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Showdown Over MDEQ Review Panels?

12 Feb 2019

Showdown Over MDEQ Review Panels?

As we previously blogged, Governor Whitmer recently issued two Executive Orders and one Executive Directive, all focusing on the environment. One of the Governor’s Executive Orders made a number of changes to the MDEQ. Citing the EO’s dissolution of two government panels and reorganization of a third, the Michigan House voted to overturn this EO and the Senate is moving in the same direction.

After the House vote, the Governor held a meeting with the press where she repeatedly said that the House had “voted against clean drinking water.” When asked about the EO’s panels, she said they had only met twice, weren’t essential and stood in the way of cleaning up Michigan’s water.
This is not intended to be an exhaustive legal analysis of all the questions raised but a few factors that are not receiving much attention of yet.

The Panels in Question

The Rules Committee’s charge is to review draft rules to ensure that the proposed rules: (a) do not exceed the law’s rule-making delegation of authority; (b) reasonably implement and apply the law authorizing the rules and are consistent with other applicable laws; (c) are necessary and suitable to achieve their purposes in proportion to the burdens they create; (d) are as clear and unambiguous as reasonably appropriate; (e) based on sound and objective scientific reasoning. At the end of the process, the law still leaves the ultimate regulatory decisionmaking with the Director of the MDEQ and the Governor.

The Environmental Permit Review Commission is to advise the DEQ Director on: (1) disputes related to permit applications and (2) contested cases regarding a permit decision. If a permit applicant challenges a permitting decision and the dispute is not resolved informally, the Director selects and convenes a three-person Panel from the 15 person Commission. The Panel hears both sides and makes a recommendation to the Director and applicant. The Director issues a written decision that either agrees or disagrees with the Panel’s recommendations.

In a contested case regarding a permit, an administrative law judge (ALJ) would preside, make the final decision, and issue the final decision for the DEQ. Any party to the case may seek review of the ALJ’s decision by a three-person Panel selected from the Commission. The Panel’s review would be limited to the record in the contested case and the Panel could adopt, remand, modify, or reverse, in whole or in part, a final decision and order. The Panel’s decision would become the DEQ’s final decision.

On the Governor’s side

There is no question that the Governor is legally authorized to reorganize the State’s administrative agencies . After the House vote, the Governor asked the Michigan Attorney General for an opinion on the legality of the Environmental Rules Review Committee and the Environmental Permit Review Commission. The Governor cited an April 2018 letter from the US EPA that raised questions about how these laws would impact federal programs where Michigan has been delegated authority to administer – including the Clean Water Act and the Clean Air Act. Advocates of the Panels state that the bills on which EPA commented were revised in response to EPA’s comments. However, in its letter, EPA indicated that it would likely request that the program revisions be submitted for review and would ask for an Attorney General opinion clarifying the laws’ impacts on the federal programs. That has not happened yet.

On the Legislature’s side

The Governor’s statements regarding clean water and the panels are hyperbole. The Rules Panel was only appointed in October of 2018 and the Permit Panel was appointed in August. That there have only been two meetings thus far proves nothing regarding their efficiency or impact on Michigan’s environment. The Governor seems to be conflating the fight over these two panels with her entire EO, brushing off a question about the possibility of reissuing the EO without eliminating the panels.

The legal issue at stake

No one questions the Governor’s right to reorganize the DEQ. That authority is clear in the Constitution and State law. However, my research hasn’t found anything addressing this exact issue. What this may turn on is a discussion regarding the separation of powers between the Legislature and the Governor and an arcane definition in the Executive Organization Act of 1965 which defines a “type III transfer” as one abolishing an existing commission and its powers and functions are transferred to a principal department of the State. Are the functions transferred when a legislative process has been eliminated? Does the Governor have the right to effectively undo laws passed by a prior administration by executive fiat?

These are the kinds of arcane question lawyers live for and everyone else dreads. Time will tell but it does seem like the Governor is trying to prove she won’t be pushed around – whether that is a good use of her political capital, when most Michiganders care more about the roads and schools than they do about two panels, remains to be seen.

