The following blog post is by Elizabeth Wheeler, Clean Wisconsin’s Staff Attorney. Look for her monthly posts on legal matters.

Due process is a slippery creature. It is difficult to define precisely, because it is premised on the notion of fairness. But still, due process is a fundamental tenet of our legal system, our government and our constitution. And, it’s an incredibly important component of environmental law.

More than once during law school, my environmental law professors handed me the 1968 article from Science titled “The Tragedy of the Commons.” I have to say, I didn’t find it a particularly riveting read in school, or even now, but I always return to it when thinking about why due process is so critical to environmental law.

The tragedy of the commons is this: If each person uses our common resources independently and rationally to advance our own self-interest, our resources will be depleted at an unsustainable rate – which is, ultimately, in no one’s self-interest. This is the reason why environmental law is based on the participation of and due process for the general public. Under the National Environmental Policy Act (NEPA), we are owed a full disclosure of all the environmental impacts of a project so that we – an applicant, state regulators, the general public – can make an informed, rational decision about whether a project is in our best interest. We are afforded notice and comment periods, public hearings and a right to appeal. Why do we go to these great lengths to include the general public in every major environmental decision? Because the air and water belong to all of us.

Unfortunately, in the past week, our due process has not been respected. And the tragedy of the commons? It’s playing out right here in our own backyard.

On Tuesday, a wetlands bill that makes it easier for developers to destroy Wisconsin’s wetlands – an important part of our natural heritage – was rammed through a Senate floor vote just after midnight, without the amendments that were needed to provide a minimum protection for our wetlands.

Yesterday, the Senate Select Committee on Mining Jobs was dissolved shortly after a Senate mining bill was released. Instead, the Assembly mining bill (AB 426) – the worst piece of environmental legislation in decades – was introduced as is, without consideration for the concerns of the tribes, environmental groups, or the citizens of Northern Wisconsin who now face a serious threat to their environment. The bill is a corporate giveaway, plain and clear. It gives one company, Gogebic Taconite, the right to operate outside the law, with little public input and no due process for the public.

Due process is slippery, but we’ve got to hold on to it. Without due process, we will all fall victim to the tragedy of the commons. And the only winners will be one out-of-state mining corporation.