Controversial changes to Wisconsin mining law approved; potentially groundbreaking bill on fracking introduced in Illinois

Stateline Midwest ~ April 2013

Over the two sessions that Wisconsin lawmakers considered passage of controversial new mining legislation, the bill’s sponsor, Sen. Tom Tiffany, heard hours of testimony from both sides. But he says that perhaps the most powerful story of all came from a northern Wisconsin family.

To make a living, Tiffany recounts, the father has been leaving home for work hundreds of miles away in North Dakota, for fracking jobs in the Bakken oil shale.

Why not try to bring those types of jobs to Wisconsin? Tiffany and other supporters of SB 1 argued. In the end, they won out — but barely. Opposition to the measure was strong, with the bill passing by the narrowest of margins in the Senate (17-16).

“We are all for good-paying jobs; that wasn’t the question, but we don’t need to sacrifice the environment in order to do it,” says Elizabeth Wheeler, a staff attorney for Clean Wisconsin, a nonprofit advocacy group that opposed the legislation.

The new law, in part, reverses a decision made by legislators a decade-and-half ago to pass a measure known as the “mining moratorium.”

Under this 1998 law, as a prerequisite for building a mine, project developers had to provide evidence that a mine operating in the United States or Canada for 10 years — as well as one that had been closed for 10 years — did not pollute ground or surface water due to acid drainage or the release of heavy metals. This “prove-it-first” requirement was hailed at the time as a landmark environmental safeguard. But the 2013 law removes the moratorium for iron ore mining.

Fifteen years ago, Tiffany says, lawmakers in and around proposed mining projects were likely to vote for the moratorium; this time around, the opposite was the case.

“We’ve seen double-digit unemployment in some of our counties,” Tiffany explains. “That wasn’t the case in the late 1990s.”

The oil boom in North Dakota is well known, but other states in the Midwest are also eyeing new economic opportunities tied to tapping into their natural resources — whether it is iron ore in Wisconsin or newly available natural gas in states such as Michigan and Ohio.

“It is vital to use our natural resources because that is how we make things,” Tiffany says. “If you’re not producing here, then it’s an economic activity happening somewhere else in the world.”

This production, however, also has the potential of causing environmental damage. 

According to Wheeler, SB 1 does not adequately address well-known environmental problems associated with iron ore mining, such as acid drainage and the release of waste from the mines. The result, she says, is that sensitive and important water resources have been left open to degradation. 

From Tiffany’s perspective, though, SB 1 sets the right balance between maintaining the state’s environmental standards and allowing for new economic activity. 

Illinois blazes new trail with fracking bill

Finding that right balance was the goal of a five-month-long negotiation in Illinois over new rules for hydraulic fracturing. And lawmakers may have found one that works for industry and environmental groups.

Over the past six months, a “lease rush” has occurred in southern Illinois due to the potential of the New Albany Shale formation to produce high volumes of natural gas, explains Josh Mogerman, a spokesman for the Natural Resources Defense Council.

Meanwhile, the NRDC, other environmental groups and legislative supporters have sought a statewide moratorium on fracking, saying not enough is known about its impact on the state’s environment and infrastructure. Those efforts, though, have stalled in the legislature. Seeing little prospect of a moratorium passing, the NRDC turned to Plan B: negotiating stronger permitting standards and rules. 

“The current situation [with little or no regulations] is untenable,” Mogerman says.
Industry groups, wanting to remove regulatory uncertainty, were willing to compromise as well.

The result was HB 2615, a recently introduced bill that would put in place the nation’s “most comprehensive law governing hydraulic fracturing,” Ann Alexander, a senior attorney with the NRDC, wrote in February.

Among the bill’s key provisions, she says, are strong standards for well construction and requirements that all chemicals used during the fracking process be disclosed before operations begin. (The ability of industry to claim a trade secret, and not disclose chemicals, would be limited.) Public hearings would have to be held about proposed fracking permits, and citizens could appeal the permits that are granted.

“Those rights have been removed in many states,” Mogerman says.

He notes, too, that state water resources will be tested before, during and after fracking takes place ­— thus allowing for another important provision in HB 2615: a presumption of liability for contamination that occurs near the site of a fracking operation.

Because of these and other safeguards, Mogerman says, HB 2615 would set a new, and higher, “regulatory floor” as other states consider their own standards.