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Supreme Court recognizes the value of citizen testimony in frac sand permit dispute

Jun 05, 2017

A decision by Trempealeau County to deny a permit to a frac sand operation wound up on the desks of Justices of the state Supreme Court, a big part of the decision of the court to side with the County rested on the testimony by local residents about their concerns over the impacts of frac sand mining in their community.

After watching this case develop and hearing about the state Supreme Court's decision, Midwest Environmental Advocates' staff attorney, Jimmy Parra, had this to say about how citizens' voices actually can matter in the long run.

On Wednesday, May 31, the Wisconsin Supreme Court upheld the Trempealeau County Environment and Land Use Committee’s decision to deny a frac sand mining company’s request for a conditional use permit to construct a 550-acre frac sand mine and processing facility. The proposed project—which was slated to include a 265-acre mine site, a processing plant, a conveyor system, stormwater retention ponds, and a rail spur—would have been situated in the town of Arcadia, along the banks of a Class II trout stream and tributary of the Trempealeau River.

In its decision, the Wisconsin Supreme Court rejected several arguments offered by AllEnergy Corp. and its subsidiary, AllEnergy Silica–Arcadia, as to why the courts should overturn the land use committee’s decision. There was, however, one particular section of the decision that caught my attention. When analyzing whether the land use committee’s decision was supported by substantial evidence, the Court referenced and quoted from public comments and hearing testimony from the local citizens concerned about the impacts of the proposed mine.

The Court recounted the testimony from citizens who were concerned that the area was already flood prone and that the mine would worsen the situation, and that the proposed mine would have adverse impacts on the aesthetics of the surrounding area, the environment, the local culture, and the health of the community. Importantly, the Court noted that concerns local citizens raised were directly related to the different considerations about the mine’s impact that the County Zoning ordinance required the committee to take into account.

AllEnergy had argued that the land use committee should not have relied on the citizen testimony because it was “uncorroborated hearsay” and consisted of “lay opinions by persons lacking appropriate special expertise.” In rejecting each of AllEnergy’s arguments, the Court forcefully reaffirmed the importance of public input in zoning decisions:

“The Committee and the courts would be remiss to ignore the words of concerned persons familiar with frac sand mining and the environs. Zoning is a matter of local concern, and many of the people commenting at the hearing on AllEnergy's proposal have either lived near a frac sand mine or will be living, working, and recreating alongside the proposed mine.

The language of the Trempealeau County Zoning Ordinance clearly anticipates and invites public opinion. Thus, public expressions of support or opposition establish a valid basis — that is, substantial evidence — for a decision on AllEnergy's application for a conditional use permit.”

These lawsuits take a long time to unfold. The Trempealeau County Environment and Land Use Committee made its decision back in 2013 and it took until 2017 for a decision on the legal challenges and appeals that ended up before the state’s Supreme Court.

But it was important for local citizens to show up to zoning committee hearings to voice their concerns about their health, the health of their environment, and their ability to use and enjoy their land and water. Ultimately their voices encouraged the Committee to make a wise zoning decision. In this way, the Supreme Court validated the needs and concerns of local residents and truly made citizen voices matter.

    - Jimmy Parra, Midwest Environmental Advocates Staff Attorney

This court decision was covered by the La Crosse Tribune, Wisconsin Public Radio, and the courts beat of the Milwaukee Journal Sentinel.

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/ tagged: frac, frac sand