. It doesn’t look like a frontal assault on the state’s authority to deal with toxic contamination, but in reality, that’s what it is.
CG: Can you tell me how you came to be involved in this WMC case with Midwest Environmental Advocates?
Doug Oitzinger: I’ve been involved in a local advocacy group. We call ourselves Save Our Water, or S.O.H2O. This is about PFAS and the contamination caused by Tyco Johnson Controls, which has contaminated many square miles of groundwater, directly contaminating private wells in the town of Peshtigo and causing a contamination plume that is under about half of the city of Marinette’s geographic area. Fortunately, we draw our water out of the bay of Green Bay, so we haven’t been poisoning ourselves like those unfortunate folks in the town of Peshtigo who had their private wells contaminated. My aldermanic district encompasses the worst contamination in the city and the source of the contamination, the Tyco Fire Technology Center.
Currently, in the state of Wisconsin, there are no regulations dealing with PFAS. There are no set standards. There are no federal standards. The EPA has established a health advisory limit of 70 parts per trillion for two of the compounds, PFOA and PFOS. That’s not an enforceable standard. Wisconsin doesn’t have an enforceable standard. The only mechanism by which communities such as ours, or individuals such as myself, have any recourse in Wisconsin is through something we generically call the Spill Law. Under that law, the DNR has the authority to intervene and do an investigation and direct cleanup, specifically for spills of a broad variety of contamination situations. The important words here are “hazardous material” and “toxic material,” and PFAS clearly falls into that category of materials that can be entered into the environment. Without the Spill Law, there is no authority right now for the DNR to be interacting with Tyco Johnson Controls and helping our two communities deal with the contamination problems we have. The attempt to overthrow this Spill Law is a direct threat to everything that we’ve been doing up here to try to mitigate the damage from this terrible pollution that will be with us, in all honesty, forever.
CG: As someone who is both a resident of the community where this contamination has occurred and also currently holds political office, what is at stake in this decision?
DO: We’re a small community, fewer than 11,000 people in the city of Marinette proper. If the Spill Law were to suddenly go away, you’re asking a very small community to try to find the legal and technical resources to deal with the contamination that’s in its boundaries, and you’ve even got less resources next door at the town of Peshtigo. How do communities take on something like this on our own? We have to remember that what caused this pollution in our community is a multinational corporation headquartered in Ireland. Their annual business is measured in the billions of dollars. The city budget is $14 million. We’re up against a giant. I love the story of David and Goliath, but usually in the real world, the giant wins. When it comes to things like environmental protection, the corporate giant wins: they delay, they defer, they deflect, and they deceive. It is very, very difficult, without deep pockets, to fight that. In a small community such as mine, we just don’t have the resources to fight that battle without the help from the state of Wisconsin. Everything is on the line in this court decision. We’re citizen activists—we do it on our own nickel, we don’t raise money to do this. We do it out of our own concern for the community, concern for ourselves, for our children, for the environment.
CG: Can we talk a little bit about the source of the Wisconsin Department of Natural Resources’ (DNR’s) authority over environmental regulations?
TWG: We can’t separate basic environmental laws and their effectiveness from the effectiveness of administrative agencies. In Wisconsin, the main administrative agency is the Department of Natural Resources. That is because environmental laws attempt the very difficult task of preserving ecological stability in the face of the countless ways that we, as human beings, interact with the environment. We have the complexity of everything that we are doing on a large scale, and then ecological systems that are themselves complex. The task of environmental law is very difficult—it has to deal with that level of complexity, and that’s not something that can be spelled out in legislation. By itself, a legislature can’t pass a new law every time we develop a new way to pollute the environment. They can’t spell out in the state statutes every possible condition that might need to be realized to safeguard the environment. Even if a law or a statute could do that, which it can’t, we need state agencies to enforce those laws. Environmental laws depend on broad laws enacted by legislatures that are politically accountable to the people, and then agencies faithfully carrying out those laws. They do that in terms of permitting decisions. They do that through the rulemaking process, and they do that through enforcement.
