Several controversial bills were passed by the Republican-controlled Legislature and signed into law by Gov. Scott Walker last session, only to end up in court.
There are strong indications the proposed mining bill could be next, joining collective bargaining, voter ID and a gubernatorial attempt to supersede the powers of the state superintendent as lawsuit fodder.
“From a litigation standpoint, they have a losing hand,” predicts state Sen. Tim Cullen, D-Janesville.
Protection of state waterways, Cullen and others say, will be the likely legal roadblock.
Cullen has been trying this fall to improve on the Republicans' failed mining bill of last spring. In the post-recall window in which the Democrats have been in control of the state Senate, Cullen's Select Senate Mining Committee has been meeting with stakeholders in an attempt to craft a mining permitting bill that includes environmental protections critics say were missing from the GOP's version. With little time left before Republicans take back control of the Senate in January, Cullen’s committee meets for what could be one of the last times Thursday to continue its efforts to improve Assembly Bill 426, which top state Republicans including the governor have signaled they still favor.
Should Republicans choose to ignore Cullen's committee's work and reintroduce AB 426 as originally crafted, the lawsuit threat looms, say observers.
Sen.-elect Thomas Tiffany, R-Hazelhurst, who worked extensively on AB 426 and was recently picked to chair the Senate Workforce Development, Forestry, Mining and Revenue Committee, says while he hopes there will not be a lawsuit filed, he “would not be surprised” if that happens.
“While I don’t question anyone’s sincerity, I believe the Assembly bill passes constitutional muster and will survive any litigation that is brought forth,” Tiffany says.
But what the Assembly bill fails to do, say opponents, is protect state waterways, including lakes, rivers, streams and wetlands, from the leftover soil, called "overburden," that is dug out in any mining operation.
While the state’s existing mining law has explicit language prohibiting the infill of waterways with, for example, overburden from a mining operation, the Assembly bill does not. It is simply silent on the matter.
“It is an intentional omission,” asserts George Meyer, former secretary of the state Department of Natural Resources and executive director of the Wisconsin Wildlife Federation.
Meyer says the omission is particularly concerning because of the environmentally sensitive location of the only prospective mine that is being discussed for development in Wisconsin.
Mining company Gogebic Taconite has as an option on land in the Penokee Hills of Ashland and Iron counties. The land is surrounded by trout streams, wetlands and the Tyler Forks and Bad rivers. The Bad River drains into Lake Superior after traversing the reservation of the Bad River band of Lake Superior Chippewa.
“This is basically a one-mine bill,” Meyer says. “There aren’t numerous other iron ore mines in the state. Given that context, there no doubt will be a legal challenge if a permit is issued for the Penokee mine.”
Gogebic officials have said the first phase of the $1.5 billion project would include an open-pit mine roughly 4 miles long and 1,000 feet deep.
That means a lot of excess dirt will need to be put somewhere after it is removed to reach the iron ore deposits. Since the Assembly mining bill doesn’t say the excess soil can’t be deposited in wetlands and rivers, critics fear this is exactly what will happen.
If the company dumps the earth into these streams, says Meyer, it would be a violation of the state constitution’s “public trust doctrine,” which says that state waterways must remain the property of all citizens, not any one property owner or company.
Meyer says the state Supreme Court has ruled numerous times on the side of protecting state waterways by citing the public trust doctrine. He added Tiffany, first elected in 2010, has been a lawmaker long enough to be “aware of the doctrine.”
“It’s almost impossible to put all that overburden somewhere near the mine without putting it in water,” Cullen insists. “The big problem is there is too much water up there.”
The proximity of the reservation and the potential for the mine to negatively impact the wetlands and waterways that flow through the tribal land adds a layer of federal oversight that would not be a factor on non-tribal lands. Observers believe federal officials will look closely at the environmental impact of any mine near tribal land.
Tiffany says legislative attorneys have been asked to look into how the Assembly bill compares to those in Minnesota and Michigan, specifically when it comes to how those states handle what’s known as "waste characterization." That pertains to what happens to potentially harmful minerals and other material dug out during the mining process.
“Waste characterization is an important part of this process,” Tiffany says. “It is my belief our DNR will do a thorough job with this portion of the permitting process.”
The Assembly bill failed to make it to Walker’s desk last spring after Sen. Dale Schultz, R-Richland Center, announced he would not provide the necessary vote for the bill to pass the Senate, which was then controlled 17-16 by his party.
With an 18-15 Republican advantage in the Senate as of January, Schultz will no longer be a stumbling block. How much clout Cullen’s committee has on the upcoming session is also up for debate.
Like Walker, Tiffany calls the Assembly bill a “good starting point," adding he believes a viable bill can be created from it.
“We certainly will review what they’ve put together,” says Tiffany of the work done by Cullen’s committee. “I think we owe it to the process to do that.”