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  • October 27, 2022

    The Death of Environmental Law has Been Greatly Exaggerated

    The 34th Annual Environmental Update from State Bar of Wisconsin PINNACLE demonstrates that environmental law is alive and well. Phillip Bower recaps the day’s presentations and themes.

    Phillip R. Bower

    forest canopy

    “Environmental law is dead. Long live environmental law.”

    This proclamation popped into my head while listening to the keynote speaker, Robert Kaplan, EPA Region 5 Regional Counsel – at the 34th Annual Environmental Law Update on Sept. 15 from State Bar of Wisconsin PINNACLE® – no doubt in part due to the passing of Queen Elizabeth II just a few days prior.

    The Keynote

    In his keynote address, Kaplan explained that when he was in college, he thought there were no new issues in environmental law and that he should pursue a different career path. However, after an encouraging discussion with a professor who thought otherwise, Kaplan pursued a career in environmental law and learned that we are not at the end of environmental law after all – that we are still at the beginning and “the only constant is change.”

    Anyone who attended the Environmental Law Update likely would have been nodding in agreement with Kaplan by the end of the day, after hearing about many emerging issues and the partnerships and creativity that attorneys are using to address them.

    For example, Kaplan also discussed some current EPA initiatives. He touched on recent key decisions from the U.S. Supreme Court, such as the use of the major questions doctrine to decide West Virginia v. EPA. He announced that the new Waters of the United States rule has been sent to  Office of Management and Budget for review.

    Kaplan also touched on big projects – fixing infrastructure and lead service lines and PFAS and the embedding of environmental justice and civil rights into EPA’s programs, policies, and activities. He discussed how the Biden Administration is looking to shake up the National Compliance Initiatives which have not seen much change over the years. At bottom, there is lots of change going on with EPA programs, and it is happening quickly.

    Great Lakes Panel Discussion

    The keynote was followed by a Great Lakes Panel Discussion, moderated by Edward Witte of Godfrey and Kahn, which covered a number of important environmental issues impacting the Great Lakes. For me, “partnerships” and “creativity” summed up this panel, as it was apparent both of these are needed to address legacy and current environmental concerns impacting the Great Lakes.

    Phillip Bower headshot Phillip Bower, Georgetown Law 2004, is deputy counsel at the Wisconsin Department of Natural Resources.

    Jason Treutel, Air Quality Planning Section Chief from Department of Natural Resources, spoke about ambient air quality standards for ozone along the lakeshore of Lake Michigan and the challenges the state faces from interstate transport of ozone precursors. Tying into the ozone discussion, Arthur Harrington of Godfrey & Kahn spoke about electric vehicles and the impact that EVs could have on ozone reduction. Mobile sources are one of the largest contributors to ozone precursors, not just in Wisconsin, but also Chicago. He highlighted opportunities presented by recent federal legislation.

    Turning to sediment contamination in the Great Lakes, Scott Inman, a Water Resources Engineer with DNR, spoke about the Great Lakes Areas of Concern and progress made in Green Bay and Sheboygan. He focused on the Milwaukee Estuary Area of Concern and how partnerships between DNR, EPA, local governments, Milwaukee Metropolitan Sewerage District, and private entities are allowing cleanup of sediment in Milwaukee waterways to take place. It will result in the construction of a new sediment management facility.

    Patrick Kenny, a project manager from WEC Energy Group, then spoke about executing a project the size and complexity of the Milwaukee Estuary Area of Concern, given the urban location and amount of contaminated soft sediment. Engagement with numerous stakeholders has been a key part of ensuring a successful project.

    Finally, Mike Kowalkowski, an attorney with DNR, gave an update on fluctuations in Lake Michigan water levels and record water levels seen in 2020, which impacted private and public property along Lake Michigan. Recognizing that the regular permitting process was insufficient to allow property owners to move fast enough to protect property, DNR developed a process to allow property owners to move forward with projects and seek after-the-fact permits.

    ESG - What Environmental Lawyers Need to Know

    Next up, Foley & Lardner attorneys Lynn Parins, Sarah Slack, and Hillary Vedvig covered what environmental lawyers need to know about Environmental, Social, and Governance (ESG) issues and the related risks and opportunities for energy, clean fuels, clean vehicles, energy efficiency and more under the federal Infrastructure Law and Inflation Reduction Act, as well as number of new regulations related to ESG, including disclosure of greenhouse gas emissions by companies.

    PFAS Update

    Perfluoroalkyl and polyfluoroalkyl substances, also known as PFAS or “forever chemicals,” continue to be a hot topic in the environmental legal world. Delanie Breuer of Reinhart Boerner Van Deuren s.c. provided attendees with an update on recent rulemakings in Wisconsin that regulate or set standards for certain PFAS compounds, as well as additional state and federal rulemakings and court cases in progress which could impact how PFAS are regulated in Wisconsin and nationally. I expect this will be a topic at many future Updates.

    Ethics for the Environmental Lawyer

    What’s this? Ethics before 4 p.m.? That’s right! Christopher J. Jaekels, Jodi Arndt Labs, and Timothy J. Pierce tackled ethics for the environmental lawyer, including issues that arise when representing an association or organization, conducting internal investigations, and communications with corporate officers and employees.

    Wisconsin Audit Programs – Opportunities

    More partnerships! Lisa Ashenbrenner-Hunt from DNR discussed the DNR’s Small Business Environmental Assistance Program, EnviroCheck – a voluntary external audit program, and the DNR’s voluntary program for superior environmental performance – Green Tier – which provides participants with perks such as permit flexibility and a single point of contact within DNR.

    Next, Jeanne Burns-Frank, of Madison Gas and Electric, provided the perspective of a Green Tier company, and how they could use the structure of the Green Tier program to inform their ESG Analytics and show investors how MG&E can reach NetZero by 2050.

    Dave Ruetz of von Briesen & Roper shared how his clients have benefited from the EnviroCheck and Green Tier programs, especially the importance of a single point of contact within the DNR.

    Air Update and Water Update

    The day ended with two classic presentations – an air update and a water update. Todd Palmer of Michael Best first covered air issues and reviewed a number of federal rules in the works, as well as a few state rulemakings, and federal and state litigation that environmental practitioners should be aware of.

    Although Todd discussed recent courts decisions that address when federal rulemakings and DNR actions become final, his presentation was not the final one of the day. That honor goes to Jane Landretti and Vanessa Wishart of Stafford Rosenbaum who gave a water update and covered a multitude of state and federal rulemakings related to water.

    Breadth and Depth

    The 34th Environmental Law Update truly had something for everyone.

    As in past years, I left the Update impressed by the breadth and depth of the environmental bar in Wisconsin and the large variety of issues we face every day as environmental practitioners. While our clients may not always see eye to eye, there were plenty of examples of parties finding creative solutions to big problems. See you next year!

    Note: It’s not too late to attend the 2022 Environmental Law Update – it’s available via webcast seminar on select dates through January 2022, and via OnDemand seminar.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.

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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.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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