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Gretchen Whitmer remakes Michigan DEQ again, but leaves oversight panels intact

Editor's Note: This story was updated February 21 to include new comments from Senate Majority Leader Mike Shirkey. 

LANSING — Michigan Gov. Gretchen Whitmer is trying again to reshuffle the state’s environmental department to move quicker to respond to water contamination and climate change.

The Democrat on Wednesday issued an amended executive order to transform the Department of Environmental Quality (DEQ) into the Department of Environment, Great Lakes, and Energy (EGLE).

It comes a week after Republican lawmakers, in a rare move, killed an earlier executive order from Whitmer that would have abolished a pair of business-friendly panels they created last year to oversee the DEQ. 

Whitmer’s latest order, effective April 22, is nearly identical to the original, but leaves intact the two oversight panels — the Environmental Rules Review Committee and the Environmental Permit Review Commission.

A statement from Whitmer’s office said the panels would remain pending a legal review from Attorney General Dana Nessel, a fellow Democrat. Whitmer requested the review earlier this month after Republicans first voiced outrage about her effort to eliminate them.

“Every Michigander deserves safe, clean drinking water, and I’m not going to let partisan politics slow down the important work that needs to get done right now to protect public health,” Whitmer said in a statement.

“That’s why I’m taking action to sign this new executive order so we can start cleaning up our drinking water, protect the Great Lakes, and take action to address climate change.”

On Thursday, Republican Senate leaders said they would not hold hearings to scrutinze the new order, meaning it would stand. 

“The Governor has presented a revised plan for the Department that takes into account many of the concerns expressed by our caucus and I appreciate her willingness to extend this act of bipartisanship,” Senate Majority Leader Mike Shirkey said in a statement. “The newly issued executive order preserves the ability for citizens to defend their rights against the overreach of bureaucracy and provides our caucus opportunity for policy development.”

Rep. James Lower, a Republican who sponsored the resolution to reject Whitmer’s first order, applauded her latest effort on Wednesday. 

“I’m glad Gov. Whitmer finally realized she needed to come to the table and work with us on this issue,” he said in a statement.

“Now that all parties are at the table, including those affected by environmental regulations, I’m confident we can find a lot of common ground.”

Under the state constitution, the Legislature can reject an executive order if a majority in both chambers vote to “disapprove” within 60 days. That’s what Republicans did the first time.

Whitmer announced the new order via an emailed press release, in contrast to the public signing ceremony that marked her first order on Feb. 4.

Whitmer’s planned shakeup comes nearly five years after residents of Flint were exposed to high levels of toxic lead in their drinking water, a crisis largely attributed to failures in state government, including at the DEQ.

The order doesn’t add new funding for an environmental agency that has cut 25 percent of its employees since 2002.

Whitmer, who campaigned on a pledge to prioritize water, contends the reorganization will help the agency respond more quickly to environmental threats.

The order would create  a “Clean Water Public Advocate,” “Environmental Justice Public Advocate” within the new agency, and an “Office of Climate and Energy.”

The public advocates would accept, investigate and analyze complaints related to drinking water and environmental justice problems, and work within state government to address them.

The order would also create 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.

But Republicans will hold on to the commissions they created to watchdog the environmental agency, which Democrats have dubbed “polluter panels” and Whitmer called needless bureaucracy that would slow Michigan’s response to environmental threats.

Republicans counter that the commissions — backed by groups such as the Michigan Chamber of Commerce — bolster transparency and check the power of the environmental agency, which some contend is overzealous.

Lawmakers created the boards last year, months before a frantic lame duck session in which they passed legislation making it tougher to craft state regulations stricter than those of the federal government and weakening standards for cleaning up toxic sites across Michigan.

Among the citizen boards Whitmer will no longer nix: the Environmental Rules Review Committee, which has power to “oversee all rulemaking” of the DEQ and has held one organizational meeting.

Half of the 12 seats on the panel are slotted for business representatives. Former Gov. Rick Snyder appointed all members last year; another appointment for Whitmer doesn’t open until late 2020.

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 regulator’s permission — could seek relief.

Feb. 27, 2019: Seven things to know about Gov. Gretchen Whitmer’s debt-free college plan
Jan. 22, 2019: Whitmer administration changing tone around Michigan marijuana regulation

The permit commission does not require members to come from specific professions, but Democrats object to its makeup, since it’s almost entirely composed of engineers and consultants who contract with people and companies seeking environmental permits.

Environmental advocates offered support for Whitmer’s revision on Wednesday while chiding Republicans for forcing her hand.

"We applaud Gov. Whitmer for demonstrating her continued commitment to the health of Michiganders by putting safe, affordable drinking water and public health at the forefront of her agenda," Lisa Wozniak, executive director at the Michigan League of Conservation Voters, said in a statement. "We urge the state Legislature to support this common-sense reorganization that puts public health first and not quibble over unnecessary layers of bureaucracy that will only delay, block or slow down real contamination clean up efforts."

In his statement, Lower blamed Whitmer for the dispute.

“The original executive order went too far,” he said. We made our concerns clear and Gov. Whitmer initially was unwilling to work with us to correct her mistake.”

One item Shirkey and other Republicans called for but did not get in the new order: A more detailed definition of “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 Snyder assembled following the Flint water crisis.

Confusing some folks around the Capitol on Wednesday afternoon: The advocacy group Clean Water Action announced the latest executive action before Whitmer did.

Sen. Ed McBroom, a Republican who chairs the Senate Oversight Committee, said Wednesday he found that “problematic.”

“Certainly begs some questions about separation between executive branch departments and any interest group,” he told Bridge.

McBroom said he welcomed Whitmer's revisions, but he questioned whether they would do much to fix Michigan's most pressing environmental problems. 

"We're still going to need to work very hard as a Legislature and in the governor's office to attack these problems together." 

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