Godfrey & Kahn’s deep environmental experience and long history of involvement in legal initiatives to protect the environment make us a natural ally for tribes seeking to protect water and air resources for future generations. Examples of our recent Indian country work to benefit tribal environmental interests include:
- Assisting tribes in seeking and obtaining Treatment as State status under the Clean Water Act and in the preparation of water quality standards and related regulatory requirements, allowing tribes to both regulate on-reservation waters and activities that may impact those waters and to significantly strengthen their ability to protect against off-reservation activities that impact reservation water quality.
- Assisting tribes in obtaining Class I status for their reservations under the Clean Air Act, including the first tribal Class I air quality redesignation by the U.S. Environmental Protection Agency since 1992. This authority assures the highest level of protection from ambient concentrations of conventional pollutants (e.g., sulfur dioxide, particulate matter and nitrogen dioxide) on the reservation available under the Clean Air Act. Class I designation enables tribes to influence off-reservation development that could adversely affect reservation air quality. Designations also can help to preserve the pristine nature of lands located outside the reservations that could otherwise be contaminated by pollutants under the Class II standards covering the rest of the state.
- Assisting tribes seeking to prevent adverse impacts from proposed off-reservation activities, including a successful multiyear campaign on behalf of one tribal client to prevent development of zinc mining in northern Wisconsin, thus protecting vital reservation water and air resources for future generations, and assisting another tribal client in raising water- and air-related concerns with a proposed iron mine, the application for which has since been voluntarily withdrawn.
- Assisting a tribal clients on National Environmental Policy Act (NEPA) and related environmental issues related to tribal casino development, including assisting a tribe in successfully overcoming significant opposition to its proposed facility and a court order that struck down an environmental assessment for the facility by overseeing the successful preparation of environmental impact statement that the opposition agreed met all objections, allowing the facility to be built.
- Assisting in the establishment of tribal “Little NEPA” and other environmental protection programs to protect tribal air, water and other natural resources.
- Developing strategies for tribes to cost-effectively implement “green” energy initiatives that reduce the environmental impacts of a tribe’s own commercial and government operations.
In addition, the firm offers a full range of other environmental legal services to tribes including: advice regarding environmental regulatory program issues (e.g., Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Clean Air Act, Clean Water Act, etc.), as well as assistance with land use, wetlands, water rights, conservation easements, and municipal environmental issues, criminal and civil environmental litigation, and regulatory compliance, environmental risk transfer, brownfield, landfill requirements, air and water permitting and compliance and political law.
Tribal Environmental Services
Godfrey & Kahn had the honor of representing the Forest County Potawatomi Community (FCPC) in its challenge to the federal and state permits required for the proposed Crandon Mine. The Crandon ore body is one of the largest and richest copper and zinc ore deposits in North America. Unfortunately, it also contains approximately 90% to 95% sulfidic material, which could cause significant acid mine drainage if the mine were developed as proposed. In addition, the mine site is located within a natural area with thousands of acres of wetlands, pristine lakes, rivers and streams.
FCPC opposed the mine for decades due to its culturally important lands located within the areas of the proposed mine site and significant concerns regarding the proposed mine’s environmental and other impacts. In 2000, the tribe retained Godfrey & Kahn to help with their opposition to the mine. During this engagement, we worked with approximately 25 expert witnesses in areas ranging from mining operations to wetlands, air and other environmental issues, to identify scientific and legal concerns with the mining proposal. Because of the Environmental Impact Statement concerns identified by the tribe, the Army Corps of Engineers required that literally every portion of the draft Environmental Impact Statement be reevaluated and rewritten. When the mining companies realized that they could not go forward with its proposal, given the concerns raised by FCPC, Godfrey & Kahn represented FCPC with respect to their historic purchase of the proposed mine site and ore body. This purchase allows for preservation of the site and significant benefits to the Northwood’s recreational economy.
Two of our Environmental Strategies Practice Group attorneys involved in this engagement received the 2004 Wisconsin Leader in Law Award as a result of this successful resolution of what had been one of the longest-running and most contentious environmental disputes in Wisconsin’s history.
