By Alyssa McMurtry
Staff Writer
Posted: June 12, 2023 9:52 AM

Two bodies that oversee the environmental rulemaking and permit application process were created out of years of frustration from the business community, but despite the backlash from environmentalists after they began work in 2018, they have not disrupted state actions in the way supporters hoped and critics feared.

After Governor Rick Snyder signed bills in 2018 creating the Environmental Rules Review Committee and the Environmental Permit Review Commission held their first meetings December 2018 and April 2019, respectively. The ERRC and the EPRC were not warmly welcomed by incoming Governor Gretchen Whitmer, with the governor attempting to abolish them in 2019 but being stopped by the then Republican Legislature.

Speaking with several stakeholders from environmental advocacy groups and business organizations, communication on the front end between the Department of Environment, Great Lakes and Energy is the number one priority. For businesses, there is a general consensus that the ERRC and EPRC have improved that communication between themselves and the Department of Environment, Great Lakes and Energy.

For environmentalists, the ERRC and EPRC are an extra layer to an already functioning system.

Regardless of which side of the conversation one is on, the ERRC and the EPRC seem to be nothing more than oversight boards as opposed to key driving forces.

Jeremy Orr was appointed by Whitmer as vice chair of the Environmental Rules Review Committee in 2019. The attorney with Earthjustice said in his personal opinion, the ERRC is not a necessity.

"The committee should not exist," Orr said in an interview.

Orr said the ERRC was a non-factor, mostly affecting the system by adding another layer of time and commitment. He also said it was a drain on resources that could go to EGLE.

"So not only is it simply a middleman, it's a middleman that holds up the rulemaking process unnecessarily, or can hold up the process unnecessarily," Orr said.

The rulemaking process at EGLE is a lengthy one, starting with EGLE staff conducting meetings with impacted stakeholders about potential rule changes. EGLE then submits a request for rulemaking to the Michigan Office of Administrative Hearings and Rules, and also submits to MOAHR and ERRC the draft rules and regulatory impact statement.

The ERRC conducts a review and vote. It can either allow the rulemaking to proceed without future ERRC oversight, allow the rulemaking to proceed with ERRC continued oversight or request EGLE make changes to the draft rules. After this vote, EGLE submits a public hearing notice to MOAHR, and the draft rules are available for public comment. EGLE reviews the comments, makes updates and sends a copy of the draft rules and an agency report to the ERRC.

The ERRC then reviews the rules and votes to either approve the draft rules as is, approve the draft rules with modifications or reject the draft rules. If rejected or accepted with modifications, ERRC submits a notice of objection to EGLE. If resolved, then the rules are sent to the Joint Committee on Administrative Rules. If unresolved, the governor must either agree with EGLE moving the process along or disagree with EGLE and ultimately have the rules withdrawn.

At the time the bill creating it was moving, one of the bill sponsors, the late Sen. Tom Casperson, said that the changes were necessary for "creating more balance and fairness" to the permitting process. Casperson was a staunch critic of what was then the DEQ when he led the passage of PA 267 of 2018, PA 268 of 2018 and PA 269 of 2018.

However, opponents of the bills such as Lisa Wozniak, executive director for the Michigan League of Conservation Voters, said at the time the legislation passed it would further weaken the state's ability to ensure families are not put at risk like they were during the Flint water crisis.

Brian Calley, lieutenant governor under Snyder and now president of the Small Business Association of Michigan, said in an interview those within the business community had been struggling with the permitting process, saying it would drag out for years.

"There really wasn't a strong engagement, strong way for the public, but particularly those investors who were looking to create opportunity in Michigan, a way for them to truly engage, to be heard, to identify issues and challenges and barriers and to have them truly heard," Calley said.

Caroline Liethen, director of environmental and regulatory policy with the Michigan Manufacturers Association, said she works "pretty extensively" with EGLE staff on the drafting of rules. She has never interacted with ERRC directly, and for the most part, would never need to.

"I've been working with the Air Quality Division on a number of rule sets that would have to do with ozone attainment of the Clean Air Act, and that has been pretty extensive," Liethen said. "And then on the flip side, there might be rules that are just already in existence and being tweaked and then they'll ask for us to ask our members how that might impact them and provide feedback."

During her time with MMA, Liethen said the earlier the communication starts with EGLE, the better the rulemaking process is for her stakeholders.

"We have been provided opportunities very early and often, and provide feedback," Liethen said, calling the process a "give and take."

"And of course, with that being said, they don't just take all of our feedback and copy and paste it in. I don't think anybody would ever expect that," Liethen said.

