Environmental Law Section Blog: Environmental Justice in Wisconsin: Law, Policy, or Neither?:

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  • Environmental Law Section Blog
    July
    15
    2020

    Environmental Justice in Wisconsin: Law, Policy, or Neither?

    Christa Westerberg

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    Environmental justice addresses race-based environmental disparities, taking into account the impact of environmental decision-making on minority and low-income communities, and striving to increase access to decision-making processes. Christa Westerberg discusses how environmental justice has been implemented in Wisconsin.

    The killing of George Floyd by Minneapolis police in May 2020 led to calls for police reform and focused attention on other policy areas where racial disparities exist, including racial disparities in environmental impacts and corresponding health outcomes.

    Wisconsin law does not directly address race-based environmental disparities, though the concept of environmental justice has been recognized for decades. This blog reviews the state of environmental justice in Wisconsin, including areas for future reform.

    What Is Environmental Justice?

    Environmental justice is defined by the U.S. Environmental Protection Agency (EPA) to mean

    the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

    Environmental justice thus has two objectives: ensuring all populations have the same degree of protection from environmental health hazards; and ensuring that all populations have the same access to decision-making processes that affect the environment.

    Data supports the existence of environmental disparities and their implications for health. For example, multiple studies, according to the American Lung Association, have found Hispanics, Asians, and especially Black populations are exposed to more fine-particle pollution than other populations, and are at higher risk of premature death as a result. According to the Centers for Disease Control and Prevention, low-income children and children of color are more likely to have elevated blood lead levels. Lead pipes in plumbing are pervasive in Wisconsin, including the City of Milwaukee, where early lead exposure was found to predict fourth grade school suspensions.

    Christa Westerberg Christa Westerberg, U.W. 2002, is a partner with Pines Bach LLP in Madison, where she practices in environmental, land use, energy, open government, and civil rights law.

    Some environmental justice concerns in Wisconsin are connected to fishing. One study found elevated methylmercury levels in the blood of some Chippewa tribal members, likely due to consumption of fish contaminated with mercury in northern lakes. Methylmercury is toxic to the nervous system and is linked to neurological and behavioral disorders.

    Groups in Madison raised the alarm about PFAS contamination in Lake Monona and Starkweather Creek, particularly as it impacts subsistence anglers. Certain PFAS can lead to adverse health impacts in humans – studies show reproductive, developmental, liver, kidney, and immunological effects in laboratory animals, according to the EPA.

    Environmental Justice in the Law

    While the data supports significant environmental disparities, the law does little to directly address them.

    The federal government formally recognized environmental justice concerns when President Bill Clinton signed Executive Order 12898 on Feb. 11, 1994. Among other things, the order required each federal agency to

    make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

    However, by its terms, the order did not “create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity” against the United States or its officers.

    Environmental justice is a more explicit factor in some agency decision-making. For example, projects funded by federal highway money must follow a U.S. Department of Transportation environmental justice order. This includes projects by the Wisconsin Department of Transportation (WisDOT).

    The EPA has regulations intended to implement Title VI of the Civil Rights Act of 1964, prohibiting discrimination by entities or programs receiving federal funds.1 These regulations are enforceable through an administrative process, which has been criticized as time-consuming and ineffective.

    More often, environmental justice concerns are litigated through other laws, like the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331. In 2013, two organizations representing Milwaukee inner city residents sued Wisconsin transportation officials based on their allegations that an environmental impact statement (EIS) prepared for the “Zoo” interchange was inadequate. A federal court agreed the plaintiffs were likely to succeed on the merits of their claim that the EIS failed to adequately consider cumulative social and economic impacts of expanding the highway and the project’s effect on air quality.2 

    A similar suit was filed in 2017 by three environmental justice organizations, related to the I-94 east-west corridor project in Milwaukee. WisDOT subsequently withdrew plans for the project.3 Some civil-rights style claims have also seen success in other jurisdictions.4

    The Wisconsin Environmental Policy Act (WEPA), Wis. Stat. section 1.11, requires consideration of environmental impacts and economic advantages and disadvantages of a proposal. Neither it nor agency implementing regulations directly address environmental justice, but this is an appropriate consideration for the WEPA process.

    Environmental Justice as an Organizing Tool

    Regardless of whether environmental justice is formally enshrined in the law, groups sometimes invoke environmental justice concerns to influence governmental or corporate decision-making.

    In 2015, We Energies converted its coal-burning Valley Power plant to natural gas after a coordinated campaign by the Cleaner Milwaukee Coalition. The plant was located in the most “densely-populated, low-income and minority-populated area in the state,” where asthma, heart attacks, and respiratory ailments associated with coal-burning were common, according to Midwest Environmental Advocates.

    The Wisconsin Department of Natural Resources and Department of Health Services issued fish consumption advisories for Starkweather Creek and Lake Monona after sustained public pressure and data collection by community groups, according to Wisconsin Public Radio. The City of Madison also posted signage containing these warnings.

    Impact to tribal interests, including clean water and wild rice harvesting, was central to efforts to stop mining proposals in northern Wisconsin – such as the Crandon Mine a decade ago – and is a factor in current opposition to Enbridge Energy’s pipeline expansion.

    Environmental Justice in 2020

    While no formal law requires consideration of environmental justice, Wisconsin policymakers still have some options to address the issue.

    Gov. Tony Evers and Lt. Gov. Mandela Barnes have cited environmental justice as factors in two recent orders: Executive Order #38 Relating to Clean Energy in Wisconsin, and Executive Order #52, creating a task force on climate change.

    Order #52 recognizes that “communities of color and low-income communities often experience the first and worst consequences of climate change and have long been on the front lines of this battle.” Among other things, the climate change task force will collect scientific data and make recommendations on legislative, legal, regulatory, or community-based initiatives to “meaningfully address climate change and create a clean energy economy in Wisconsin.”

    The climate change task force is collecting public comments this summer, and its recommendations are due to the governor by Aug. 31, 2020. It remains to be seen how environmental justice will be addressed in any concrete way, and if it is, whether the legislature is inclined to adopt the recommendations through state law.

    In the meantime, agencies may wish to consider revising their regulations to directly address environmental justice and ensure it is included in WEPA and other processes. Without this or more formal action, we can expect environmental disparities to persist and continue to burden Wisconsin’s minority and low-income citizens.

    Endnotes

    1 40 C.F.R. Part 7.

    2 Milwaukee Inner-City Congregations Allied for Hope v. Gottlieb, 944 F.Supp.2d 656 (W.D.Wis. 2013).

    3 NAACP Milwaukee Branch v. Ross, E.D.Wis. Case No. 2:17-cv-297.

    4 See, generally, Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 Fordham Urb. L.J. 523 (1994).





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    Environmental Law Blog is published by the State Bar of Wisconsin. To contribute to this blog, contact Gabe Johnson-Karp and review Author Submission Guidelines. Learn more about the Environmental Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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