Eureka! Seeing the Light on Local Control

Just recently the WMC Litigation Center—an affiliate of Wisconsin Manufacturers & Commerce (WMC)—filed a lawsuit on behalf of two taxpayers against the town of Eureka, alleging the town’s permitting requirements for livestock farms are unlawful.

And that they are. At least in my take, it’s just another example of “local control” gone wild.

In this case, the town adopted an ordinance requiring fees and permits for Concentrated Animal Feeding Operations (CAFOs) that WMC correctly says are inconsistent with state law. In fact, as the complaint states, Wisconsin’s Livestock Facility Siting Law and its regulations preempt almost all local regulation of the permitting process for new or expanded livestock facilities.

The town of Eureka simply ignored the law in enacting its own ordinance. Local control, you know. So Ben and Jenny Binversie of Luck sued.

It’s hard not to read the law the way WMC reads it. For example, WMC points out that the ordinance requires farmers to “pay a non-refundable fee of $1 per proposed animal unit” as an application fee, but the fee is inconsistent with state law because it could exceed the cap of $1,000 set by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).

The town’s ordinance also requires that an engineer or geoscientist attest to the applicant’s plan for transportation, waste, animal health, odor and air pollution, property values, and more, WMC states—all of which plaintiffs say are preempted because they are not one of the narrow and explicit statutory exceptions enumerated in the siting law.

In the complaint, WMC also observes that the Eureka ordinance requires a preexisting livestock facility to apply for a permit if “its owner or operator proposes to house a different livestock species.” However, the complaint contends, state law preempts that requirement: “Except as provided in sub. (2), a local ordinance may not require local approval under this chapter for . . . [a] livestock facility that existed . . .before the effective date of the local approval requirement.”

As for that single exception in sub (2), it states that a municipality may require local approval for the “expansion of a pre-existing or previously approved livestock facility,” but WMC says that does not apply, either: “… [This] ordinance section applies to a preexisting livestock facility that is proposing only to house a new livestock species, without proposing to expand,” the complaint states.

The list goes on and on, and what becomes clear is the town is out to make it virtually impossible to site a CAFO, no matter what the law says.

“Taxpayers are unfairly and unlawfully on the hook to pay for the legal fees, administrative fees and inspection fees under an ordinance that is clearly in violation of state law,” said WMC Litigation Center executive director Scott Rosenow. “This ordinance is quite simply another case of government overreach.”

Speaking on Meg Ellefson’s radio show, WMC executive vice president Scott Manley said the ordinance represents a burdensome and unnecessary regulation on Wisconsin’s farmers.

“If we allow local governments like the town of Eureka to violate the law, we’re going to endanger and potentially kill a vital aspect of our state’s economy,” Manley told Ellefson. “These farms already have a mountain of regulations.”

To be sure, CAFOs are a hot button issue these days, and the left was apoplectic over the lawsuit. Here’s how columnist Bill Berry put it in the Cap Times: “What a load. The only overreach here is a pliable state government that genuflects when WMC says to.”

The issue here, though, is not so much whether Eureka’s ordinance is good or bad, or whether the legislature genuflects when WMC says to, the issue is representative governance and the rule of law—two values leftists routinely forget to genuflect to.

The bottom line is, whether the state legislature’s preemption of local government in CAFO regulation is good or bad, it is a duly enacted law, and it is the obligation of the local government to follow it. If leftists don’t like the law, then they should lobby the legislature to change it, and, failing that, seek to elect a new legislature.

In the meantime, the town of Eureka and any other town wishing to follow its lead should obey the law in place without forcing affected parties into litigation that is expensive for everyone involved, including taxpayers.

All this gives us an opportunity to revisit the very idea of local control. We hear a lot about local control these days, mainly from local government officials and progressives who want more control—not for the people, but over the people.

From CAFOs to sulfide mining to shoreland zoning, many local governments have been chafing under restrictions on their ability to be more restrictive than the state or to deviate from state law, but mainly in cases in which “local control” would benefit liberal identity groups.

