Few love Michigan’s DEQ. But are oversight panels worth Whitmer-GOP showdown?

Feb. 15: What's next after Republicans kill Whitmer’s environmental shakeup?
Feb. 14: Michigan Republicans kill Gov. Gretchen Whitmer’s environmental overhaul plan

LANSING — A state senator rose to her feet, blasting what she called a “power grab” from the governor to abolish citizen panels that shaped environmental policy.

“There is something inherently wrong with the system which concentrates too much power at the top of an organization and reduces the public participation and oversight,” said the senator.

It’s a scene that could have happened last week, when Republicans moved to override an executive order from Democratic Gov. Gretchen Whitmer to reshape and rename the state’s Department of Environmental Quality because it also kills commissions the GOP created last year to give industry a greater voice in DEQ rules and permits.

In fact, the speech came in 1991, when state Sen. Lana Pollack led fellow Democrats in protesting Republican Gov. John Engler’s abolition of 18 legislatively created commissions and boards that managed air, water and other natural resources.

Nearly 28 years later, Michigan lawmakers are still battling over a governor’s power to shape environmental departments and regulations –  only now it’s Republicans crying foul over a Democrat nixing oversight panels.

The GOP-controlled Senate Oversight Committee on Wednesday is expected to continue debating whether to follow the lead of the House and override Whitmer’s executive order. If both chambers act by April 5, Whitmer’s reorganization will fail.

The drama comes as debate unfolds nationwide over the role of citizen oversight boards. Nationwide, 32 states had environmental policy boards as recently as 2013, according to a 2016 memorandum from the Michigan Legislative Service Bureau.

“However, that number is shrinking as these boards can be controversial,” the memo said, citing Minnesota’s 2015 elimination of a citizens board that “angered many” after requiring an animal feeding operation to complete an environmental impact statement.

Whitmer’s order would reorganize the DEQ into the Department of Environment, Great Lakes, and Energy — an agency that would prioritize threats to drinking water, climate change and environmental justice.

The reshuffling comes nearly five years after residents of Flint were exposed to high levels of toxic lead in their drinking water, a crisis largely attributed to failures in state government, including the DEQ.

Republican lawmakers crafted the oversight commissions last year, saying they would bolster transparency and rein what some contend are overzealous regulations from the DEQ.

The panels were backed by powerful groups such as the Michigan Chamber of Commerce and Michigan Farm Bureau as a way to give the public a chance to discuss rules and air grievances.

Among the citizen boards Whitmer would nix: the Environmental Rules Review Committee, which has power to “oversee all rulemaking” of the DEQ and has held one organizational meeting.

Half of the 12 seats on the panel are slotted for business representatives. Former Gov. Rick Snyder last year appointed all members last year, and another appointment for Whitmer doesn’t open until late 2020.

Democrats say the panels give industry representatives too much power and would slow the governor’s efforts to deliver on campaign promises to clean Michigan’s tainted water through a “Clean Water Public Advocate” office at the newly created environmental agency.

“These are one more layer that keeps us from actually cleaning up drinking water and having real accountability — and making sure decisions are made by scientists who are looking out for public health,” Whitmer told reporters last week.

Rep. Jim Lower, a Republican from Cedar Lake who sponsored the resolution to override Whitmer’s order, said abolishing the commissions overstepped “the will of the Legislature and certainly the will of the people of the State of Michigan.”

Protecting the ‘little guy,’ but who is that?

Somewhat lost the standoff: Both Democrats and Republicans are unhappy with the status quo at the DEQ and have pitched some form of citizens’ oversight panels as a way to fix the agency.

Former Sen. Tom Casperson, who sponsored the oversight panel legislation last year and now works for Sen. Ed McBroom, R-Vulcan, said his panels protect the “little guy” from being steamrolled by government when trying to build on or otherwise use their own public property.

Sen. Jeff Irwin, D-Ann Arbor, said Whitmer and other Democrats  are “looking out for a different set of little guys.”

“It’s children in Detroit that are getting asthma from breathing dirty air, it's people who are...having their cancer risk elevated by drinking dirty water,” he said.

Irwin said he favors citizens panels to watch over the state’s environmental agency — but ones created by the GOP are too business friendly.

Tyler Ernst, assistant general counsel of the Farm Bureau and a member of the newly created Environmental Rules Review Committee, said he’s frustrated with how both politicians from parties have described that commission.

The members are neither “salt of the earth...run-of-the-mill Joe Schmoes,” as some Republicans paint them, Ernst told Bridge, nor do they represent “the fox guarding the hen house or just the interest of industry,” as Democrats argue.

“Every member on that committee is an individual. Do we have a responsibility to the industries we represent to voice their concerns? Certainly we do,” Ernst added.

“But we as individuals also exist in this environment...Am I very concerned about the ongoing viability of our natural resources and our natural environment for not only myself but for [my daughter]? Absolutely.”

The panel consists of representatives from the Nature Conservancy and Michigan Environmental Council, General Motors, Waste Management, the Michigan Oil and Gas Association, and DTE Energy. Other members include a Calhoun County Public Health Department official, a Boyne City wastewater superintendent, representatives who work for a dry cleaning business, an international business law firm and a trust created to clean up former General Motors Corp. properties.

A separate Environmental Permit Review Commission resolves permitting disputes at the agency. Aggrieved parties trying to, for instance, alter floodplains, drill for oil, mine minerals — or do most anything requiring regulator’s permission — could seek relief. It does not require members to come from specific professions.

For the past two Legislative sessions under Snyder, Democrats filed legislation to create their own citizen oversight boards to oversee all decisions over air and water, but they never drew a hearing.

An “Air Pollution Control Commission” proposed last session by Sen. Stephanie Chang, D-Detroit (she previously served in the House), for instance, would issue permits and rules and accept complaints.

Just two of the commission’s 11 governor-appointed members would have represented industry, with the rest coming from local government, public health, environmental organizations and the general public.

Chang said she filed the legislation after constituents in her industrial district felt that DEQ had pre-determined permit decisions — before seeking public input — after closed-door negotiations with corporations.

“I really believe that there is probably a way to come to some sort of middle ground — where there is true citizen oversight,” Chang said.

That would include some voice from regulated corporations, but “in a way that’s balanced and takes into account public health and science and impact on local communities,” she added.

“It's clear that folks on both sides of the aisle want to see some type of check in place,” she said.

No ‘perfect system’

The new oversight panels are the first in Michigan since Engler eliminated them.

Pollack — who now sits on the International Joint Commission, a U.S-Canadian body that manages cross-border water issues — said she still sees values in the boards. The ones that Engler killed “were the public's voice, and there was an integrity about it,” she said.

But she’s not impressed with the new GOP-created commissions.

“It does not offer anything like the protection that was for public interests that were provided under the earlier generation,” she said.

But even then, environmental boards also drew plenty of controversy.

Bill Rustem, a long-time environmental policy adviser to Michigan governors since the 1970s, said it can be tough to find a sweet spot in creating such bodies.

Citizens commissions —  such as the now-defunct Water Resources Commission and Air Pollution Control Commission — occasionally morphed to fit a governor’s whims.  

The Water Resources Commission, for instance, refused to adopt former Gov. William Milliken’s plan to ban phosphorus in cleaning products to stop putrid-smelling and even toxic algae from killing fish in Lake Erie.

That prompted Milliken to transfer the commission in 1973 to Department of Natural Resources, where he could appoint the chairman and shape the rules.

“It’s how do you make something accommodating — that works and provides for the public input but doesn’t create an undo time lag in decision making,” Rustem said. “There’s not a perfect system.”