Here & Now

Lawyer: Foxconn Environmental Exemptions May Bring Lawsuits

Zac Schultz:

In tonight’s look ahead, there are still a lot of unanswered questions about the Foxconn deal, including what it means for the environment. Sarah Geers is staff attorney for Midwest Environmental Advocates. Thanks for joining us today.

Sarah Geers:

Thanks for having me.

Zac Schultz:

The special session bill is eliminating a lot of the upfront environmental reporting like the agency environmental impact statements. What do we learn from an impact statement?

Sarah Geers:

They’re critically important. They’re the main tool in the Wisconsin Environmental Policy Act that the agencies use to insure that their decisions fulfill the mandate that the state put environmental protection at the forefront of government decisions. They put all of the information about potential environmental impacts in one place for agency decision makers who may be siloed into narrow permitting programs themselves. And also make that information digestible for the public.

Zac Schultz:

Is it a big loss not to have one?

Sarah Geers:

It certainly is. We’ve seen erosions to the Wisconsin Environmental Policy Act and environmental impact statements over the years, but we’ve never seen this type of exemption.

Zac Schultz:

What do we know about Foxconn's environmental practices overseas? Are they able, ready and willing to follow Wisconsin and U.S. law?

Sarah Geers:

They’ve certainly stated they are willing to follow state laws. But I'm not sure if they have experienced complying with the environmental laws in the United States. In their plants in China, they have had extensive environmental pollution issues, regarding pollution of China’s rivers as well as air pollution. And we certainly have higher environmental standards than they’ve been used to in China.

Zac Schultz:

Even though Foxconn is getting this expedited permitting and being allowed to fill in state wetlands, DNR says they’ll still enforce Wisconsin's pollution laws. Do you have faith in the DNR's ability and willingness to do that?

Sarah Geers:

I certainly have faith in the DNR staff that we work with frequently. They’re very dedicated professionals. But we’ve seen the DNR's funding and staff authority eroded over the years. And they are currently underfunded and not given the authority they need to do their jobs. So it’ll be critically important for the public to watch dog the permitting processes that haven’t been touched by this bill, which include the air quality and water quality programs.

Zac Schultz:

You mentioned DNR staff. What about the political appointees that run the agency and determine how they respond, whether they prosecute a violation or a warning?

Sarah Geers:

I'm glad you caught on to that distinction because it’s one that I make often. We’ve certainly seen a lot of political influence by the top levels of DNR. We’re concerned that the type of influence that lead to the environmental exemptions in the Foxconn bill would be carried through other environmental decisions at the DNR level.

Zac Schultz:

Do you expect any third party testing or monitoring, independent groups deciding we’re going to put our money and effort to make sure that they’re following the law?

Sarah Geers:

Certainly we see that all over the state. There are citizen monitors trained by the DNR that do water quality testing to supplement the state’s program. We also urge individuals that get drinking water from private wells to do their own essentially groundwater quality testing.

Zac Schultz:

You described Midwest Environmental Advocates as an environmental law firm. Do you expect lawsuits to be filed ahead of this process?

Sarah Geers:

There are certainly some potential constitutional issues associated with this bill. I can’t say for certain we or another organization would bring a challenge to the bill before we even know where the site is going to be located. But there’s certainly that possibility. And it’s something we’re looking into. Additionally the exemptions that this bill creates have really made a more complicated and burdensome process for the company to follow by making divergent federal and state programs. And there again, it’s another opportunity for litigation.

Zac Schultz:

Now, do you have to have harm done before you can have cause to file a suit? Could you file a suit and a judge throws it out saying they haven’t done anything wrong yet? How can you sue them?

Sarah Geers:

Yeah, that's always a balance. And so that would be one of the issues we would look at in terms of when a challenge to the bill could be brought forward. However once the legislature acts to take away these environmental protections, that may have serious implications for constitutional protections under the public trust doctrine.

Zac Schultz:

Once a place this big, with this many employees, is up and running, is that too late to do much to change how they act?

Sarah Geers:

It certainly would be difficult for example at that point to get a court to reverse a decision on a wetland fill permit, for example. That would be something that likely concerned citizens or environmental organizations would have to pursue shortly after that permit was issued.

Zac Schultz:

Only less than a minute left. In your opinion, can this type of manufacturing be done environmentally friendly or are there issues with all manufacturing of this type?

Sarah Geers:

I don’t know enough about LCD manufacturing to say they would all have environmental compliance problems. I do know there are issues that this industry like others have to contend with. One of them is water usage. Another is the use of heavy metals in its processing that can cause water pollution. And those are some of the issues we’ve seen in China. Certainly just like any other industry, they have the capacity to comply but there are certainly some challenges and hurdles they’d have to overcome.

Zac Schultz:

Sarah Geers, thank you for your time. You’ll keep watching it. So will we.

Sarah Geers:

Thank you.