The Republican-led state Legislature has rejected an executive order from Gov. Gretchen Whitmer that would have abolished a pair of controversial environmental review boards.
The business-backed panels are meant to be a watchdog over the Department of Environmental Quality’s rulemaking and permitting processes, according to supporters, who also asked Whitmer to give them a chance to work.
However, critics say the boards — which include 25 appointees from former Gov. Rick Snyder — are driven by industry interests and give power to unelected members over the administration on permitting decisions. Whitmer has called the boards unnecessary bureaucracy that limit the state’s ability to quickly respond to hazards like drinking water contamination.
Former Gov. Rick Snyder approved the panels in June, after a four-year push from the Michigan Chamber of Commerce.
On Feb. 14, the Senate approved a resolution 22-16 rejecting Whitmer’s executive order from earlier this month. The House voted 58-51 a week before, also along party lines, marking the first time since 1977 that the state Legislature blocked an executive order.
While Republicans’ main sticking point was eliminating the environmental review panels, the order also reorganized and renamed the Department of Environmental Quality, created an office on climate change, and established public advocates for clean water and environmental justice, among others.
Democrats criticized Republicans for abolishing Whitmer’s clean water efforts, though supporters say the characterization is unfair.
“I’m a little disturbed by the continued drumbeat that says those who support this legislation … are somehow against clean water for children, clean air, and don’t care about communities,” Sen. Ed McBroom, R-Vulcan, said on the Senate floor.
“The truth of the matter is: Who is watching the watcher,” he added, referring to the DEQ.
Several Democrats spoke in opposition to the bill, including Sen. Jeff Irwin, D-Ann Arbor.
“Powerful special interests last year passed special legislation to create polluter panels,” Irwin said, adding that he would support “real citizen panels” instead of the current structure. “These polluters are counting on us to support their continued success in delaying our responsibilities.”
Other critics include Snyder’s former DEQ Director Heidi Grether, who has said the permit-review board gives unelected members the final decision on permits over the administration.
The Chamber maintains that the 12-member Environmental Rules Review Committee and the 13-member Environmental Permit Review Commission act as a check on the DEQ.
In particular, Chamber President and CEO Rich Studley and former state Sen. Tom Casperson — who spearheaded the effort to create the boards — have been critical of DEQ staff.
“These are the unionized bureaucrats who tell farmers that a mud puddle is a wetland and can’t go forward to plant a crop in the spring or summer,” Studley said Feb. 11 on the Steve Gruber Show on WJIM-AM.
Studley also publicly shot back at Grether this month after she submitted testimony urging lawmakers to back Whitmer. Grether said permitting approval times have improved and the panels create regulatory uncertainty for businesses. As well, the panels themselves raise legal questions about the state’s ability to enforce the federal Clean Air Act and Clean Water Act, according to Grether.
On Feb. 6, Whitmer asked Attorney General Dana Nessel for a legal opinion on whether the boards violate federal environmental laws. Nessel was still reviewing the panels as of press time.
In her letter to lawmakers, Grether identified as an “advocate for the business community.”
“It is critical that Michigan has a business climate that provides clear and concise guidance to the business community on the steps necessary to obtain a permit from the Department of Environmental Quality,” Grether wrote. “Permit clarity is critical to their commitment of resources necessary to open a new business or add a new production line to a current facility. That certainty is only possible when the Director of the department is the final decision maker on a permit.”
Studley responded on Twitter: “Not surprised to read that a weak & inefective [sic] former Director of the troubled DEQ, who was captured by the bureaucracy soon after taking the job, is opposed to more openness, accountability and stakeholder involvement in the regulatory process.”
The Rules Review Committee has representatives from agriculture, oil and gas, utilities, small businesses, public health, manufacturing, solid waste management, the environment, land conservation, local government and the general public.
The state’s formal environmental rule-making process typically involves a stakeholder group of experts who provide input on proposed changes.
By law, the committee adds another layer of oversight to that process. It had its first organizational meeting late last year and was set to consider a “non-controversial” rule related to oil and gas before Whitmer abolished the committee, said chairman Robert Nederhood, an attorney and former deputy director of the state’s Office of Regulatory Reinvention under Snyder. The committee also can decline to further review rules if it’s deemed unnecessary.
Nederhood declined to comment on the political debate taking place.
Based on his experience, though, “there certainly is room and I think it benefits the state to have a process where all interested parties can get around the table and talk about the rules. This enshrines (the stakeholder process) into state law, and makes sure those discussions are happening.”
Helen Taylor, the Michigan state director for The Nature Conservancy who also serves on the Rules Review Committee, said before the Senate vote that she is neutral on whether to abolish the boards.
“I’m really supportive of the legislature and the governor working this out,” Taylor said. “I’d like us to develop more capacity for collaboration rather than these bold moves that are in conflict. I can see both sides.”
The Permit Review Commission includes private- and public-sector engineers, geologists, attorneys, conservationists and consultants. A main criticism from Grether and others about the commission is that it could overrule the department director on permits. However, supporters have testified before the Senate Oversight Committee regarding costly and arbitrary permitting processes in the Upper Peninsula.
Jason Geer, director of energy and environmental policy with the Michigan Chamber, said complaints about the state’s environmental rule-making process span decades. The new oversight structure is modeled on Indiana’s process.
“When you narrow the scope (of the members), you tend to draw the right people,” Geer said, responding to industry groups’ representation. “I don’t care who is represented, each member has to make a public statement and vote. It will be a public forum.”
As for permitting, Geer added: “These panels are created for one simple reason: To shine a light on staff decisions. If the staff does its job, these panels will only meet when they need to.
“We vehemently disagree with the notion that providing more rights to citizens in this process is bureaucracy. That’s ridiculous.”
James Clift, policy director for the Michigan Environmental Council, disagrees. The rules review committee could stall a proposed rule for at least a year, he said, and there’s ambiguity in the law about how a rule goes through the formal process.
“The main problem with the committee is it’s controlled by the industry and has the ability to stymie or significantly delay a rule package, therefore you have a regulated community now able to regulate themselves,” Clift said. “From an accountability standpoint, I think that’s problematic.”
Clift adds that the committee “does not have nearly the expertise” of the state’s stakeholder groups already involved in the process. Clift has participated in several of these groups over the years, which he and Grether say convene in virtually every instance.
Clift adds that the Permit Review Commission is “even worse” than the Rules Review Committee.
“You get into a situation where the state would have to be forced to issue a permit or agree to conditions by the committee that they didn’t agree to,” he said. “They’d have to actually apply the decision the next day. In our mind, it’s a waste of state resources.”
Members of the two boards in question also lack gender diversity. Of 25 members, just three of them are women. A third, albeit less controversial group, the Environmental Science Advisory Board, is made up of university researchers and private-sector scientists and includes five women and four men.
Snyder was traveling and could not be reached for comment on the appointments, a spokesperson said.
Geer dismissed this critique of the boards, saying they are voluntary positions and there are “only so many people who can do a good job representing stakeholder groups. That’s kind of a ridiculous conversation, if you ask me.”
While she said she hadn’t considered the lack of diversity on the boards, Taylor said: “Diversity is really important. I would hope we could achieve a committee that has diversity across knowledge and expertise.”
Clift said the boards’ makeup reinforces accountability questions.
“Obviously, that lack of diversity shows how disconnected they are from who I would have expected Gov. Whitmer to appoint,” he said. “These people are not accountable and in no way reflect the voters of the state of Michigan and who they have elected.”