Business and environmental groups were equally surprised at one of Rick Snyder’s final acts as Michigan governor: Signing a bill making it more difficult for state agencies to adopt rules stricter than federal regulations.
But while environmental groups say the move jeopardizes natural resources and public health, business advocates downplay the concerns.
“I think everyone was a little surprised he signed it,” said Jason Geer, director of energy and environmental policy with the Michigan Chamber of Commerce.
Sponsored by state Rep. Triston Cole, R-Mancelona, H.B. 4205 prohibits state agencies from adopting rules more stringent than federal law “unless the director of the agency determines that there is a clear and convincing need to exceed the applicable federal standard.” The law also exempts emergency situations and special education programs.
“It just requires that if a department wants to promulgate a rule more stringent than federal, they just need to explain it,” Geer said. “I don’t see this as a hindrance. It’s showing why we’re going beyond federal standards and justifying why we’re doing it.”
While more than a dozen states have similar laws that apply to environmental standards, Michigan’s applies across all state agencies.
Snyder vetoed similar legislation in 2011, saying at the time he was concerned it would “inhibit the state’s ability to work with businesses and citizens to ensure that our regulatory structure fits Michigan’s unique profile.” In a bill-signing statement last month, Snyder said his previous concerns were addressed and that state rules can still be stricter “when accompanied by the appropriate explanation and support.”
Geer wasn’t the only one surprised that Snyder backed the bill.
“I was shocked. It was the one bill I was almost certain he would veto,” said Dave Dempsey, senior adviser with For Love of Water, an environmental law advocacy group.
Cole has reportedly said the bill will not affect the state’s ability to address PFAS contamination and lead and copper rules following the Flint water crisis because there is no existing federal requirement on PFAS levels and because it does not apply retroactively.
Dempsey says the PFAS example shows stringent state standards are needed because — based on the bill language and Cole’s admission — Michigan could still have rules stronger than the federal government.
“If the circumstances had been different and there was a federal PFAS standard, then we’d very much be tied down to a multi-year rule-making process to go beyond federal law,” he said. “The exceptions prove the rule.”
Dempsey thinks the new law will apply specifically to toxic chemicals in the environment that are not sufficiently regulated by the federal government.
He added that he believes the law “defies the constitutional mandate” unique to Michigan requiring the Legislature to enact laws that protect air, water and natural resources — potentially the subject of a lawsuit or an attorney general opinion.
“Generally, I think it’s going to have a chilling effect on the ability of the state to even conceive of rules to protect public health in some instances. The burden of proof that goes beyond federal minimums is staggering. It’s a very heavy burden,” said Dempsey, who was the environmental adviser to former Gov. Jim Blanchard.
Joining a trend
Supporters of similar legislation in other states often argue that legislatures should control how rules are adopted, and that uniformity is needed among states for companies looking to do business there.
Mike Johnston, vice president of government affairs with the Michigan Manufacturers Association, worked closely on the bill and said allowing for an explanation was key to gaining Snyder’s support.
“The concept of the proposal is that regulations are expensive. Michigan competes with other states on the cost of doing business,” Johnston said. “This is about making Michigan competitive. It’s really important for Michigan’s business climate.”
Dempsey counters: “I think the smart and good companies in America go where they know environmental standards are best because that’s where a higher quality of life exists.”
Tim Anderson, publications manager for the Midwestern office of the Council of State Governments, said Michigan’s law is “not completely unusual.”
“There has been a trend over the past few years where we’ve seen legislatures contain what their agencies can do without legislative approval,” he said. “It’s fair to say legislatures have wide latitude on when they make a law, agencies have to abide by it.”
However, Dempsey is more concerned about what the bill means for Michigan’s tradition of environmental stewardship.
“What really hurts about this legislation is it tries to repeal a tradition of Michigan environmental leadership that’s been going on for 50 years,” he said.
MiBiz Deep Dive news coverage of PFAS is supported by Fishbeck Thompson Carr & Huber — a firm of engineers, scientists, architects, and constructors in the business of problem solving, inspiring results, and bringing ideas to life. Visit ftch.com for information.