Many of the legislative restrictions on local government were put into place by a Republican legislature—and signed by a Republican governor, Scott Walker—and that has given the left a boatload of ammo to accuse the Republicans of authoritarianism and hypocrisy. After all, Republicans are supposed to favor local control and less government, right?

But it all needs to be put into constitutional context.

First, counties and towns are not sovereign government entities. They exist for two reasons and two reasons only: to implement state policies and to deliver state services. They are administrative divisions of the state whose existence depends on laws enacted by the legislature, which determines their duties and powers, though cities and village have some flexibility with home rule.

Local officials may grumble that they are limited by statute to doing only what state law allows, but that’s the point: Counties are an administrative arm of the state, nothing more, and, as the Wisconsin Towns Association itself states, towns “can only implement those functions specifically authorized by state law.”

In other words, towns are administrative vehicles of service delivery. They are there to enact state policy, as a rule. Their powers live and die at the discretion of the state.

Ah, but what about the value of local control? While it may be argued that the government closest to the people best serves the people, it can also be argued that the government that governs least is the best government, and that’s not always the local government.

Government is government, and that means it will be prone to excess, no matter whether it’s a local government or a state government or the federal government. To paraphrase Thomas Jefferson’s observation about judges, local government officials are no less partisan or honest than any other government officials. So, when towns (and counties and cities and villages) act excessively and overreach their authority, when they violate constitutional rights, it is the state’s duty to step in and stop them.

To its residents, a big, out-of-control local government is as bad as a big, out-of-control state government.

When it doesn’t conflict with state policy, local control is a very good thing. It’s an important conservative principle because it preserves direct citizen access to government, if not direct democracy, and it provides the most efficient vehicles for both the delivery of services and the hearing of individual grievances.

It allows citizens to effectively petition their government. You’re far more likely to make it to the county courthouse or town hall to say your piece than you are to travel to Madison to do so.

Even in the Eureka case, the state CAFO law allows communities to apply more stringent regulations than counterpart state standards if they can produce “reasonable and scientifically defensible findings.” That’s sensible local control. The problem for Eureka is that it is trying to enact local requirements in addition to the state standards, not make a demonstrable case that existing standards won’t protect them. True local control tailors state policy to local needs; this ordinance tries to evade that policy altogether.

And here’s a more important conservative principle: When local control comes into conflict with individual liberty and constitutional rights, individual liberty and constitutional rights must prevail. A tyranny of the majority is no less evil on the local than on the federal or state level. Conservatives must be no less vigilant about preserving individual rights at the local level than at higher levels, and indeed we probably have to be more vigilant.

In The Federalist papers, James Madison warned of the dangers of smaller governments to violate individual liberties. He was talking about the value of a large republic, but the concept can be aptly applied to smaller communities and government subunits: “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”

The unity of the few is even more pronounced in those polarized times.

Texas businesswoman and former Republican state senator Konni Burton once put it this way when she addressed members of her own party who were singing the local control tune: “Local control is a tool, not a rule, and it’s past time Republican state leaders stopped eschewing our rightful place as the promoters and defenders of liberty against all encroachments, even if they come from our own political subdivisions.”

Which brings me to a final point about local control in Wisconsin. In the current era, with a Republican legislature that has actively followed Burton’s advice and put a halt to multiple constitutional transgressions by local governments, it is Democrats yelling about local control.

But back in the era of Gov. Jim Doyle’s regime, it was the state—namely, the DNR—that was trampling private property rights, sometime ruining lives in the process. Yet all we heard then from Democrats was that local efforts to be less restrictive than new state regulations—local regs based on rational and science-based evidence that the more restrictive regulations needed in polluted areas were not necessary in undeveloped areas where no development covered less than 2 percent of any watershed— were the product of tyrannical local governments who were infringing upon the public trust guarantees of the state constitution.