Conan Smith, president and CEO of the Michigan Environmental Council, said the EGLE review process in place was "great," and like Orr, he called the ERRC an unnecessary layer of government review.

"We have professional scientists, and we have a review process well established, active functional review process, that has put in place most of our environmental protection standards. Adding this layer of government literally did nothing other than delay a decision and the delay caused us to put more and more human lives at risk," Smith said.

Orr said the ERRC is made up of members who come from different areas of expertise. While this can be good, Orr said many of the members are often trying to make decisions about issues in which they do not have expert knowledge.

"We rely a lot on EGLE for the information to help us make informed decisions," Orr said. "They do an amazing job at that, but the reality is that they can do that amazing job without us being the middleman and holding up the process."

There was one particular instance Orr pointed to regarding PFAS regulation that was substantially held up. Those who held it up, he said, were those who would be directly impacted by the rules and held accountable for "cleaning up the messes that they made."

"In my own opinion, that's why Snyder and the Legislature created that committee," he said.

The Environmental Permit Review Commission is a different beast. Unlike the rules review panel, not all EPRC members are required to be present. Three experts in a specific subject discuss a permit application within their field. An applicant may submit a "petition for permit application review" to the EGLE director. The director then decides if the issue can be resolved with or without the panel. If not, the three-member panel submits a disclosure of interest form and the director provides the petition and any necessary documentation to the commission.

Within 45 days of the petition submittal, the panel hears from representatives of the petitioner and EGLE regarding their positions. Within 45 days of the meeting, the panel makes a final written recommendation to the EGLE director and the petitioner. After receiving the recommendation from the review panel, the EGLE director issues a decision in writing regarding the petition.

If the EGLE director accepts the recommendations or makes no decision, then the panel recommendations are incorporated. If the EGLE director rejects the recommendations, then the recommendations are not incorporated.

Sara Cambensy, executive director of the Michigan Chemistry Council, said in an interview that prior to the EPRC, her members said they had difficulty communicating with EGLE during the multi-year permitting process.

"For our members, I think they believe that the rulemaking process should be objective by the department, the language should be clear," Cambensy said. "I think before that this committee was put in place, there were a lot of questions on whether or not that was happening. I think there were some larger permits or permit approvals that were not granted."

Cambensy, who as a member of the House in 2018 voted no on the legislation, said that sometimes her members would undergo the long process to find out that, for example, one of their four permits was inadequate and would essentially prevent them from moving forward.

"It's not that the industry is coming to the table and saying, every single permit for a chemical manufacturer is going to be the same. They recognize that the characteristics of the land, soil, water, location, all of that is different," Cambensy said. "However, the variations and inconsistencies … the inflexibility of the department sometimes when there's various disagreement on a permit or something that permit is requesting to do in order to obtain that, there isn't more flexibility to kind of arrive at that end result."

Cambensy said there was a lot of learning that occurred between industry and the department, and that ultimately the perception of the ERRC and EPRC could be misconstrued.

"There might be a perception that industry is trying to get something from the state officials or get away with something or that the state officials may be doing a special favor for industry. I think that is a very, very rare case," Cambensy said.

Similar to Liethen, Cambensy said the meetings prior to the permitting process that bring the industry and the department together are beneficial.

"Everyone has an understanding going forward on why you're doing what you're doing," Cambensy said.

At its enactment, many in the business community wanted more involvement in the process for the good of Michigan's economy. Liethen said from her perspective, she is always concerned about whether her members have an opportunity to work collaboratively with the department in drafting the rules. Though she could not give a "universal answer" on if the ERRC or the EPRC help with the state becoming more competitive, she said she appreciated the opportunity to have professionals take a step back and review the rules.

"It's definitely useful to have eyes on it to the extent that perhaps there's variation in the process," Liethen said.

Orr said at public meetings, the board hears feedback from environmental groups, saying they would like to get rid of the committees altogether. Moving forward, Orr said he would like to see the committee dissolved and allow EGLE to do their job.

"However, if it will continue to exist, I'd like to see that we continue to appoint people who are pro-environment and pro public health, to continue with stakeholders that really understand to allow EGLE to do their job and do their job effectively without being held up or without some oversight from some kind of arbitrary committee of stakeholders," Orr said.

In December, Whitmer said her administration was examining whether to reissue similar orders abolishing the environmental permitting and rules committees that Republicans rejected in 2019.

Rep. Laurie Pohutsky (D-Livonia) chairs the House Natural Resources, Environment, Tourism and Outdoor Recreation Committee. Pohutsky said she was not personally working on a bill to dissolve the two bodies, but she said she believed there was someone currently working on a bill to address it.