No Stricter Than Federal

On their way out of office in late 2018, former Governor Rick Snyder and the lame-duck Legislature delivered a body blow to Michigan’s environment by enacting a law intended to thwart state rules that go beyond weak federal minimums. This seemingly abstract law in fact repudiated 50 years of efforts by state officials to act in defense of the people of Michigan and the Great Lakes. It was 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.

The good news is that the current Legislature appears poised to repeal the “no stricter than federal” law.

Here’s the heart of the “no stricter than federal” law that passed in 2018:

  • 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. 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 there was no federal cleanup criterion.  Other states have established significantly more stringent standards.

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.

Fifty four years ago, Michigan became the first state to cancel most uses of the toxic pesticide DDT.

The state acted out of an abundance of concern about the impact of consuming contaminated fish.  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, Michigan acted.  Time has vindicated the state’s action in 1969. Snyder’s signature on the 2018 ‘no stricter than federal law’ was a betrayal of that legacy.

Federal environmental laws are meant to be a floor, not a ceiling for states. Happily, today’s Legislature and Governor agree on this.

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