“No Stricter” Makes No Sense for Michigan’s Environment, Public Health

Of all the blows former Governor Rick Snyder and the lame-duck Legislature delivered in late 2018 to Michigan environmental policy, one stands out — a new law intended to thwart state rules that go beyond weak federal minimums. This seemingly abstract law in fact repudiates 50 years of efforts by state officials to act in defense of the people of Michigan and the Great Lakes.  It is an insult to the legacy of citizens and agencies who decided to act while Washington either couldn’t or wouldn’t, protecting us from toxic DDT, PCBs, CFCs, chlordane and more.

Here’s the heart of the “no stricter than federal” law, Public Act 602 of 2018 (originally House Bill 4205):

• If the federal government has mandated that Michigan promulgate rules, no Michigan state agency can adopt or promulgate a rule more stringent than the applicable federal standard unless the director of the agency determines that there is a clear and convincing need to do so or in the case of emergencies.  Emergency rules remain in effect no more than a year. 
• If the federal government has not mandated that Michigan promulgate rules, an agency cannot adopt or promulgate a rule more stringent than an applicable federal standard unless specifically authorized by a state law or unless the director of the agency determines that there is a clear and convincing need or in the case of emergencies.

Why does this matter?  Two environmental crises during the Snyder Administration demonstrate the impact.  After the poisoning of Flint’s drinking water, Snyder insisted that Michigan should set the nation’s most stringent standard for lead in drinking water.  By 2025, Michigan’s standard will be 12 parts per billion.  The federal standard is 15 parts per billion. 

His reasoning was in part based on the fact that experts agree there is no safe level of lead in drinking water and that Michigan should not settle for a federal minimum.  “As a state, we could no longer afford to wait on needed changes at the federal level, so Michigan has stepped up to give our residents a smarter, safer rule – one that better safeguards water systems in all communities,” Snyder said in a news release.

After the discovery of widespread PFAS contamination in waters across the state, the Snyder Department of Environmental Quality in January 2018 established a cleanup criterion for two compounds of 70 parts per trillion.  At the time — and this is still true — there was no federal cleanup criterion.  Other states have established significantly more stringent standards.

Public Act 602 does not apply retroactively, so it will not undermine the lead and PFAS rules.  But it is a vivid illustration of the need for Michigan to exercise its independent judgment of the kind of protection its citizens and environment needs — and of the inconsistency of former Governor Snyder, who vetoed a bill much like the new Public Act 602 in December 2011.  At the time, he said the “bill would inhibit the state’s ability to work with businesses and citizens to ensure that our regulatory structure fits Michigan’s unique profile.”

That rationale has not changed.  In fact, with the Trump Administration rolling back existing federal environmental rules and refusing to implement new ones, the need for state authority to act on behalf of Michigan’s “unique profile” is urgent.

The exception provided in the new law — when there is a “clear and convincing need” to go beyond federal standards — sets a very high bar.  Legal experts say that this language would leave stronger-than-federal rules vulnerable to legal attack by polluters and others who oppose Michigan taking leadership in environmental protection.

As FLOW Board Chair Skip Pruss says, the State of Michigan is steward of “a natural endowment existing nowhere else in the world and meriting special protections. Under this law, we are effectively prohibited from affording any future regulations that may be needed to safeguard this extraordinary freshwater legacy.”

There is some hope, as FLOW Founder Jim Olson has observed, that this legislatively imposed regulatory strait jacket will be found to violate Michigan’s 1963 Constitution, which mandates that the Legislature “shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” Public Act 602 does the opposite.

Fifty years ago this spring, Michigan became the first state to cancel most uses of the toxic pesticide DDT, acting out of an abundance of concern about the impact of consuming contaminated fish.  The state acted because it is surrounded by the world’s most magnificent fresh waters and because it was not willing to settle for a sluggish federal regulatory response.  Time has vindicated the state’s action in 1969.  The new law signed by Snyder is a betrayal of that legacy.