1/13/12 AB 426 AND ECONOMIC AND INDIVIDUAL FREEDOM

Friday, 8:30 AM.  14.5 degrees, wind W, calm.  The sky is overcast and the Island has disappeared in “lake smoke.” Lake effect snow is falling continually and we have had at least 7” of accumulation since the snow started.  The barometer predicts clear skies, but that may not affect the conditions near the lake if the temperature remains this low.
         Everyone seems relieved that winter has returned.  Buddy enjoys the snow, and I do not mind the shoveling when it is this light and fluffy.  The pine siskens are busy emptying the feeders, which attract whole flocks of the little birds.
      As promised, the following is my brief analysis of the State of Wisconsin’s controversial new mining law, AB 426, proposed by the House, but not yet approved by the Senate. Even the 44 page overview of the 183 page bill is too long and complicated to address in detail in this blog, so the commentary is mainly my impression of the Overview written by the State of Wisconsin Legislative Reference Bureau. Keep in mind that I am not a lawyer.     
        The new law is for iron mining only.  Other kinds of mining remain under the present law.  Many of the rules in the new bill are the same as under the old, but the application for a permit has been streamlined.  This “streamlining” extends to the rest of the permit process, which must be completed in 360 days.  Throughout the bill there are 30 and 60 day response times imposed on various s aspects of the process.  Most of this bill addresses possible or even purposeful delays that the Department of Natural Resources might impose to impede approval,  or to discourage the applicant outright. Under the bill, the DNR cannot continually require new information during the permitting process.  The bill restricts the DNR’s rule making ability, essentially stating the rules in the law itself, which is why it is 183 pages long.
        The new bill still requires the DNR to hold public hearings on the project, but there are several clauses which limit who can actually contest the permit process, essentially reducing the amount of nuisance objections and delaying tactics by third parties.  Actual lawsuits remain mostly unimpeded. Environmental Impact Report and Environmental Impact Statement requirements remain substantially the same.  Local zoning restrictions still must be met but local permits may be obtained after the application for a mining permit is begun, rather than only before.  All federal laws of course remain predominant, and in some cases the DNR is restricted from making rules that are more restrictive than the federal.  The DNR is required to at least consider the use of mitigation or compensation where ecological damage may occur.  The DNR can’t indefinitely expand the physical area considered to be under a mining permit. However, some portions of the proposed bill actually increase the authority of the DNR.  The DNR must at least consider any new ideas that may be brought forward during the application process.
        The wetlands and water quality aspects of the bill need to be addressed by expert opinion, as there are some new provisions which are contentious. Expanding the use of mitigation or compensation for ecological damage may or may not be desirable.  Water withdrawal, and waste site standards are also a matter of expert opinion and some are obviously controversial.
        The new bill divides tax revenues from a mining project evenly between the state and local communities, which will be an issue for negotiation between those units of government.
        In summary, the new legislation imposes time limitations on the permitting process so that it cannot drag on forever.  It also restricts the promulgation of administrative rules that are not expressly intended in the original law, and keeps the DNR from “moving the goal posts” by making up new rules as it goes along.  It requires public hearings, but restricts nuisance complaints and suits.  As I understand the bill, it does not and cannot restrict meaningful lawsuits by the  affected parties.
        It is my opinion that Assembly Bill 426 contains many provisions beneficial to the economic health of the region and the state, and places necessary restrictions on a powerful agency that is used to making up its own rules and proceeding at its own pace.  Unfortunately, it also contains questionable environmental clauses which need to be addressed in its final form, but it should certainly not be rejected because of political posturing and protests by uninformed or biased parties.  The state’s motto is “Forward,” and this bill should in my opinion also move forward through good faith, rationality and compromise.
         If the above all seems daunting, consider that it only presages what the public and its representatives are up against in trying to reign in the Environmental Protection Agency and other monolithic federal agencies to give our nation the rebirth of economic and individual freedom it so desperately needs.