LANSING — Gov. Gretchen Whitmer’s executive order to restructure environmental regulation — fulfilling campaign promises to act on Michigan’s tainted water and climate change — lasted all of 10 days.
The Republican-controlled Senate officially killed that plan Thursday following a series of party-line votes.
But the Senate’s 22-16 vote (following an earlier rejection in the GOP House) doesn’t end the political dispute over how best Michigan should manage its resources. That’s just getting started.
Here, we examine what’s next.
First, what did Whitmer want to do?
Whitmer’s order would have morphed the Department of Environmental Quality (DEQ) into the Department of Environment, Great Lakes, and Energy (EGLE), changes intended to prioritize threats to drinking water and address climate change and environmental justice.
The overhauled agency would have housed a new “Clean Water Public Advocate,” “Environmental Justice Public Advocate” that would accept citizen complaints. The agency would also contain a new“Office of Climate and Energy” and house the Office of the Great Lakes.
Whitmer also envisioned an interagency team — composed of agency directors across state government — to fix policies that disproportionately pollute low-income and minority communities from power plants and factories.
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But Whitmer’s also sought to abolish business-friendly panels lawmakers created by Republicans last year to oversee Department of Environmental Quality rules and permits. Powerful groups such as the Michigan Chamber of Commerce and Michigan Farm Bureau back the panels, describing them as a way to give the public a chance to discuss rules and air grievances over what they contend are overzealous state regulators.
Eliminating those panels is what drew most ire from Republicans, and triggered their vote to overturn the order.
Democrats say the panels give industry too much say in environmental decisions and would only hold up Whitmer’s plans to clean up Michigan water and take aggressive action against other cancer-linked contaminants such as PFAS.
Can Whitmer just issue another order?
Sure. The Michigan Constitution gives her the right to reorganize the government’s executive branch — and she could craft another order. But if Republicans still didn’t like it, the Legislature could again overturn it.
Following the House’s rejection of Whitmer’s executive order last week, Whitmer refused to yield — even as some Republicans said they might back a nearly identical order that revamped DEQ but restored the oversight panels.
“It is the best policy to clean up drinking water,” she said of her original order at the time.
In officially killing Whitmer’s plan through the Senate vote Thursday, lawmakers may force Whitmer to the negotiating table.
On Thursday, Tiffany Brown, Whitmer’s press secretary, said the governor was disappointed but “undeterred.”
“She is committed to reorganizing this department so we clean up our drinking water and protect public health,” Brown said. “We look forward to continuing a dialogue with the legislature to get this done, because Michiganders can't afford to wait for clean drinking water.”
Sen. Majority Leader Mike Shirkey has been among Republicans meeting with Whitmer over the past few weeks and as recently as Thursday morning. After Thursday’s vote, Shirkey said he welcomed another executive order from Whitmer — but one that would keep the oversight commissions intact.
Shirkey said any new order should also more clearly define “environmental justice.”
(Environmental justice is the idea that low-income and minority communities frequently face disproportionate burdens — health risks and lower quality of life — from pollution from power plants, factories and elsewhere than more affluent communities. Parts of Whitmer’s plan echoed recommendations from the Michigan Environmental Justice Work Group, which Republican Gov. Rick Snyder assembled following the Flint water crisis.)
Is there room for compromise?
Somewhat lost in the partisan showdown: Both Democrats and Republicans are unhappy with the status quo at DEQ and have pitched some form of citizens’ oversight panels as a way to fix the agency.
Often citing anecdotes from the Upper Peninsula, Republicans complain of DEQ bureaucrats steamrolling the “little guy” — by which they mean private property owners trying to build on or otherwise use their property without government interference. Oversight commissions would deter overreach, they say.
The GOP-created Environmental Rules Review Committee, created last year, has power to “oversee all rulemaking” of the DEQ. Half of the 12 seats on the panel are slotted for business representatives. Former Gov. Rick Snyder appointed all members last year.
If the commission and agency director stalemate on a regulation, Whitmer could act as a tiebreaker. But critics say the commission, at a minimum, could slow agency rulemaking and could even halt resolutions by taking disputes up and never acting — therefore never kicking a decision to Whitmer.
A separate Environmental Permit Review Commission resolves permitting disputes at the agency. Aggrieved parties trying to, for instance, alter floodplains, drill for oil, mine minerals — or do most anything requiring regulators’ permission — could seek relief. Many of that commission’s members have worked for people or entities seeking DEQ permits.
Democrats say they would support oversight panels but with less industry representation.
An “Air Pollution Control Commission” proposed last session by Sen. Stephanie Chang, D-Detroit, for instance, would have issued air quality permits, rules and accepted complaints. Chang’s bill never drew a hearing, nor did Democratic legislation to establish a similar commission for water.
Chang envisioned just two of her commission’s 11 members coming from industry, with the rest coming from local government, public health, environmental organizations and the general public.
Constituents in her industrial district complained to her that DEQ had pre-determined permit decisions — before seeking public input — after closed-door negotiations with corporations, she said.
Chang said there’s “probably a way to come to some sort of middle ground — where there is true citizen oversight.”
On Thursday, Bridge asked Shirkey if tweaking membership of the oversight panels offered a route to compromise with Whitmer.
“It would be very nice to have an opportunity to discuss that,” he said.
What about a legal battle?
Amid the political wrangling, Whitmer has questioned the legality of the GOP-backed oversight panels, and she asked Attorney General Dana Nessel, a fellow Democrat, to weigh in.
In her letter to Nessel last week, Whitmer wrote that the U.S. Environmental Protection Agency questioned whether the new panels were “so cumbersome and time-consuming” they would jeopardize federal requirements for timely rulemaking.
Republicans said they addressed those EPA’s concerns while still finalizing the legislation that created the panels.
On Thursday, Shirkey suggested Nessel would likely send Whitmer the answer she’s looking for — that the panels aren’t legal.
“You always find what you’re looking for,” he told reporters.
Asked if that answer could trigger a lawsuit, Shirkey replied: “Sounds like we’d have the opportunity to have a conversation.”
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