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Growers: A Right To Pollute?
Wisconsin State Journal :: OPINION :: A8
Saturday, August 14, 2004
Melissa K. Scanlan
Recently, Wisconsin Attorney General Peg Lautenschlager has
come under attack for doing her job.
It is her responsibility to uphold the Wisconsin Constitution and to hold accountable those who pollute our public waters with impunity. By suing a cranberry grower who has continually contaminated a northern Wisconsin lake, she is doing just that.
Her detractors incorrectly assume that if a law or DNR regulation doesn't bar an activity, then it must be perfectly legal --even if the activity impairs the public's rights to use and enjoy state lakes, rivers and streams.
This is not the case. Our constitutionally-grounded Public Trust Doctrine has been developed through what is known as the "common law" of court decisions. This rich body of law is interpreted side by side with statutes and regulations, but isn't supplanted by them. The Public Trust Doctrine is simple: Wisconsin holds its waters in trust for the public, and the rights of the public are paramount to any private use of state waters.
The cranberry industry has for years received preferential treatment through a law that generally exempts it from many DNR regulations. Now this industry also claims it is protected against common law claims under the Right to Farm Law. But if a grower creates a public nuisance by harming public trust waters, the attorney general has a duty to protect the public interest by going to court to right the wrong. The highest law of our state is the state constitution -- and where the Public Trust Doctrine is concerned, both the Right to Farm Law and the Cranberry Law must yield to it.
The attorney general's lawsuit aims to stop excessive amounts of pollution into Lac Courte Oreilles in Sawyer County and to clean up the portion of the lake that has been harmed by years of polluted discharges.
A growing body of scientific knowledge shows that cranberry operations can cause serious harm to water quality. For instance, a 2000 study conducted on Little Trout Lake in Vilas County concluded that one bay of the lake had been so damaged by pollution related to growing cranberries that it had become "a eutrophic bay with high nutrients and algal blooms that is rapidly filling in with toxic sediment."
When faced with the daily reality of managing land in a way that produces a viable and profitable crop, most farmers are able to protect air and water resources. When some fail to meet this balance, however, it isn't in the best interests of Wisconsin to protect them and trample upon the rights of the public in one of our last great commons -- our lakes, rivers and streams.
Wisconsin has a long history of turning a blind eye to the damaging practices of many in the cranberry industry. The Legislature and the DNR have largely ignored the well-documented environmental degradation caused by the cranberry industry, which very effectively curries special favors from elected and appointed officials in Madison.
It would certainly be preferable to have the Legislature and the DNR live up to their responsibility to protect the public trust by more effectively regulating the cranberry industry. Unfortunately, they have lacked the political will to do so. Lautenschlager should be applauded for doing her duty and for refusing to be intimidated by cranberry growers.
The cranberry industry has for too long been afforded a special exemption to exploit and pollute our waters. In a state with such a strong natural resource legacy, no one industry deserves special treatment and the cranberry industry should not be allowed to be a bitter pill for the environment.
