Among the environmental legislation recently introduced by Michigan Democrats is a repeal of the state’s “no stricter than federal” law, passed at the end of Gov. Rick Snyder’s tenure during 2018’s lame-duck session.
The law prohibits state agencies from making rules stricter than federal standards unless they establish “that there was a clear and convincing need to exceed the Federal standard.”
In January, State Sen. Sean McCann introduced SB 14 to overturn the previous legislation, which Christy McGillivray, legislative and political director for the Sierra Club Michigan Chapter, said would return the state to a “more status quo” position for setting environmental rules.
She added that repealing the “no stricter than federal” law was an “easy thing we can do to make EGLE (Michigan’s Department of Environment Great Lakes and Energy) more effective.”
Nick Leonard, executive director of the Great Lakes Environmental Law Center, said the original law is mostly a “procedural hurdle” that has a chilling effect on state regulators.
“It’s something that they can point to as something that they’re worried about regarding their authority in rulemaking,” he said.
During Gov. Gretchen Whitmer’s first term, environmental advocates criticized EGLE for doing too little to protect communities. And residents filed complaints alleging that permits for the Ajax asphalt plant on the border of Flint and Stellantis’ expansion on the east side of Detroit violated Title VI of the 1964 Civil Rights Act.
Part of the issue was the agency’s ability to use administrative rules and set standards to protect communities. Former EGLE Director Liesl Clark said that with the Ajax permit, the agency lacked sufficient state and federal authority to block it.
Leonard says EGLE often referred to the “no stricter than the federal rule” and Republican control of the Joint Committee on Administrative Rulemaking as reasons they couldn’t take stronger action. But now, Democrats control the joint committee, and changing the “no stricter than federal” law could be another important step towards getting EGLE to stronger regulations for things like air quality.
Changes at the federal level could also make it more important for Michigan to be able to pass its own environmental protections quickly. For example, the U.S. Supreme Court is considering a case that could roll back parts of the Clean Water Act of 1972, which allow the Environmental Protection Agency to protect wetlands as part of its authority to regulate “navigable” waters.
However, Michigan is authorized by the EPA to regulate its own wetlands. So removing the “no stricter than federal” law could prevent the state from reconsidering its rules if the Supreme Court reverses federal protections.
McGillivray says passing SB 14 should be relatively easy for Democrats. However, getting EGLE to set more protective rules could take more work.
Leonard says that lawmakers could push the agency to block more permits and conduct stricter enforcement, but EGLE ultimately needs “internal reforms” to use its existing power.