Republicans reject Whitmer environmental order in rare move

Jonathan Oosting
The Detroit News
Gov. Gretchen Whitmer delivers her State of the State speech. Senate Majority Leader Mike Shirkey listens at left.

Lansing —  Michigan's Republican-led Senate flexed its political muscle Thursday and voted to overturn Democratic Gov. Gretchen Whitmer's executive order overhauling the state environmental department, finalizing the first rejection of its kind since 1977. 

Senate Majority Leader Mike Shirkey said Whitmer’s order went “a step too far” by eliminating business-friendly panels the Legislature created last year to oversee environmental rules and permit applications.

The Clarklake Republican invited Whitmer to draft another executive order to reorganize the environmental department, which she is expected to do, but recommended the governor clarify what a GOP-controlled Senate panel called the “undefined conceptual idea of environmental justice" in the rejected version.

Democrats accused Republicans of interfering with Whitmer’s efforts to focus environmental efforts around clean water following the Flint water crisis and the discovery of PFAS “forever chemicals” in communities across the state.

"They just voted to allow polluters a free pass and the citizens of Michigan took it on the chin," said Senate Minority Leader Jim Ananich, D-Flint. 

The Michigan Constitution gives the governor authority to reorganize state government, but it also gives the Legislature 60 days to reverse any executive order by majority vote. The House last week adopted a resolution to overturn the order, which the Senate completed Thursday in a 22-16 party-line vote.

“It is the position of this Legislature that (the environmental rules and permit review panels) created by legislation ought not to be abolished by executive decree,” the resolution reads.

The rare rejection came amid the first partisan power struggle between Whitmer and the Legislature following weeks of bipartisan platitudes at the onset of a new era of divided government. Democrats won election to stop statewide seats in November, but the GOP retained control of the state House and Senate.

Whitmer could have withdrawn her order to avoid rejection, as past governors have done, but instead forced Republicans to vote it down. She is expected to sign a new version soon. 

"It's disappointing to see the party of limited government vote for more government bureaucracy, but the governor remains undeterred," said spokeswoman Tiffany Brown. "She is committed to reorganizing this department so we can clean up our drinking water and protect public health."

Policing 'overzealous bureaucrats'

While Whitmer has argued the review panels will hurt the state's ability to respond to environmental crisis, Shirkey said Republicans who created the panels want to "protect Michiganders from overzealous bureaucrats” within the environmental department.

The governor last week asked Democratic Attorney General Dana Nessel for an official legal opinion on whether the rule and permit review panels conflict with requirements of the federal Clean Air and Clean Water acts. They appear to be operating on “thin legal ice,” Whitmer said at the time.

The panels include officials from industries like oil and gas, business advocacy and environmental groups. They have the authority to delay environmental rules that could burden businesses or overturn state permit application decisions.

Republicans argue the panels will help average citizens or community groups denied permits by overzealous environmental regulators. They are “important for the protections of transparency, accountability and giving citizens access for redress," Shirkey said.

But Democrats and environmental groups contend the panels will give regulated industries and paid consultants a new avenue to block rules or permits that could hurt their bottom line.

“I think the sticking point is that my conservative colleagues want the polluters to have a veto over rules and permits,” said Sen. Jeff Irwin, D-Ann Arbor, who voted against the resolution in committee.

Whitmer has said she wants businesses to have a voice in stakeholder discussions, just like other residents, but Republicans “want the polluters to ultimately be able to control the rules and permits,” Irwin said.

The review panels have not yet had the chance to get off the ground, and it’s not yet clear if they could “make the department better, if they help the department not make mistakes like we saw with Flint,” said Senate Oversight Committee Chairman Ed McBroom, R-Vulcan. “Let’s let these laws have a chance to work.”

Republicans also noted the term “environmental justice” is not defined in Whitmer’s environmental order, which would create an inter-agency environmental justice response team to advise state departments and agencies. It would also create a new environmental justice advocate position to field citizen complaints.

“If it’s not in law, it is extremely subjective,” said Sen. Lana Theis, R-Brighton. “A subjective interpretation means that it completely depends on who is at the helm as to who that’s going to be meted out moving forward."

In a letter to Shirkey detailing findings of his oversight committee, McBroom said Whitmer’s order would create new mandates to “aggressively advance the undefined conceptual idea” of environmental justice.

“It is inherently antithetical to republican government and its democratic processes to allow an agency with police powers to function under such a broad mandate with no statutorily defined parameters,” he wrote.

"Polluters panels"

Former Gov. Rick Snyder, a Republican, used an executive directive to create an environmental justice work group in response to the Flint water contamination crisis. Unlike orders, the Legislature does not have the authority to review directives.

Irwin defended Whitmer’s focus on environmental justice, saying it is “about standing up for the little guy.”

“Environmental injustice is the process whereby people without the financial resources, people without political power and connections, are the ones who are on the losing ends of these pollution permitting decisions on such a regular basis that we have our largest community in the  state, the city of Detroit, with a huge childhood asthma problem.”

Whitmer chastised House Republicans after last week’s vote, arguing they “voted against clean drinking water.” Scientists should make environmental decisions, not corporations, she said on a weekend radio show, suggesting GOP lawmakers were “taking their marching orders” from the Michigan Chamber of Commerce.

Her comments rankled Republicans, who wrote language into the resolution stating that the Legislature “remains committed to and joins the governor in ensuring the health and safety of Michigan’s citizens and families with an environment that is clean, energy needs that are met, and drinking water that is safe.”

The panels were created in response to concerns from local citizens and communities, McBroom said.

The Senate panel heard testimony on “permits that were denied for a community to have a fishing tournament that they’ve been having for 27 years, permits that are being denied to farmers who’ve been plowing a field for years,” he said.

In his letter to Shirkey, McBroom said abolishing the oversight committees would be a “objectional step backward, especially for property owners, farmers and businesses large and small who have experienced an unclear and often unreasonable permitting or regulatory process, sometimes with a predetermined outcome.”

But Democrats argued Republicans were defending "polluter panels" that give regulated industries an out-sized voice in development of rules they must abide by. Whitmer's order would have cut out bureaucracy to help the state more quickly respond to environmental crises, said Sen. Mallory McMorrow, D-Royal Oak. 

"We have a trust issue in Michigan," McMorrow said, referring to state government. Members of the public and business community "want us to be more nimble, more responsive and more transparent about our processes... not create extra layers of government, not create bloated government."

Shirkey noted that in 2002, then-Rep. Whitmer co-sponsored a measure that would have created a 7-member commission to oversee the department. 

“Like our caucus, the governor saw the value in creating oversight of bureaucracy, especially when decisions made by that bureaucracy have a lasting impact on the lives and property of many Michiganders,” he said.

Whitmer did not mention the dispute in Tuesday night’s State of the State address, but she did tout her reorganization plan as a way to “bring sharper focus to addressing Michigan’s water safety and environmental challenges.”

The executive order created the new Michigan Department of Environment, Great Lakes and Energy. The “streamlined” department would focus on clean drinking water, safeguarding the Great Lakes and actions to “protect our state from the harmful effects of climate change,” Whitmer said.