New Governor: New Priorities; New Organization

4 Feb 2019

Soon to be a relic of the past?

Governor Whitmer is moving quickly to put her stamp on an agency that is important to her goals. Given her campaign slogan of “fix the damn roads” it is somewhat of a surprise that her second and third Executive Orders relate to the MDEQ – or as it will be known going forward, the Department of Environment, Great Lakes and Energy (DEGLE or EGLE?).

It is not uncommon for new governors to try to recreate the MDEQ in their own images. In 2009, Governor Granholm merged the DNR and DEQ into one agency  and, in 2011, Governor Snyder split them up again.

In addition to the name change, Executive Order 2019-2 also creates new offices within the Department including the offices of: (i) Climate and Energy; (ii) the Clean Water Public Advocate and (iii) the Environmental Justice Public Advocate, as well as the Interagency Environmental Justice Response Team. There is a focus on “assuring that all Michigan residents benefit from the same protections from environmental hazards” and integrating environmental justice concepts into agency decision making. The Clean Water Advocate appears to be both an ombudsman and a change agent relating to drinking water concerns. The Office of Climate and Energy is to focus on both improving governmental mitigation of climate impact and climate change adaptation and to provide guidance and assistance for greenhouse gas reduction. The old Office of the Great Lakes housed in the DNR and the Agency for Energy are now housed in the DEGLE. Also, the Permit Review Commission created last summer is abolished.

Executive Order 2019-3 attempts to strengthen the Michigan PFAS Action Response Team (MPART) created by Governor Snyder to help inform the public about perfluoroalkyl and polyfluoroalkyl substances (PFAS), locate contamination, and take action to protect sources of drinking water from these chemicals.

Executive Directive 2019-12 enters Michigan into the U.S. Climate Alliance, a bipartisan coalition of governors from 19 other states that are committed to reducing greenhouse gas emissions consistent with the goals of the Paris Agreement.

These actions are consistent with Governor Whitmer’s focus on Flint during the campaign, her campaign promises and Director Clark’s past experience and expertise in alternative energy. At this point, with no new resources, how the reconstituted agency will take on these new roles or what functions will receive less priority will be questions that Governor Whitmer and Director Clark will have to answer.

Brownfield Funding Legislation Enacted

5 Jan 2017

law

The bills passed.  At last.  As you may recall from two years ago, I served on an MDEQ-led task force to  review and improve the “patchwork quilt” of statutes and rules regarding brownfield redevelopment incentives, grants and loans.  A CSI II group (of which, in full disclosure, I chaired the Legislative Committee) met regularly in 2014.  The changes certainly would’ve been introduced earlier but the Flint Water Crisis happened and everyone’s attention was diverted. Earlier this year, a package of six bills was introduced in the Legislature; on the 15th they were passed and on  January 5, 2017, the Governor signed them.  They take effect in 90 days and are now 2016 Public Acts 471-476.

These changes streamline, simplify and speed up the process for loan, grant and TIF approvals to enable projects to get started faster than ever before while supporting a greater range of eligible activities than previously available.

The most significant changes include:

  • demolition, lead abatement, asbestos abatement dredging and excavation of uncontaminated but unusable soils may be eligible for grant and loan funding, subject to certain criteria and prerequisites (such as a threshold that at least 51% of the eligible activities are part 201 type expenses);
  • one can be technically liable under Part 201, TSCA or RCRA and still be eligible for grant, loan or TIF funding – previously, even someone who submitted a technically deficient BEA was barred from eligibility – with a renewed emphasis on remediation and redevelopment, only those who actually caused contamination are barred from eligibility, again, subject to certain criteria and prerequisites;
  • while the definition of “eligible property” was changed very little, activities eligible for funding through TIF are broadened to include such things as due care expenses, UST removals, solid waste disposal, sediment removal and disposal (where either the sediments or the upland are contaminated), plan preparation and implementation costs (subject to certain conditions and caps), including the costs to track plan compliance and a clearer set of sheeting and shoring costs;
  • overall streamlining of the application and review processes in an effort to speed up the TIF process including giving greater authority to the Michigan Strategic Fund to approve plans of up to $1 Million without waiting for a Fund Board meeting.

