Tag: No Stricter Than Federal

Gov. Whitmer signs “No Stricter Than Federal” roll-back: Why it matters

Published on July 31st, 2023 by - Blog Posts, News

Michigan is once again free to enact environmental protections critical to the health of our environment and residents.

Updated July 31, 2023

On July 27, 2023, Governor Gretchen Whitmer signed Senate Bill 14, which passed the State House of Representatives on June 28 by a 56-52 vote. With her signature, the 2018 state statute that barred the state from adopting environmental standards stronger than those in federal law is now undone.

For more than five decades, Michigan has been a leader among the states in shutting down toxic chemicals, protecting sensitive habitats, and safeguarding children’s environmental health. The 2018 “no stricter than federal” law is inconsistent with Michigan’s 1969 ban on DDT, 1977 phosphorus detergent standard, and 1980 wetlands protection act.

The 2018 law was enacted during the last hours of that year’s lame-duck legislative session and the last days of Governor Rick Snyder’s administration, giving the public no chance to weigh in with comments on the bill.

Ironically, if the law had passed earlier in the session, it would have prevented one of Snyder’s own initiatives. After mishandling the contamination of the Flint water supply due to lead pipes, the former Governor supported a new, strict state action level of 12 parts per billion of lead, compared to the-then federal standard of 15 parts per billion, and boasted that it was the toughest in the nation.

Had the law remained in effect, it could also have prevented the state from setting stricter-than-federal drinking water standards for seven toxic chemicals from the PFAS class. Exposure to the so-called “forever “chemicals has been linked to numerous human health effects. Governor Whitmer directed EGLE to promulgate PFAS drinking water standards in 2019. The agency did so, but PFAS manufacturers sued to stop them from taking effect. Meanwhile, U.S. EPA has proposed PFAS drinking water standards that are in some cases less strict than the Michigan standards.

The sponsor of Senate Bill 14, State Senator Sean McCann of Kalamazoo, said “federal standards across the board are usually set to the lowest common denominator. Michigan, because of its unique place nestled in the heart of the Great Lakes, needs the authority to set higher standards for the protection of our natural resources, especially water.”

Congress passed federal environmental laws in the 1960s and 970s to set a national floor of protection below which no state law could fall, while leaving room for individual states to go farther in protecting their environment. But, says FLOW executive director Liz Kirkwood, the 2018 law made the national floor the state’s ceiling.

“Michigan must be free to protect our rivers and air, wetlands and drinking water, to meet Michigan’s needs,” she said.

Read our previous analysis of “no stricter than federal” >>

 

No Stricter Than Federal

Published on May 22nd, 2023 by - Blog Posts, News

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.