INTRODUCTION

I am Thomas Dawson.  I am an assistant attorney general and director of the environmental protection unit of the Wisconsin Department of Justice.  I am here to speak at the direction of Attorney General Peg Lautenschlager.

The Attorney General strongly opposes this bill. 

This "Jobs Creation Act" appears more to be a wolf in sheep's clothing, intended more to eat our citizens' natural resources, clean air and clean water, than to significantly deliver or save any jobs. 

We have seen no analysis that suggests that this massive bill to cripple environmental protections would have any significant impact on creating or saving jobs. 

For sure, Wisconsin needs many more good paying jobs.  But, this bill clearly does not do that. 

Stripped of the spin and label, this bill instead does other things.  Contrary to the assertions of the bill's proponents, the bill does significantly lower environmental standards.

The bill abdicates the state's constitutionally mandated duties under the public trust doctrine of navigable waters.  The bill violates the Clean Air Act, and bars the state from acting to fill the gaps in that law that are needed to protect our citizens and children from polluted air.  It violates the doctrine of separation of powers.
 
 

MAJOR REVISIONS OF LAW REQUIRE ADEQUATE PUBLIC NOTICE AND HEARING

This 114-page bill proposes to radically repeal and revise long-standing statutory laws that have served this State well for decades.

Those laws, the product of careful and deliberate drafting and evolution over decades, have struck a careful and fair balance between the rights of the public in our public waters and natural resources -- with the rights of property owners and individuals.

We find many of these repeals and revisions to be unconstitutional under state law, and illegal under existing federal law. 

However, before stating those findings, we find it necessary to express our shock at the secrecy, magnitude and lightning speed with which this massive sea-change in Wisconsin law is being ram-rodded through the Legislature. 

It is clear that this 114-page, 292-section, bill has been worked on and drafted for months by industry lawyers and legislators.  Yet, the public has been given less than a day to absorb this massive document, let alone to review, analyze and comment on it.

This process is not consistent with democratic principles, or with Wisconsin's heritage of public participation in the policy-making process.

Because of the extremely short time we were given to review this bill, we believe there are likely to be other issues that we have not had time to find, review and comment on.

However, we address the following specific issues in the bill.
 

NAVIGABLE WATERS PROVISIONS

37 pages of the bill are devoted to repealing and revising our longstanding laws for the protection of public rights in our state's waters.  This bill would weaken current environmental protections of our public waters.

Under current law, those who would alter, change or destroy publicly owned waters, or publicly enjoyed rights to use our waterways, are prohibited from doing so unless their proposed activities are reviewed, modified and permitted by the DNR according to environmental and legal standards, after public notice, and subject to court review.  Private property owners and the public who might be injured by these activities have a say in that process. 

As a result of this process, people generally get their permits without injuring other property owners or the environment.  We understand that 92% of chapter 30 applicants got their permits, most in less than 7 weeks, last year.  It appears this bill is throwing out the baby with the 8% washwater who did not get their permits more quickly, or not at all, and without determining what portion of that 8% have justifiable complaints.

This bill would provide exemptions, and blanket approvals called general permits, for the most commonly undertaken and cumulatively harmful activities in our waterways.  Significantly, these blanket approvals of potentially destructive activities would be required without consideration of public rights and interests, and without any opportunity for hearing. 

The United States Supreme Court, in striking a proposal by the State of Illinois to allow a railroad company to use part of the bed of Lake Michigan for the company's business purposes: 

"... the state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and the soils under them, so as to leave them entirely under the control of private parties … than it can abdicate its police powers ..." 

Under this longstanding rule of law, this legislature simply has no authority to advance private business interests over those of the public when it comes to these resources, and this bill appears to do just that.

Without these constitutionally protected safeguards, enunciated by our U.S. and Wisconsin Supreme Courts, and consistently upheld throughout Wisconsin's history, the bill's provisions are constitutionally flawed.  They cannot be legally defended.  The court has consistently held that public rights are entitled to the same, and in fact superior, protections as private rights.  Yet, this bill relegates public rights to second class status.  A legislatively enacted legal presumption in favor of actions that can harm or destroy significant public rights in our waters would be an unconstitutional abrogation of the duty of the State to protect our waters.
 

CLEAN AIR PROVISIONS

 The bill provides some 28 pages of repeals and changes in the state's clean air laws.  The bill would weaken current environmental standards.

It is clear that the purpose of the bill's changes is to weaken Wisconsin's current protections of our citizens' health and environment, and to make Wisconsin's standards no more strict than the minimum standards of protection required by the federal government.  Indeed, they are minimal. 

Under the bill, Wisconsin can look forward to the lowest air quality that the federal government will impose on us and the other states.

In addition, the Attorney General of Wisconsin has taken the position in court, on behalf of citizens of the State, that the federal rules, that this bill would direct DNR to emulate, are illegal under the Clean Air Act.  Thus, if these provisions in the bill are legally challenged, it our position that this law would be legally indefensible.

On February 27, 2003, Governor James Doyle asked the Attorney General to file a lawsuit challenging the "New Source Review" amendments adopted by the United States Environmental Protection Agency on December 31, 2002.  He did so because he viewed those rule amendments as ineffective for the purposes of "enhanc[ing] environmental protection without limiting innovative business opportunities."  Subsequently, he authorized the Attorney General to file a second lawsuit challenging USEPA's more recent expansion of the so-called "routine maintenance" exception to longstanding requirement to update air pollution control on major sources of air pollution when they are modified in ways which increase their emissions.  Both cases are now pending in the federal Court of Appeals for the District of Columbia.

In those two cases Wisconsin has gone on record claiming the USEPA unlawfully adopted rules that are contrary to the Clean Air Act.

This bill would direct the DNR to adopt rules identical to those Wisconsin has already alleged to be unlawful in court.  It follows that it is the position of the State of Wisconsin that these provisions in the bill are illegal.

Even if they were legal, these measures would operate to compromise public welfare by unnecessarily exposing our citizens and our environment to excessive amounts of pollution.
 

DELEGATION OF POWERS

The bill also has constitutional delegation and separation of powers problems.  Section 183 of the bill creates section 227.185 of the statutes.  That provision would require that no rule may be adopted without the Governor's approval.  In addition, the provision would authorize the Governor to modify or reject a proposed rule. 

The provision contains no standards for the Governor's review and action.  The provision makes no distinction between the rules adopted by cabinet agencies, or agencies headed by independently elected state officials.  The provision makes no reference to legislatively required or authorized standards for agency rulemaking.  The provision does not provide clear procedures that would follow the Governor's action. 

This provision in the bill raises serious delegation of powers questions about its constitutionality and legality, and presents a potential procedural quagmire in the rulemaking process.  The adoption of this provision appears likely to lead to litigation that the State cannot defend.

CONCLUSION

We urge this Committee to reject this bill.  We urge you to develop public policy that is legal, constitutional, by consensus, by involving the public, and by involving all of us who want to create meaningful employment opportunities for our citizens. 

Thank you for the opportunity to speak with you today.
 

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