As Foxconn Vote Approaches, Environmental Concerns Remain

Aug 14, 2017

The State Assembly Committee on Jobs and the Economy will vote Monday afternoon whether to give Foxconn $3 billion in incentives.

Supporters say the huge factory would result in thousands of jobs and a significant boost to the state’s economy. Critics say the bill comes at too high a price - in terms of dollars and its environmental impacts.

Last week, Wisconsin DNR Secretary Cathy Stepp wanted to dispel the environmental concerns while she addressed the Natural Resources Board at its monthly meeting.

“The first thing I wanted to say is that there’s been some worry that DNR doesn’t have the staff to or the ability to take on project of this magnitude I assure you nothing could be further from the truth. In fact, the beauty and serendipity of our alignment plan that we’ve been working on for the last two years have brought us to this point, where we stand at the ready,” Stepp said.

She says the bill helps regulatory processes bureaucracy while still upholding environmental protection.

Melissa Scanlan disagrees. She founded Midwest Environmental Advocates in Madison 18 years ago. Today, she teaches environmental law at Vermont Law School.

When it comes to the bill and the environment, here are a few areas Scanlan and Secretary Stepp differ:
 

Environmental Standards

Stepp: “There are no environmental standards being rolled back,” Stepp says, “So the state, federal air quality, water quality, solid hazardous waste standards are going to be required to be met just like they are today.”

Scanlan cites Chapter 30 of state law, which sets up protections for Wisconsin’s navigable waters and the individual permits to safeguard the environment. She says the bill exempts Foxconn or any company that locates in the new “electronics and information technology manufacturing zone.”

“Site unseen the legislature is being asked to provide exemptions from the state’s water laws, and the laws that are being proposed for exemption are those that protect state wetlands, those that prevent the filling of lakebeds, permits that are required to reroute streams, permits that are required when you’re grading and building on an area that’s close to navigable waters and permits are usually required to prevent topsoil from running off. All of those types of activities would be exempt from state permitting during construction of the project, but also during the operation of that enterprise zone,” Scanlan explains.

She says the exemptions are not just for Foxconn, “Any business that might locate within the zone that would be created from the legislation, would be exempt as well."

Wetland Protection

Stepp: “Any impact on wetlands will have to be properly mitigated, in fact the proposed legislation is calling for more mitigation than has been done before."

For every acre of wetland disturbed, Foxconn would be required to created two acres of wetland elsewhere in the state.

“The Army Corps of Engineers would have a lot of oversight in this project and would be working through their federal process.  Anything in the proposed legislation does not affect that,” she adds.

Scanlan says the 2-for-1 mitigation does not reduce the impact to wetlands on the Foxcon site.

“When you fill them in it can increase flooding and property damage. Wetlands filter water so they’re a very important part of maintaining the balance in the ecosystem and ensuring that you have enough capacity to absorb excess water that could turn into flood waters and also filter that water before it gets to Lake Michigan which is the drinking water for millions of people.” She adds, “Under this proposal the state wetland permitting would no longer exist, it would be exempt.

Scanlan says if Foxconn is exempted from state wetlands permits, the 2 for 1 mitigation provisions would only apply to federal wetlands.

Scanlan disputes DNR Secretary Stepp’s certainty that the Army Corps of Engineers would provide oversight. “There are federal wetlands where jurisdiction would kick in for the federal government, but those have to be navigable or connected to navigable water– they have to be quote “waters of the United States. At this point that term is (being) litigated.”

Under the Obama Administration, the EPA along with the Army Corps drafted a regulation to clarify what wetlands and waterway qualify for federal protection.

“The Trump administration as subsequently backpedaled and it is unclear where that is going to end up.” Scanlan adds, “Unless there are wetland on site that are clearly within the federal definition of the United States, there are many wetlands that fall outside that definition.”

Public Trust Doctrine

Scanlan says the Foxconn bill violates the state constitution and one of its core components, the Public Trust Doctrine.

“Under Wisconsin’s constitution the state has a duty to protect all the waters. And they’ve carried that out by they have carried it out by creating water laws and courts have said that those laws are upholding the Public Trust Doctrine." She continues, “Under the Public Trust Doctrine the public has the right to use the state’s public waters and the legislature has carried out its duty to the public by creating water laws. To exempt a single company from those water laws raises constitutional issues that could make those exemptions subject to challenge in court.”

Stepp says the Foxconn bill protects and even enhances the environment while serving as a job creator remains unflappable.

"Our permitting team are going to take all the usual worries and concerns that they might have on projects of all sizes. They’re very qualified professionals who will be able to evaluate what the risks are and going forward that’s just what we do everyday. There’s really nothing new there.” Stepp acknowledges, “Sure the size of this is bigger, I will definitely will grant you that, but I’ll tell, we’ve got the best men and women that are going to be working on this projects, through all the different permitting. And I know we’re going to be working with the company (Foxconn) and the consultants for the company on how to do the lesser amount of impact as possible, just like we require of everybody.”