Headwinds face Foxconn's smooth sail

A few things to keep in mind when you hear that Foxconn wants to break ground on its mega-project this spring.

* A Federal court lawsuit was filed in January over the use of eminent domain by the Village of Mount Pleasant to take property from private owners for portions of the project site.

The Village has insisted that it has the right to take property for the project, even declaring some 'blighted,' though property owners have objected, so a quick resolution is questionable. Some details and context, here.

*  Article IX of the Wisconsin State Constitution says that the state's waters and access to them, belong to all the people: veteran water law expert Melissa Scanlan noted months ago that unique exemptions from routine wetland permitting procedures granted to Foxconn by the state could put it in violation of its own constitution.

A constitutional challenge? Don't look for that to get resolved in 90 days.

So stay tuned.

(Here is a link to an archive on this blog with more than 150 posts dating to the project's announcement in July.)

* Foxconn is applying for at least four permits to emit large tonnages of air pollutants annually. Those emission have been compared to the operation of a large paper mill, and the state is busy trying to weaken air quality standards and monitoring in the area.

The permit paperwork is lengthy and complex; the comment period remains open through the end of the business day, April 16, according to the DNR:

Comments may be faxed (920-424-4404), e-mailed (jonathan.wright@wisconsin.gov), or mailed (Wisconsin Department of Natural Resources, Attn.: Jonathan Wright, Northeast Region Air Program, Oshkosh Service Center, 625 E County Road Y, Suite 700, Oshkosh, WI 54901-9731).

So do not expect a quick initial decision on the permits, and as with all such permitting, appeals are allowed. 

*  The DNR is also reviewing an application to divert Lake Michigan water to the project, as the agency notes: 

The city of Racine and Racine Water Utility have submited a straddling community diversion application to the department. Diversions of Great Lakes water are regulated under the Great Lakes Compact. The proposed diversion area includes the portion of the village of Mount Pleasant that is in the Mississippi River basin - including the area identified by Racine County as the future site of the Foxconn facility. 

The application and related materials are available on the Racine diversion page.

That application raised significant concerns at a public hearing last month about potentially-polluted wastewater from the project reaching the watershed, or Lake Michigan; the seven-million-gallon-daily diversion has been calculated equalling a line of 1,100 water tanker trucks fourteen miles long.

And there has been reporting that other Great Lakes states are questioning whether the purpose of the diversion - - principally to support a new business - - meets the exception standards spelled out in a 2008 US-Canada Great Lakes management compact. 
 
So there are two timelines to watch here. One is tied to the DNR's diversion application review - - which will likely result in an approval - - given that the entire thrust of the Walker administration is to use state power to further his 'chamber of commerce mentality.' 

And because and so much of Walker's political identity, career and re-election campaign are tied to the Foxconn deal he engineered, and the push it might someday provide to his finally keeping his signature and repetitive 250,000 new private-sector jobs promise that is now more than three years overdue.

The other is whether other states may try to get into the discussion, or whether there is any litigation surrounding the diversion application, let alone to the Public Trust Doctrine issues.

Let's acknowledge two things:

1. Big projects acquire momentum of their own, especially if government takes sides early on. 

Google "Miller Park," for example, or "the Waukesha diversion." 

In this case, Walker has further tilted the playing field by positioning for Foxconn a DNR he's turned from honest broker and science-based agency into an ideologically-driven defacto Department of Commerce.

And that advantages Foxconn because citizen-opponents again have to raise funds stretched thin because taxpayers statewide who are battling polluters also have to fight the DNR which through taxes and fees they already fund.

One recent example, among many: 

A Dane County judge has thrown out eight high-capacity well permits the state granted to businesses despite warnings from its own scientists that the massive water withdrawals would harm vulnerable lakes, streams and drinking water supplies.

Circuit Judge Valerie Bailey-Rihn ruled that the permits ran afoul of a constitutional provision requiring state government to protect water for the public.

“This Court is bound by nearly 120 years of precedent and a long rich history in the State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all,” Bailey-Rihn wrote in a decision she issued Wednesday.

2. Nonetheless, Walker, through the DNR, holds strong cards. And do not forget that he has installed as the state's Foxconn project liaison Attorney Matt Moroney, a Governor's office senior staffer and former DNR Deputy Secretary who, prior to his Walker administration service was a builders' association official who had opposed the Great Lakes Compact's diversion exceptions as impediments to business.

But while Foxconn talks about breaking ground later this spring and the state is moving things along by beginning road improvements in the area, I would doubt that Foxconn would invest now in more than symbolic bulldozing for the cameras until it knows it has cleared all the air, fresh water, waste water, property ownership and related legal hurdles it now faces.

Especially after a judge so recently made such a strong ruling in support of the Public Trust Doctrine, cited above:

[Dane County Circuit Court] Circuit Judge Valerie Bailey-Rihn ruled that the ]groundwater' permits ran afoul of a constitutional provision requiring state government to protect water for the public.

“This Court is bound by nearly 120 years of precedent and a long rich history in the State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all,” Bailey-Rihn wrote in a decision she issued Wednesday.

So: Stay tuned, and involved.