Nick Krieger (@nckrieger):
Remember last spring when Governor Rick Snyder announced that he would call upon the Michigan Department of Environmental Quality (“MDEQ”) to promulgate a tough, new Lead & Copper Rule that is even stricter than the federal standard? That rule is getting less and less likely by the day.
In the modern administrative state, executive agencies are responsible for regulating many different activities. By way of example, Michigan law gives the MDEQ broad powers to promulgate rules and regulations concerning safe drinking water. Such administrative rules have the force and effect of law, even though they are implemented by the MDEQ rather than by the Legislature.
The Michigan Legislature has great authority to veto or overrule administrative rules that it finds unlawful or objectionable. For instance, the Legislature may suspend the implementation of agency rules or rescind a regulation through the enactment of countermanding legislation.
But what if the Legislature doesn’t want to actually veto an administrative rule? After all, legislators are politicians, and politicians tend to be concerned about the “optics” of any decision. Imagine the negative publicity that would result if the Legislature took affirmative steps -- in the wake of the Flint Water Crisis -- to overturn a new Lead & Copper Rule issued by the MDEQ. The outcry would be tremendous.
If only the Legislature had the power to delay the implementation of a proposed rule for a long period of time without actually vetoing it. Wouldn’t the “optics” be better if the Legislature could delay a new Lead & Copper Rule for the professed reason of studying the issue or considering legislation on the matter? Hmm . . . .
On Thursday, the Michigan Senate passed SB 962 (S-1), which would give the Legislature the power to do just that. SB 962 was approved on a nearly party-line vote, with all but one of the 27 Republicans voting in favor, and all 10 Democrats voting in opposition. SB 962 would give the Legislature’s Joint Committee on Administrative Rules authority to (1) delay an administrative rule for up to a year by proposing legislation on the same subject, regardless of whether that legislation ultimately passes, or (2) delay an administrative rule indefinitely by repeatedly sending it back to the agency for changes.
SB 962 now moves to the Michigan House of Representatives, which has proven itself to be even more reactionary than the Michigan Senate. Indeed, the Michigan House has already passed legislation that would generally prohibit any state agency from issuing regulations that are more stringent than the parallel federal guidelines.
As I wrote last spring, the current majority in the Michigan Legislature has grown increasingly hostile toward executive agencies and administrative rulemaking, especially in the context of environmental protection. SB 962 is one more Republican attempt (and here’s another) to shut down the administrative rulemaking process and prevent the implementation of necessary regulations. I won’t be surprised if we never see that tough, new Lead & Copper Rule that Governor Snyder promised.