Nick Krieger (@nckrieger) and Nate Smith-Tyge (@smithtyge):
Remember way back, like two weeks ago, when Governor Rick Snyder announced his intention to direct the Michigan Department of Environmental Quality (“MDEQ”) to promulgate a new state Lead & Copper Rule that is stricter than its federal counterpart? It appears that some Republican state lawmakers didn’t get the memo.
House Bill 5613, introduced today by State Representative Triston Cole (R-Mancelona) and eight of his GOP colleagues, would generally prohibit any state agency from issuing regulations that are more stringent than the parallel federal guidelines.
While it is true that HB 5613 would provide exceptions for emergency rules and special cases in which “the director of the agency determines that there is a clear and convincing need to exceed the applicable federal standard,” the legislation does not define “clear and convincing need,” thereby rendering this exception largely arbitrary and meaningless.
What’s more, even assuming that the exigencies posed by the Flint Water Crisis would constitute a “clear and convincing need” sufficient to overcome the legislation’s general prohibition, the bill is clearly designed to have a chilling effect on administrative rulemaking and send a message to state departments that seek to exceed the parallel federal standards. What is that message, exactly? That any new regulations will be heavily scrutinized by the Legislature, which has the authority to suspend or overrule any administrative rule that it finds objectionable.
Just last month, several GOP state senators introduced legislation (Senate Bill 827) that would further strip the MDEQ’s rulemaking authority by creating a statutory oversight committee of solid-waste, manufacturing, oil-and-gas, agribusiness, and chamber-of-commerce representatives with the power to veto any proposed MDEQ rule before it is even released for public comment. As you probably know, MDEQ is the agency that is primarily responsible for regulating issues such as drinking-water safety and environmental health.
And the issue isn’t limited to Flint. For example, Michigan courts have previously upheld the MDEQ’s authority under the Natural Resources and Environmental Protection Act to promulgate groundwater-discharge and agricultural-runoff rules that are stricter than the applicable federal guidelines. State environmental regulations like this would presumably be invalid under the proposed legislation as well.
Before you pick up your torches and pitchforks, you should know that HB 5613 will probably never become law. In 2011, Snyder vetoed a very similar bill after it had passed the Michigan House and Michigan Senate. In his veto message, Snyder specifically cited several instances in which the MDEQ had protected the Great Lakes by implementing state rules that exceeded the federal standards. If HB 5613 should happen to pass both chambers of the Legislature, let’s hope Snyder sticks to his guns and vetoes it just like the last one.
In the end, even if HB 5613 and SB 827 are never enacted and signed into law, these bills prove just how tone-deaf and out-of-touch Michigan’s legislative majority really is. Only time will tell if Snyder can convince these hostile lawmakers to allow his executive-branch agencies to promulgate new environmental regulations.
On June 7, 2016, HB 5613 passed the Michigan House by a vote of 61-47. The bill now heads to the Michigan Senate for consideration.