After 18 years, Dems aim to restore Michigan pollution regulators' power

• A 2004 law prohibits state environmental regulators from writing new water quality rules
• As a result, regulators say their ability to protect the state’s lakes, rivers and groundwater is slowly fading away
• Lawmakers are considering a bill that would restore regulators’ rulemaking powers, a move cheered by environmentalists and jeered by business interests

Updating floodplain maps, deciding which chemicals need special storage, and adjusting water testing standards to keep up with new technologies were all once basic functions of Michigan's environmental agency. 

But a 2004 law has barred environmental regulators from performing those functions for nearly two decades — a barrier they say has hampered their ability to protect lakes, rivers and groundwater.

“We can’t even keep up to date when federal regulations are revised,” said Phil Argiroff, who oversees the water resources division within the Michigan Department of Environment, Great Lakes and Energy (EGLE). 

Lawmakers will soon decide whether to restore those powers to regulators like Argiroff.

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Amid a push by the state’s new Democratic legislative majority to reverse the policies of their Republican predecessors, lawmakers are considering whether to repeal the law that forbids EGLE from writing almost any rules under Part 31, the section of Michigan’s environmental law that pertains to water quality. 

Republicans and business interests sought the 2004 law, which was signed by Democratic then-Gov. Jennifer Granholm, because they felt state regulators had become too aggressive in their efforts to rein in pollution, asserting powers that should belong with lawmakers.

But environmentalists and Democrats have long argued that the rulemaking ban benefits polluters while harming the public. They fear EGLE’s inability to update regulations may eventually snowball into a water pollution crisis.

The role of rulemaking

At issue in the debate is how regulations are written. Typically, legislators craft laws that set out basic guidelines for how society should function. State agencies then tackle the specifics, writing regulations and enforcing them.  

For example, lawmakers in 1994 passed Michigan’s Natural Resources and Environmental Protection Act, which directs regulators to “protect and conserve the water resources of the state.” Government agency staff have written regulations to enforce that law, such as setting limits on dangerous chemicals.

But conservative lawmakers and regulated industries frequently accuse administrative agencies of abusing their power by writing more stringent regulations than the law allows. 

They scored a victory in 2004, when Granholm signed a bill that revoked the state’s ability to update most water quality rules after 2006. The bill was part of a deal with Republicans to balance the environment department’s budget.

Twenty years later, Rep. Emily Dievendorf, D-Lansing, is sponsoring legislation to return those powers to the EGLE. 

During a hearing Thursday on House Bill 5205, Dievendorf said EGLE’s inability to write new rules has left Michigan’s pollution control system “stuck in the past while the rest of the country is moving forward.”

“That’s not just stupid,” Dievendorf said. “It’s dangerous.”

Republicans, who make up half of the House, are sure to uniformly oppose the bill, said David Martin, R-Davison, the minority vice-chair of the House environment committee.

Allowing EGLE to write water quality regulations would give too much power to unelected bureaucrats, Martin said. He believes that power should rest with lawmakers, who he sees as more accountable to the public and more sensitive to how new regulations could impact people and businesses. 

“There’s a reason we have a Legislature,” Martin said. ”...It's transparency, public information, open meetings — and it just goes away with bureaucrats.”

The debate fits into a national struggle over whether the task of interpreting broadly-written health, environmental and corporate laws is best left to agency staff, who are experts in their field, or lawmakers, who are elected by the public.

In a case argued before the U.S. Supreme Court on Wednesday, justices are considering whether to reverse a decades-old doctrine that allows federal agencies to interpret the meaning of opaque laws when writing regulations.

And Michigan’s Supreme Court is separately considering a case that could determine how much state regulators can ramp up farm pollution regulations before they must get lawmakers’ approval.

‘Backsliding’ divides business interests

State regulators and environmentalists say there are real-life risks to EGLE’s inability to update outdated rules. 

For example, EGLE officials would like to update E. coli testing regulations, which still instruct health departments to use outdated methods that are slow to detect an outbreak. But they lack the power to do so.

They also lack the power to add PFAS to the agency’s list of polluting materials that are subject to special safety precautions. As a result, businesses that store the carcinogenic “forever chemicals” are exempt from standards that apply to less-dangerous substances, like road salt.

“Backsliding is a really good way to put it,” said Megan Tinsley, water policy director for the Michigan Environmental Council. “We’re not protecting public health to the best of our ability, because the state can’t go back and say ‘this chemical is problematic.’”

Long-term, Argiroff said, Michigan also risks losing its authority to administer the Clean Water Act, a federal law that states are allowed to enforce if their regulations are at least as stringent as the federal government’s. 

After decades of failing to keep up with federal updates, Argiroff said Michigan is out of compliance. If it lost the right to administer the Clean Water Act, federal regulators in Chicago would take charge — something Michigan’s manufacturing community doesn’t want. 

Citing such concerns, some industry groups that supported the 2004 rulemaking ban are not fighting the effort to repeal it. 

“We don’t want to put any of those programs at risk,” said Caroline Liethen, director of environmental & regulatory policy for the Michigan Manufacturers Association. 

The manufacturers and the Michigan Chamber of Commerce have both declined to take a position on the bill. But it still has plenty of industry opposition. Groups representing drain commissioners, realtors, farmers and small businesses have come out against it, saying their costs will rise if regulators are allowed to write more stringent rules.

Bill opponents argue that if EGLE feels its regulations are weak or outdated, it should ask lawmakers to update them.

EGLE officials have tried that repeatedly, Argiroff said, to no avail. Lawmakers have limited time to consider thousands of bills each session, and EGLE’s proposed rule changes have been among the vast majority that don’t pass.