CG: So let’s talk a little about where the rubber hits the road on these kinds of issues in terms of particular communities that have been affected by these changes and the ways that Midwest Environmental Advocates has been involved.
TWG: One key example is a case involving Kinnard Farms that we have litigated for a number of years on behalf of Kewaunee County residents, who could not drink their water because of bacterial contamination from a nearby CAFO, a concentrated animal feeding operation. Those residents asked for stronger permit conditions under the state’s groundwater laws and under the Clean Water Act, so that they would have more protection and that there would be more accountability when their drinking water was contaminated. They won those permit conditions all the way back in 2014, and those permit conditions then should have been part of the regulations that the CAFO was required to follow.
Using a 2011 law that purported to retract permitting authority from state agencies, the CAFO and their special interest allies, like the Dairy Business Association and Wisconsin Manufacturers and Commerce, took that single permit decision all the way to the Wisconsin Supreme Court, saying that the DNR no longer had the authority to tailor the permit conditions to that specific situation. The upshot of all of that is that this summer (2021), our clients and MEA won, and the state Supreme Court held that no, that 2011 law did not implicate the state’s authority to issue permit conditions. That is great and it’s a bright spot. It’s proof that even despite these challenges, organizations like MEA and community members, like our clients and Kewaunee County, can win in the courts. We can preserve environmental protections and environmental democracy in Wisconsin. However, it should not have taken close to eight years for those basic protections to be put in place.
CG: To hear more about how Wisconsin citizens navigate the DNR permit process, we spoke with Lynn Utesch, an organic beef farmer in Kewaunee County, who has been actively involved in the Kinnard Farms case since it first began a decade ago.
Lynn Utesch: With the Kinnard case, at the time that we got involved, they were a small CAFO by Kewaunee County standards. Citizens came to Kewaunee Cares and asked for some help with technical issues as to what they could actually do, seeing that we had already worked on some of the issues with manure pits. They were concerned about this expansion that was taking place in their township—actually, in their neighborhood is where it was. The pit was proposed to be 76 million gallons.
The citizens contacted us and asked, What can we do? They had no clue as to the procedures. And I tell you the truth: at the time, we had very little knowledge of what actually was going on and how we could address any of the things that were taking place in our community from a legal standpoint. I believe that we had 15 CAFOs—large, industrial dairy CAFOs—existing at the time. Liquid manure was being spread on fields. It would be inches just slopped across the field, running off into the ditches. The DNR was doing no enforcement. Nobody really seemed to care about what was taking place here.
When the Kinnard issue came up, when Kinnard Farms was looking at expanding, the citizens there realized that this was going to destroy their way of life. It was going to destroy their community. We were kind of like “CAFOs Central” here, up until then, in Kewaunee County. There had been a few people that had written letters. There had been some people that had attended a couple of the public hearings. Once it went through the DNR, nobody did anything, and nobody knew that you really could do anything. Then, when MEA stepped in, they actually gave the citizens those options of permit challenge. Nobody knew that you could do a permit challenge. But the biggest problem with permit challenges is if you don’t have somebody like MEA that’s willing to come in and do a lot of that work, basically pro bono or through donations that come into their organization, the citizens can’t fight these things, there’s no way that any citizen can.
Featured image: The Wisconsin State Capitol building in Madison was completed in 1917 and added to the National Register of Historic Places in 1970. It houses the state legislature along with the Wisconsin Supreme Court and the governor’s office. Photo by jpellgen, 2017.
Podcast music: “Weatherman” by Wolf Man Summit. Used with permission.
Tony Wilkin Gibart is the executive director of Midwest Environmental Advocates, a nonprofit law center based in Madison, Wisconsin.
Doug Oitzinger is a city council member in Marinette, Wisconsin.
Lynn Utesch is an organic beef farmer in Kewaunee County, Wisconsin.
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