Republicans: Michigan shouldn’t regulate more strictly than Washington

An inspector for the Michigan Department of Environmental Quality scrutinizes a barrel believed to contain PFAS chemicals.

By Jim Malewitz, Bridge Magazine

LANSING — Michigan Republicans could pass legislation this week to make it far harder for state agencies to adopt regulations stricter than those of the federal government.

Supporters say House Bill 4205 would help Michigan attract and maintain businesses that want uniform standards state-to-state. Critics contend it’s yet another power grab in the lame-duck session that would limit powers of Democratic Gov.-elect Gretchen Whitmer and her ability to combat problems unique to Michigan such as industrial contamination.

Rep. Triston Cole, R-Mancela, proposed the bill in February 2017. It cleared the House the next May before languishing in the Senate for more than a year.

The Senate abruptly took up the bill on Wednesday and approved it. The chamber’s 24-13 vote came one month after Whitmer defeated Republican Bill Schuette in the race for governor.

The legislation will head to Gov. Rick Snyder’s desk if the House signs off on minor Senate amendmendments. Snyder, a Republican, vetoed similar legislation in 2011. He has not publicly weighed in on the current bill, which gives agencies wiggle room to approve tougher regulations in certain circumstances.

House Speaker Tom Leonard said his chamber will vote this week, and he supports the measure.

“When you get rid of burdensome regulations, that allows the economy to thrive,” he told reporters Thursday.

Democrats said the bill’s revival fits into a Republican strategy to shrink the powers of Whitmer and other incoming Democrats — Attorney General-elect Dana Nessel and Secretary of State-elect Jocelyn Benson — in the final days of a lame duck session.

“It’s clear that it’s bumped up to the top of their priority list because we elected a Democratic governor, and they want to pull back her powers,” Rep. Yousef Rabhi, D-Ann Arbor, told Bridge Magazine.

“It’s an unnecessary, backdoor way of diminishing our state’s ability to do what it needs to do.”

Other bills this month would take away power of the Secretary of State to regulate campaign finance, allow the Legislature to intervene in lawsuits and restrict the governor’s ability to appoint the director of the Michigan State Police.

Cole said the regulation legislation’s fresh momentum has nothing to do with November’s election results.

“This is something that’s been worked on all along — before the election,” he told Bridge. “Clarity is very important, and this is part of the transparency, clarifying why rules are put in place.”

The bill applies to all agencies, though it exempts rulemaking related to special education.

It would allow new rules stricter than Washington’s only if an agency shows a “clear and convincing” need due to “exceptional circumstances.” The legislation also exempts temporary rules adopted during emergencies.

Industry groups such as the Farm Bureau and Michigan Manufacturers Association have supported the bill. Agencies would keep flexibility to respond to craft unique regulations, backers say — as long as they prove their case.

“Manufacturers in Michigan must know that they can compete on equal footing with businesses in other states and this legislation assures them that,” Andy Such, director of regulatory and environmental policy for the Michigan Manufacturers Association, said last year after the House’s first vote on the bill.

Environmentalists are among the bill’s loudest critics.

Sean Hammond, deputy policy director of the Michigan Environmental Council, called the “clear and convincing” standard a high bar to meet in court, and suggested the rule would make agencies more vulnerable to litigation.

“What we see here is a protracted legal battle on everything, and that’s a long time for agencies to way to protect public health,” he said.

The bill comes as state environmental and health agencies are responding to PFAS, harmful industrial chemicals regulators are increasingly finding in Michigan waters. Environmentalists and residents of contaminated communities are calling for a state drinking water standard to force action when utilities detect PFAS.

The federal government has no such standard, even though states nationwide are grappling with PFAS.

It’s unclear how the legislation would affect Whitmer’s ability to craft drinking water standards –  in part because the EPA now lacks any on PFAS.

Hammond said he feared the bill would hamstrung any state regulations on PFAS.

“These are national health crisis, so trying to justify that there’s something exceptional about Michigan is going to be a very high bar,” he said.

Rep. Donna Lasinski, D-Ann Arbor, said she fears the bill would muddle state efforts to address a plume of the chemical 1,4 dioxane that is slowly spreading beneath her hometown of Ann Arbor, because the federal government hasn’t set a drinking water limit for that toxic chemical.

“This is putting obstacles and hurdles again and again — in the way of providing clean and safe drinking water,” she said.  “It’s not good enough for a state with the nation’s largest supply of freshwater.”

Cole said he does not intend to impede state action on PFAS or another contaminants, and he’s working on new language to clarify agencies could adopt standards when Washington has none.

“It does not limit Michigan, it does not limit the Legislature from passing rules that are stricter than the federal government, and the bill’s not retroactive,”  he told Bridge.

John Dulmes, executive director for the Michigan Chemistry Council, said his group supported the measure, though he acknowledged the references to “strictness” are vague and could be hard to define in some circumstances.

Dulmes said his group wants wants agencies to offer “clear and convincing” proof a rule is needed regardless of whether the bill becomes law.

Snyder vetoed a similar bill in 2011, his first veto of as governor. That bill “would inhibit the state’s ability to work with businesses and citizens to ensure that our regulatory structure fits Michigan’s unique profile,” he wrote at the time.

But the 2011 legislation was more limiting than the current proposal, because it did not give agencies leeway to argue for tougher standards under exceptional circumstances.

Cole said he believes Snyder is now more comfortable with the proposal.

Ari Adler, a Snyder spokesman, would not say whether the governor supported the bill.

Jim Malewitz

Jim Malewitz reports on the environment for Bridge. Based in Lansing, but with plans to scour both peninsulas, he is looking for stories about how public policy, climate change and other phenomena affect the state’s trove of natural resources – all while leaders tout the “Pure Michigan” brand.