These days they see no local government tyranny, but what’s good for the goose must be good for the gander. The Democrats are hypocrites and change their tunes about the primacy of local control depending upon the political agenda. Local governments didn’t have their way then, and they shouldn’t have their way now when it comes to constitutional rights.

For the most part, the state's so-called suppression of local control over the past six or so years is a legitimate attempt to restore valid constitutional rights to property owners who have had them stripped away by “distinct parties and interests,” to use Madison’s phrases, who have captured and use many local governments to “concert and execute their plans of oppression.”

More specifically, the left shifted its strategy when voters statewide rejected their extremist agendas over and over again after 2010. They realized that local government was the place to be, not because their policies were any more popular but because so many fewer people voted in spring municipal elections. Even a lightly organized cadre of progressive zombies could easily sleepwalk their way onto county and town boards.

It didn’t work in most places, but they were successful enough to make a difference in some localities, and that’s when we started hearing the flip-flop on local control. Before 2010, environmentalists cheered on the DNR as it threatened counties that dared to be less restrictive than the state with superseding ordinances.

Now local control that bids to be more restrictive than that same state is just what the doctor ordered, by these very same people.

And so there has been a growing infiltration of local politics by ideological partisans and organizations pushing statewide and nationalized political agendas. They are aggressively pursuing these dogmatic platforms by clothing them innocently in the language of localism.

Make no mistake about it, there’s nothing wrong with true local control—where the state gives policy options to counties and towns, recognizing that one size does not fit all, and lets the counties and towns control their own destiny.

But that’s not what the current brew of local control is all about. These days, as the case in Eureka demonstrates, it’s about defying state law, not choosing among options. Most of the state laws they want to defy are those designed to protect the constitutional property rights of homeowners and businesses.

The local controllers like to portray themselves as a grassroots swell of community activists but most often they are anything but. They are the same bad actors who used to work inside state agencies and for special-interest groups when they were trying to take away those same rights at the state level. Legislative Democrats never said a word about local control then.

There’s not that many of them, but it’s easy to fill a room and look big, and win elections, when the rest of the community isn’t paying attention. A sizable portion of them are NIMBYs—Not In My Back Yarders—who have joined forces with ideologues to protect their own pieces of elite paradise.

Perhaps somebody should ask town supervisors in Eureka and in other places trying to ignore state law or to usurp it not only about local control but if they intend to follow their oath to uphold state laws and the state and federal constitutions. Ask them if they intend to engage in legislative insurrection when it comes to shoreland regulations, CAFOs, or mining—and how they reconcile such insurrections with their oaths of office?

Most important, ask them, if a new county or town board was suddenly elected that wanted to be less restrictive than the state allowed, would they support that board’s actions in the name of local control, just as they support defying state law to be more restrictive than state law allows?

That last answer will tell you how they really feel about local control, whether they support local control as a true expression of the will of the people, or whether they favor or disfavor it based on a political agenda.

Never has true activism been so important on the local level. For we are talking about not just taxes, as important as they are; we are talking about much more than jails and roads and public health, as important as those things are.

We are talking about our constitutional rights — rights that, once surrendered, we will never get back.

Some places simply need more restrictions; others, less.

How all that would be structured is debatable, but the important point here is, progressives and Democrats are running a scam when they talk about local control. Read the fine print, and local control to them always means one thing: the local government can become more restrictive, but it never can be allowed to be less restrictive, no matter what the science says.

Local control is only useful to Democrats when it adds to the matrix of government regulation, not when it would diminish it.

For years Democrats have used this trope to hand unbridled power to the DNR and other agencies, and to their allies on overreaching county and town boards. Eureka is just another example. Legislative Republicans stepped in to the stop the unconstitutional overreach, as was their responsibility as state elected officials, and now WMC has headed to court to try to overcome outright defiance of the law.

Yes, local control is important, and, yes, one size does not fit all, but when it comes to being

more or less restrictive, local control needs to be a two-way street, not a one-way railroad.