River News: Our View

Remember that night your not-so-attractive neighbors left their curtains wide open while they changed their clothes.

Of course you do because what you saw you can never unsee. It’s the cause of all those horrible nightmares and countless therapy sessions. It’s the reason you bought a second-hand print of “The Birth of Venus” and never stop looking at it.

Well, let us tell you, modern government is sort of like that unfortunate night. Sometimes it leaves its shades up so we can see what’s going on inside, and it’s not pretty. Lately, in fact, the state has been leaving the drapes wide open all the time, and what a freak show.

For sure, what we are seeing we can never unsee. Wherever we look, politicians of all stripes and regulators from all corners are brazenly proving an age-old adage: the stricter the regulatory regime becomes, the more certain it is that the government writing the rules will not be bound by them.

You get hammered by a judge; bureaucrats get hammered by the pool. Call us crazy, but it doesn’t get any uglier than that.

Here’s how the real world works these days. When it comes to regulations, the private citizen and the private business must comply. That includes manufacturers, farmers, and residential landowners.

On the other hand, the government agency — the very institution imposing the administrative sentence — does not have to obey. For us, their rules are the law; for them, a suggestion.

We have seen this pattern play out repeatedly in recent months, both in Madison and here in the Northwoods. In each case, the same logic prevails. Liability and oversight flow downhill toward a private sector hell, while exemptions lift up to the heavens toward public bureaucracies.

The result is not simply unfairness. It is a structural inversion of the rule of law, political corruption taken to a Grade A level.

Let’s start at the state level. Republicans and Democrats are going round and round over the need to assess liability for PFAS, or forever chemicals, contamination. This past summer, there seemed to be two camps. In one corner were Republicans, who sought protections for innocent landowners.

That is to say, Republicans sought to shield current landowners from liability for contamination of their property in cases where they did not create or discharge the chemicals. There are many innocent landowners. Paper mills, for instance, are often passive receivers of upstream pollution. 

Also, for years, the state encouraged agricultural enterprises to landspread biosolids and some paper byproducts to return nutrients to the soil. Turns out many were also landspreading PFAS poison.

Hence, there is a need to protect innocent landowners. Last summer, Republicans were very clear that liability must not be imposed on any defined class of landowner, but on those who created or discharged the chemicals. It wasn’t about who you were but what you did.

The other camp was just as straightforward. Progressives and Democrats wanted to punish innocent landowners. Why? Because they are progressives who simply like to punish innocent citizens, that’s why. That’s what they do, making sure they build in exemptions for progressive nonprofits and government organizations.

So environmentalists didn’t like the Republican position and whined about it. And whined and whined. They didn’t stop whining until Republicans showed up on their doorstep with a compromise, which was actually a surrender swathed in angelic clothing.

Because that’s what Republicans do: They surrender and call it compromise.

To be sure, Democrats knew that if they yelled long enough, Republicans would capitulate, and that’s just what they did, proposing perhaps the most hypocritical solution one could think of.

Specifically, under their new compromise, the state would no longer impose liability on those who polluted or pollute, but on certain designated classes of entities and people, whether they polluted or not.

How’s that? you ask incredulously.

That is to say, manufacturers and the entire private sector economy would be penalized, while similarly situated government entities would not. The latter would receive an exemption from the rules they imposed on the private sector.

A privately owned landfill? Guilty! A municipally owned landfill? What PFAS? Nothing to see here, move along.

It’s as if they have never heard of equal protection. They decided to pick winners and losers, and, as always, the winners are various governments and the losers are the private sector. Bottom line is that manufacturers and private businesses remain fully liable, while government entities performing identical functions are exempt. 

The law would no longer distinguish on the basis of conduct but on who you happen to be. This is the very definition of bureaucratic identity politics. To be sure, if two actors do the same thing but only one can be punished because it belongs to the private sector, then liability is not environmental policy. It is class warfare.

So let’s bring it all home, lest the state example be too abstract.

Imagine a shoreland in Oneida County where there is a boat landing and a need for more public parking. Naturally, this would be a hypothetical situation.

Oh wait. Maybe not. At Stack’s Bay, there is just such a boat landing project, and the Department of Natural Resources has already cleared trees and graded shoreland, but neglected to erect a silt fence. 

Comparable private construction would require permits, erosion control, and local approval. The DNR obtained none.

And, as we have reported, it says it doesn’t need any. As we have also reported, the justification rests on a 1993 attorney general’s opinion interpreting state law to exempt facilities providing public recreational access from local zoning authority. State officials continue to rely on that interpretation today. 

Our articles explain the backdrop to this opinion, but a very quick summary gets to the heart of the point: The DNR wanted exemptions from having to obtain local approval for boat landing projects, but the law specifically required the agency to obtain local zoning permits. So the agency went to the legislature to ask for a specific exemption for the boat-landing projects. The legislature refused to grant it.

Not content to listen to the will of the people, the DNR then asked a far-left attorney general to give the agency what the legislature would not, and, using a twisted interpretation that would make Biden-era gaslighters proud, he did just that.

Voila! Just like that, once again, the government is exempt from the regulations they impose on everybody else.

It’s worth saying that one does not have to believe the DNR acted irresponsibly to see the problem. The issue is not whether the project is in the public interest. The issue is whether rules apply equally.

A regulation that binds only nongovernment actors is not a regulation. It is a caste system. Across America, privileged elites have constructed a rigid class regime in which the spoils of American prosperity, what’s left of it, are reserved for them. They disdain equal treatment almost as much as they disdain freedom of speech.

These two disputes are not isolated controversies but are instead the eruptions of a no-longer dormant governing philosophy. Modern regulatory regimes increasingly operate on three underlying assumptions.

First, government actors are deemed benevolent by definition and thus pre-approved for exemption. Second, private actors are presumed guilty and therefore necessary to burden. Third, fairness is secondary to administrative largesse.

Under that scheme, responsibility flows toward the least politically protected parties. That would be industry, property owners, and small businesses. The only problem is that the idea collides with the foundation of republican government — equal treatment under the law.

The solution is not complete deregulation. That’s not to say we don’t believe that we are over-regulated — we do — but it is to say that one way to rein in burdensome regulation is to impose those same regulations on government actors. Give them a taste of their own medicine, and it will help reduce what is required, often needlessly so.

All of which is to say that if shoreland rules protect lakes, they should protect them from everyone. If liability attaches to contamination, it should attach based on causation, not because you’re someone the government dislikes or disfavors. If exemptions exist, they must be explicit and democratically debated — not implied through decades-old interpretations or inserted through identity-based classifications.

Government may regulate, but it cannot regulate credibly while standing outside the prison walls it builds.

The strange part is that none of this requires ideological agreement about environmental policy, economic development, or land use. It only requires agreement on what should be a core principle of civil society: the law should not care who you are. Only what you did, or what you are doing.

And so we call on Republicans at the state level to fix the PFAS liability mess they are helping to make. Democrats and environmentalists started this with their refusal to deal with a common-sense solution to remediation, but convicting people as polluters based on identity and not causation is not the answer.

And Oneida County should immediately demand permits from the DNR for the Stack’s Bay project and other projects that would require average citizens to get permits.

If they refuse, sue them.

It’s time we begin to stand up for the republic, and for our republican rights, and it starts with equal treatment. Let us dream of a day when we can pull back the veil and let the sun shine into our government — without throwing up at the sights we see inside.