Quiet settles over environmental debate at Capitol

Gov. Rick Snyder and the Legislature have gone big on many issues so far this year -- taxes, public employee benefits and education, to name a few -- but one area that has drawn less attention has been their work on bills affecting the environment. That’s about to change.

So far, the push for changes to state environmental regulations has come from the Legislature, not Snyder. The major proposal is to bar state departments from issuing rules stricter than federal regulations on any given topic. But that legislation has been temporarily shelved as a workgroup assembled by Snyder reviews thousands of environmental rules issued by the Department of Environmental Quality to manage environmental policy in the state.

Some of what has moved through the Legislature -- limiting the power of townships to regulate mining operations and allowing the harvesting of submerged logs from inland lakes -- has not pleased environmentalists, but overall there has been no epic showdown, a sharp contrast to the year-long drama between business and labor on so many issues this year.

“So far, it hasn’t been terrible,” said James Clift, policy director for the Michigan Environmental Council. “We’re concerned at what might still happen in the future.”

Indeed, besides what the Snyder administration may propose, majority Republicans in the House will eventually recommend bills codifying several state regulations on hydraulic fracturing, often called "fracking," the process of using a fluid to create a crack in bedrock as a way to extract natural gas.

Part of the surprise at the lack of immediate action comes from how reviled the DEQ has been among Republicans, who have accused it of excessively and unfairly regulating businesses for years, something they say has discouraged economic growth. But so far, DEQ Director Dan Wyant has managed to please Republicans with changes he is making to department operations without, at least not yet, upsetting environmentalists.

“You’ll notice we haven’t done a whole lot, coming out swinging,” said Sen. Tom Casperson, R-Escanaba, chairman of the Senate Natural Resources, Environment and Great Lakes Committee, as well as a longtime DEQ critic. “We’ve got to give Dan some room here.”

Perhaps the biggest surprise of all is how the Legislature has put on hold bills that would have barred state departments from issuing rules any stricter than federal regulations. In March, majority Republicans in the Senate announced at a news conference plans to pursue the legislation, which they passed in May. The House passed similar legislation in June.

Under those bills, the state could only regulate something more strongly than the federal government if the Legislature passed a bill allowing it (this move would affect all state rules, not just those on the environment). Now a variety of factors -- the Snyder administration’s rules review and some second thoughts about the absolute nature of the legislation -- have brought it to a halt with no action in months.

“I think there’s a little bit of wisdom here in slowing down and looking at what all the rules are … just to be sure. One size maybe doesn’t fit all,” Casperson said. “At the end of the day, it won’t fit maybe every single rule.”

Clift said he expects the Snyder administration to prefer retaining some flexibility to regulate more if needed. He noted one hole in the concept is what happens when the federal government lacks any regulation in a particular area.

(Veteran regulator prefers to say 'yes')

Andy Such, director of environmental and regulatory policy for the Michigan Manufacturers Association, said it makes sense to let the rules review occur. Such sits on the committee reviewing DEQ rules, a process that involves combing through 2,600 sets of rules and 8,000 sets of so-called guidance documents from the department that govern how it puts rules and statutes into effect.

The manufacturers association supports the legislation to restrict the state from issuing regulations tougher than the federal government, but it’s not as simple as it may seem, Such said.

“The way it’s done is going to be extremely important,” he said.

The legislation would require the DEQ to issue a permit if it failed to make a permitting decision within a specified period of time. Such said that could cause problems.

“We want certainty and clarity on these things. We also want a permit that we can defend in court,” he said. “If somebody feels you got your permit without justifying it, without going through the process, they can take you to court.”

Both Clift and Such described a learning curve for the many new legislators this term.

“It’s been a mixed bag,” Such said. “Some of the legislation I’ve been told by my legislative friends that’s it’s going to help me, I couldn’t figure out exactly how. But I do think it’s getting better. I think legislators are beginning to realize this is not as simple and straightforward as putting in a bill and getting people to vote on it.”

But there have been a handful of issues where the Legislature has not waited on the Snyder administration, one of which Snyder has signed into law and curbs townships in regulating gravel mining.

Some 20-30 jobs were on the line because a township board had made it nearly impossible for a mine near Houghton to operate, said Rep. Frank Foster, R-Pellston, chairman of the House Natural Resources, Tourism and Outdoor Recreation Committee.

While the Snyder administration is systematically going through regulations, Foster said his committee would not wait and would move on issues as needed.

“It’s just about going through a lot of these different regulations and seeing what the standard is and what we can do to cut down costs for business,” he said.

Enabling the harvesting of submerged logs in inland lakes represented a compromise from the original bill to allow harvesting them from rivers too, Foster said. Submerged logs are logs cut from old growth forests in the 19^th century that sank to the bottom of lakes and have enhanced value.

Clift said the revised submerged log bill was a substantial improvement over the original.

But he called the gravel mining bill unfortunate, saying its standard that a local government could only prohibit mining through its zoning process if doing so represented a very serious environmental threat would provoke litigation.

“This law says we’re going to let every single one of those landowners drag you into court,” he said, saying local governments would have to spend more on legal costs. “It provides some uncertainty. I think (it) undermines local zoning and planning.”

Another proposal that looks likely to become law would cap the amount of land the Department of Natural Resources could own at 4.65 million acres. That would give the department a 17,000-acre cushion between what it now owns and could own. However, negotiations with the DNR likely mean there will be exemptions put in the bill so that the DNR could exceed the cap if the land purchased was for specific public use such as trails.

The bills would impinge on the ability of the DNR to buy land that it would simply close off to the public for preservation purposes. The main drive to prevent such acquisitions comes from wanting to help local governments ward off the loss of tax base as a result, Casperson said.

Still, the legacy of this Legislature and Snyder will take shape in 2012 once the Snyder administration puts forth its recommendations.

“We came in with a real spit and vinegar to take this stuff on,” Casperson said. “I think what you’re seeing here is folks saying, ‘Hold on, let’s just be sure’.”

Editor's note: This story was produced in a collaboration between Bridge Magazine and the Gongwer News Service.