Class I Representation
Godfrey & Kahn was fortunate to represent the Forest County Potawatomi Community (FCPC) with respect to its application for Class I air designation for its reservation. Class I air designation is the most stringent protection afforded an area under the federal Clean Air Act. This designation is generally reserved for national parks. However, states and tribes have the legal authority to seek redesignation.
Class I air designation allows the tribe or the manager of a national park to influence the permitting of large major sources of air emissions located just outside the Class I area if modeling establishes adverse impacts on the air quality related values inside the Class I area.
On April 29, 2008, this representation resulted in the Bush administration awarding FCPC the first Class I air designation for any tribe anywhere in the United States since 1992.
Nottawaseppi Huron Band of Potawatomi Indians Casino
Godfrey & Kahn successfully represented the Nottawaseppi Huron Band of Potawatomi Indians in the positioning of its new gaming facility near Battle Creek, Michigan. A well-funded and organized opposition group challenged the facility in part on grounds that the environmental impact statement (EIS) was inadequate. Godfrey & Kahn, working on behalf of the Huron Tribe, ensured that the final EIS withstood the legal challenges.
Successful Opposition to Class I Increment Modeling Rule
Godfrey & Kahn was honored to represent the Forest County Potawatomi Community with respect to its opposition to the Bush administration’s proposed modeling rule that would have undercut the protections afforded Class I areas. This new increment rule would have significantly altered the requirements for modeling of impacts from major pollution sources on Class I areas.
Our firm’s engagement included preparing and filing significant comments on EPA rules, consultation with senior EPA officials and meetings with the Office of Management and Budget, as well as other administrative officials, regarding the proposed rule. Godfrey & Kahn coordinated its effort with several other tribes and the National Tribal Environment Council. Despite the Bush administration’s statement that it was focused on promulgating this rule prior to the end of its term, on December 10, 2008, the administration issued a notice that it would not seek to finalize the rule due to the opposition of tribal and other environmental groups. In one of their newsletters, the National Tribal Air Association (NTAA) acknowledged the role that FCPC and our firm played in this important initiative to protect tribes and the environment.
Municipal Environmental Services
City of Kenosha
Represent the City of Kenosha in numerous brownfield redevelopment projects including the 50 acre former Simmons Mattress manufacturing, lakefront redevelopment project, the 110 acre former Chrysler engine plant facility and the redevelopment of the 20 acre former MacWhyte Manufacturing facility property.
City of Oshkosh
Represent the City of Oshkosh on a significant former landfill matter for investigation and remediation required by state and federal law for the facility.
City of Oshkosh
Represent the City of Oshkosh on all aspects of significant brownfield redevelopment projects in the City. These projects have included the development of an outdoor amphitheater park located on a former Manufactured Gas Facility site and as well as the demolition and redevelopment of a former wood products manufacturing facility located in the city.
City of Two Rivers
Represent the City of Two Rivers and a significant brownfield redevelopment project located in the City
Town of Cedarburg
Represent the Town of Cedarburg in connection with negotiating with the DNR and other responsible parties the scope of the required investigation and remediation for a former landfill located within the Town of Cedarburg.
Other Governmental Environmental Services
Charter Street Conversion
Godfrey & Kahn worked with Titus Engineering to prepare a feasibility study for Wisconsin’s Department of Administration (DOA) to convert the coal-fired Charter Street plant at the University of Wisconsin-Madison to a combined natural gas and biomass burning facility. Godfrey & Kahn’s role includes providing the DOA with innovative solutions to address the complex air permitting issues associated with refueling this power plant.
Governor’s Task Force on Global Warming
Godfrey & Kahn represented an Indian tribe in connection with its role as a member of the Governor of Wisconsin’s Task Force on Global Warming.
State Renewable Energy Purchases
Godfrey & Kahn acted as special counsel for the state of Wisconsin regarding the procurement of renewable energy to meet statutory requirement that requires 20% of all state facility electricity use be obtained from renewable energy. We assisted with the evaluation of Request for Proposal (RFP) responses and negotiation of related agreements that involved special tariff arrangements and long-term renewable power purchase agreements.