(Source: MIRS.news, Published 05/17/23) Senate Democrats approved legislation undoing Michigan's nearly 5-year-old "No Stricter Than Federal" statute for environmental regulations, permitting state agencies to explore more rigorous restrictions in non-emergency situations.
During Wednesday's Senate session, before his SB 14 was approved by a party-line vote, Senate Energy and Environment Chair Sean McCann (D-Kalamazoo) described the Snyder-era cap on environmental mandates as being poorly defined, confusing and as presenting a potentially lengthy justification process that would prevent Michigan "from acting swiftly to address environmental and public health crises".
The present-day "No Stricter Than Federal" law – the Administrative Procedures Act – was approved near the end of former Gov. Rick Snyder's administration.
It required state government agencies to share "clear and convincing evidence" when they aimed to address emergency circumstances with regulations more stringent than those enforced at the federal level.
Under SB 14, lawmakers could still halt any regulation changes or new precedents from a state department through the legislative Joint Committee on Administrative Rules (JCAR) oversight process.
While the passage of SB 14 is a victory for environmental groups like the state's Sierra Club chapter, the Michigan League of Conservation Voters and the Michigan Environmental Council (MEC), major business organizations in the state stood opposed.
In April, Michael ALAIMO, the environmental and energy affairs director for the Michigan Chamber of Commerce, expressed that the current statute "supported the idea that accountability matters when state governmental bodies make attempts to expand their regulatory scope."
He advised that the success of SB 14 would set the tone that Michigan is not open for business, and that companies and industries should think twice before investing in the state.
Additionally, the National Federation of Independent Business (NFIB) in Michigan reported that from 2010 to 2017, the average price for a small business with less than 50 employees to address federal regulations grew from $10,585 to $12,000 per worker.
"And now, well, the bureaucrats will have the reign of the day…so say goodbye to your dam community, say hello to toxic waste dirt knocked off of sugar beet farmers," said Sen. Ed McBroom(R-Waucedah Twp.) in opposition to the bill. "Say hello to $20,000 fines retired folks, because you got a second home – a shack in the U.P."
While on the Senate floor, McBroom asked where the evidence was revealing that the law kept Michigan from responding quickly to disasters, as well as evidence suggesting the Legislature was not reacting and delivering power to state bureaucrats to respond to emergencies.
"There is no evidence that we haven't been able to do that because we have. The demonstration is clear, just as clear as what was happening before this law when the bureaucracy had no checks, had no restraint, had no accountability…and now we're going right back to it again," McBroom said.
According to the MEC, a coalition made up of more than 90 Michigan-based member organizations, the "No Stricter Than Federal" law has negatively impacted rule promulgation among agencies. The council claims that concerns surrounding potential lawsuits and heightened litigation costs have outweighed intentions to create a new rule.
Environmentalists have referenced a November 2021 letter from then-Director Liesl Eichler Clark of the state's Department of Environment, Great Lakes and Energy (EGLE) to the U.S. Environmental Protection Agency (USEPA), asking the federal agency to call a summit dedicated to educating leaders throughout the country on how to implement nationwide standards in environmental justice communities.
The former director's letter was a reaction to Flint residents sharing their "deep frustration" toward the Troy-based paving contractor, Ajax Materials Corporation, acquiring a minor source permit under the federal Clean Air Act to construct a new hot-mix asphalt plant.
"Despite the significant progress EGLE continues to make in expanding the environmental justice dialog and integrating environmental justice principles into its daily actions, the permit action taken today highlights the limitations of federal and state environmental regulations in addressing the concerns raised by Flint residents," Clark wrote in her letter.
She furthermore asked the USEPA to conduct a supplemental review of the Ajax permit and to partner with EGLE in setting up greater understandings of the risks related to air toxins in Michigan's environmental justice communities.
On the otherhand, Sen. Dan Lauwers (R-Brockway) referenced successful legislation he sponsored as a state representative in the 2017-18 legislative term, loosening the state's ballast water discharge mandates for ocean-going freighters, which were more rigorous than federal regulations at the time due to distress around invasive aquatic species like Asian carp, zebra mussels and sea lamprey.
"We made our laws more restrictive than the Feds and more restrictive than the states around us, and we watched all of our shipping – you can track it – (move) out of Michigan…" Lauwers said. "Please think about the unintended consequences of this. Think hard about why we would do this and when we would do this and what impact it will have on our state."
Senate Minority Leader Aric Nesbitt (R-Lawton) offered an unsuccessful amendment to
SB 14 prohibiting an agency from adopting or promulgating a stricter-than-federal rule if Michigan's unemployment rate was greater than the national average for any consecutive three-month period in the past year.
Lauwers also attempted to attach SB 14 to SB 260, a bill blocking foreign government-affiliated enterprises from purchasing Michigan farmland.
Sen. Michael Webber (R-Rochester Hills) made a failed attempt to attach SB 14 to
SJR C, proposing that any rule or regulation promulgated by an administrative agency must receive majority approval in both the Senate and House if estimated compliance costs will reach $1 million or more within five years of implementation.
"With Michigan's aggressive economic development push into electrification, and the development of industries and suppliers that contribute to it, it will be even more important than ever to be able to rapidly adjust our vital environmental standards to ensure the health of the Great Lakes watershed," McCann said supportively, before his bill passed 20-18.
