Saturday, February 23, 2019

Taking note of WI's water experts and their Great Lakes advocacy

Wisconsin defenders of the state's waters and the governing Public Trust Doctrine rightly cheered last week when the US Supreme Court reaffirmed the public's rights to walk and appreciate the Great Lakes shorelines.

I'm happy to point out that the history of the 2015 case in which the Supreme Court upheld these rights included the work of Attorney Melissa Scanlan:
Court Confirms Indiana’s 45-Mile Shoreline on Lake Michigan Owned and Held by State for Public Recreation Under Public Trust Doctrine
Another state court confirms that the 3,200 miles of Great Lakes shoreline are owned by states in public trust for citizens to enjoy for walking, swimming, sunbathing and similar beach and water related activities on public trust lands below the Ordinary High Water Mark (“OHWM”).[2]...

[2]See Melissa Scanlan, Blue Print for a Great Lakes Trail, Vermont Law School Research Paper No. 14-14 (2014).  (Professor Scanlan proposes walking trail within public trust lands and without interference with riparian use based on public trust doctrine in the Great Lakes); James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. E. L. 135 (2014) (Author documents the application of the public trust doctrine in all eight Great Lakes states and two provinces of Canada).
Wisconsinites should recognize Scanlan as the founder of Midwest Environmental Advocates - - a public interest, non-profit law firm - -  and a contributor to discussions about the proposed diversion of Lake Michigan water which is needed to keep the controversial Foxconn project afloat:
Scanlan makes a commonsense observation about the exemptions to environmental law and procedures which Gov. Scott Walker and other project proponents are committed; I appreciated the whole of Scanlan's argument and especially her clarity when describing project supporters' looming self-inflicted wound:
The legislative package also includes broad exemptions from the state’s environmental protection laws, including laws designed to protect the public’s rights to clean and reliable freshwater....
These exemptions run afoul of Wisconsin’s Constitutionally-required “public trust doctrine....”
To exempt this massive set of projects from those protections is an abdication of the legislators’ and Governor’s promises when they took office to uphold the Wisconsin constitution. 
A surefire way to bungle this deal is to add environmental exemptions that will be tied up in court for years and then be thrown out as unconstitutional. 
And to close this loop, Midwest Environmental Advocates is litigating the Foxconn diversion, with briefs due March 4th.
A Wisconsin administrative law judge had established a schedule for the filing of briefs in one of those pending matters - - a case brought by multiple petitioners opposing the DNR's approval of a diversion from Lake Michigan 
to supply millions of gallons of water daily for Foxconn manufacturing at its Village of Mount Pleasant site. 
More, here: 
Jodi Habush Sinykin, attorney for Midwest Environmental Advocates, said this is “welcome news” to their petitioners.
“It comes at a time of renewed support round the region for a strong Great Lakes Compact, whose core principles are honored in keeping with the letter and spirit of the agreement,” Habush Sinykin said.
Wisconsin is fortunate to have organizations like MEA, Clean Wisconsin and others, especially after Republicans dismantled the Office of the Public Intervenor, followed by Walker's all-out assault on environmental protection.

There is an expectation that water rights, environmentalism and public advocacy will become mainstream priorities under the Evers administration and at the Josh Kaul-run Department of Justice. 

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