There was some tension between those championing redevelopment and those focusing on environmental remediation but, ultimately, the set of changes to the rules and statutes clarifying the process for obtaining loans, grants and tax increment financing for brownfield redevelopment. Not every issue was agreed upon and there was a list of so-called “parking lot issues” (either because they were discussed at length in the parking lot after the meetings or because we “parked them” there as we couldn’t reach consensus).  Hopefully some of these will be addressed in the near future but these changes should streamline, simplify and speed up the process for loan, grant and TIF approvals to enable projects to get started faster than ever, while supporting a greater range of eligible activities than previously available.  Given the Legislature’s unwillingness to approve other similar bills, this was a real accomplishment for brownfield redevelopment in the State of Michigan.

The votes are in – now comes the hard part

13 Oct 2014

Photo Credit: Christine Cousins, www.christinecousins.com

Photo Credit: Christine Cousins, www.christinecousins.com

Each of the major players (Detroit and Wayne, Oakland and Macomb counties) have now all approved joining the newly formed Great Lakes Water and Sewer Authority; so, we’re good to go and everything is fine, right?  Well, not so fast.  All the votes mean so far is that the Authority exists and that it has four members under the terms of a Memorandum of Agreement and Articles of Incorporation.  Frankly, there wasn’t much doubt that it would be approved and the only question was Macomb.  Once Detroit and Wayne approved it (which was fairly certain), if Oakland or Macomb didn’t, the governor would appoint their representatives and  they could be charged more than those who joined. Landlocked Oakland was a “gimme.” Macomb, with access to Lake St. Clair could have opted to develop its own system – as others have done. (more…)

Four Years of Michigan Green Law

17 Mar 2014

NewPicture1Well, today marks four years of blogging on environmental issues of interest in Michigan. After about 1,400 days, over 370 posts and 24,000 people checking us out, it’s been a fun interesting run thus far.

The best present you can give us is to keep reading, subscribe, keep commenting and, if you’re so inclined, please pass the blog onto your friends and colleagues! If you have a question or a topic for a blog post, please let us know!

New legislation seeks to ban microbeads

26 Feb 2014

Courtesy of 5 Gyres

Courtesy of 5 Gyres

In this Michigan Green Law post from December and this post from last July, Arthur mentioned how plastic bits were being found in the Great Lakes and that “microbeads” found in toothpastes and various body washes may be the prime culprit.  Well last week, New York Attorney General Eric Schneiderman and Assemblyman Robert Sweeny introduced the Microbead Free Waters Act, which bans the tiny plastic beads used in facial scrubs, shampoos, body washes and toothpaste.  The legislation comes after high concentrations of small plastic microbeads were found in the Great Lakes last year.

5 Gyres, an organization aimed at reducing plastics pollution (and mentioned in Arthur’s July post), was heavily involved in preparing the legislation.  If the legislation becomes law, it will make New York the first to ban the sale of microplastics in personal care products.  It will be interesting to see if and when other states around the Great Lakes follow suit.

Click here for more on 5 Gyres and the proposed legislation.

LIFX smart bulbs now available

14 Oct 2013

 

Image: LIFX.Kickstarter

Just over a year ago, I blogged about the LIFX smart bulb, a Kickstarter funded project.  At that time, the project had just been fully funded (in record time) and production on the first batch of bulbs was about to begin.

As you may remember, LIFX is an energy efficient, multi-color LED bulb that can be controlled by a smartphone.   LIFX can also be turned on and off from an existing light switch – just like a regular light bulb – so you won’t be left in the dark (or light) if you lose your smartphone. 

The first batch of bulbs produced went to those who funded the Kickstarter project and the second batch already sold out.  No need to worry, however, as you can pre-order bulbs from the third batch which is expected to ship (and have limited retail availability) in the first quarter of 2014.  The ultimate price?  $89 plus shipping for an individual bulb ($85 each if you purchase 4 or more). 

It is unfortunate that the third batch won’t be ready in time for the holiday season as LIFX would certainly make for an interesting gift.