Transcending NIMBY: Environmental Protection From Below

• In Event: Federalism and Environmental Policy and Outcomes

Abstract

In response to the federal decision to pull out of the Paris Climate accord, we’ve witnessed the increased assertion of some state governments to advance environmental protections independently of national priorities. This assertion has made more fluid the relationship between state governments and the national and strained the “cooperative federalist" relationship which has characterized the most recent era into a new dynamic of environmental federalism. In a similar dynamic, in states which continue to advance the rollback of environmental regulation and water protections, county, local, and tribal governments have become more assertive within their jurisdictions in advancing policy initiatives that protect local environmental quality in contradiction to state policies.

In this paper, I would like to explore the recent assertion of jurisdictional authority on the part of local, county, and tribal governments within the states of Wisconsin and Michigan to protect local environmental quality in response to citizen demand and running counter to state government policies and legislation. Constituent concern for this place-based protection reflects motivations across the ideological spectrum from protection of property values to a desire to move away from fossil fuel extraction but result in a coalition of diverse groups determined to prevent their place of residence from becoming a sacrifice zone and build into preventing environmental degradation for the entire region.

Tribal governments, with few exceptions, have long asserted their authority to protect their territories and have sought to expand their jurisdictional authority through “treatment as state” delegations from the EPA in order to strengthen their regulatory reach, especially when the states in which they co-occupy have pursued resource extraction projects. Advocating for enhanced consultation protocols, building relationships with sympathetic congressional figures and building capacity for regulatory agency have long been initiatives to protect local environments, based on cultural and ethical concerns.

But local and county governments have generally deferred to state policy initiatives and have restricted their jurisdictional efforts to well- established policy areas, based not on partisan concerns, but pragmatism and efficiency. Challenging state regulations, even within the jurisdictional areas long accorded to county and local governments, can mean rulings of state preemption which invalidate local ordinances.The significantly more powerful and resource-rich state governments have always had a strong potential for dominating local governments and county governments which run on significantly smaller budgets and staffs.

Yet, when state government officials are unresponsive, citizens put significant pressure on local and county officials to act. As the governments closest to the citizens, local elected officials cannot be insulated from concerns as state and national officials can be. But, in order to thread the needle of avoiding state preemption yet responding to constituent concerns, local governments have had to get creative in their re-framing of ordinances to expand them to include environmental protection and their assertions of jurisdiction against state policies. Zoning ordinances are being written to include restrictions that would severely hamper the construction of a mine and limit its hours of operation and weight limits are placed on rural road use. In addition, new areas of collaboration between tribal and local governments are being formed as they work to resist state environmental deregulation together and bring individual resources to their collective fight.

From participant-observation of tribal, county, and local governments in both Wisconsin and Michigan and documenting efforts to prevent the siting of sulfide mines near Stephenson, Michigan, Oneida, Wisconsin, and Marathon county in Wisconsin, I hope to illustrate this new enlivened environmental federalism with concrete examples of both local and tribal officials, alone, and acting in concert at the behest of their citizens.

Author

• Paula Mohan, UW-Madison