Enviros testify in favor of eliminating ‘ineffective’ environmental review boards ⋆

Michigan House and Senate committee members took testimony from environmentalists and environmental regulators asking for support on legislation to abolish boards and committees that have stalled environmental rulemaking and permitting.

Members of the Senate Regulatory Affairs Committee heard testimony from state Sen. Rosemary Bayer (D-West Bloomfield) on her Senate Bills 393 and 394 aimed at eliminating the state’s Environmental Permit Review Commission (EPRC) and Environmental Science Advisory Board, which regulators and members say would streamline the permitting process. 

“As a member of the EPRC, I urge you to support Senate Bill 394 and abolish the EPRC for four reasons: the EPRC process delays the [permitting] application; it is not good governance; it is an expensive use of taxpayer funds; and it adds government redundancy, which contributes little to no value,” said Emily Cord-DuThinh, who has served on nine panels.

The EPRC hears two types of appeals: petitions for application review when a permit applicant has a dispute with the Michigan Department of Environment, Great Lakes and Energy (EGLE) while their permit application is pending, and reviewing the decisions of administrative law judges made on a permit. 

In the first type of appeal, the petitioners often appeal to the commission before providing complete information or allowing EGLE to respond to public comments. When the commission is asked to vote on incomplete applications the EPRC process causes a delay, Cord-DuThinh said. 

Emily Cord-DuThinh and state Sen. Rosemary Bayer (D-West Bloomfield) take a questions from Sen. Dan Lauwers (R-Brockway Twp.) at a meeting of the Senate Regulatory Affairs Committee. | Kyle Davidson

When a petitioner goes to the panel ahead of EGLE issuing a decision on an application, the department must stop processing a permit, said Travis Boeskool, EGLE’s deputy director. In almost all cases the panel determines EGLE is following the laws and regulations for the permitting decision. This takes an average of 109 days to resolve, Boeskool said. 

In the second type of appeal, EPRC members, who often have experience or knowledge of environmental matters, are sometimes asked to rule outside their areas of expertise. 

“I’m a geologist, yet one EPRC panel required that I second-guess a judge on a question of landownership. The EPRC empowers the panel to overrule an administrative law judge and staff attorneys on matters of law. This is not good governance,” Cord-DuThinh said.

The panels are also costly, with meetings typically including seven staff members from EGLE and the Michigan Office of Administrative Hearings and Roles including senior agency staff and attorneys, Cord-DuThinh said. It takes time for staff to compile up to 10,000 pages for the administrative record, which panel members then have a short amount of time to review. 

And while EGLE approves the majority of the permit applications it receives, in each panel where Cord-DuThinh has served, the panel sided with EGLE.

“The story of the permit review commission is best summed up as this: It’s ineffective and it doesn’t seem like it’s meeting the needs of anyone: the applicants, the department or the general public of Michigan,” Boeskool said.

Over in the House Natural Resources, Environment, Tourism and Outdoor Recreation Committee, Reps. Donavan McKinney (D-Detroit), Jenn Hill (D-Marquette) and Sharon MacDonell (D-Troy) testified Thursday on their House Bills 48244826 to eliminate the Environmental Rules Review Committee (ERRC) and sharing concerns at the committee’s ability to delay changes to environmental rules.

“Their stall tactics of using excessively long and cumbersome reviews is potentially bringing more harm to our environment and to Michiganders. The dissolution of the ERRC is the right move, putting people first and making good on the promise to improving Michigan’s environment,” McKinney said.

Department of Environment, Great Lakes and Energy Deputy Director Travis Boeskool, and Chief Deputy Director Aaron Keatley at the Senate Regulatory Affairs Committee on Oct. 19, 2023. | Kyle Davidson

In 2019, the panel came under fire after voting to halt stricter PFAS standards for drinking water.

Environmentalists have also blasted the panels, enacted by Republican former Gov. Rick Snyder in 2018, calling them “polluter panels” for allowing business interests a say over environmental regulations.

Six members of the 11-person board must represent the industries regulated by EGLE.

“These industry representatives are empowered to launch review periods that delay environmental protections from going into effect. That’s clearly bad policy, allowing the fox to guard the henhouse,” MacDonell said.

“The ERRC stands in the way of EGLE fulfilling its mission to protect our air, water, land and people all while wasting precious time and resources,” MacDonell said. 

While testifying before the House committee, Boeskool noted that EGLE is the only department subject to additional oversight boards. Prior to their creation, complaints were directed to the Joint Committee on Administrative Rules (JCAR), which oversees the rulemaking of all state agencies.

Even after rules are reviewed by the ERRC they sit before the joint committee for 15 session days, Boeskool said. 

Although the panel was created to allow stakeholder input and engagement in EGLE’s rulemaking, it has acted as a barrier to efficient government operation, Boeskool said. 

When creating a rule package, EGLE seeks out stakeholders with experience with the regulations and specialized knowledge on the potential effects and consequences. As a result it is difficult for the generalists appointed to the ERRC to generate new feedback that does not come up during stakeholder engagement or through the Joint Committee on Administrative Rules, Boeskool said.

Additionally, when reviewing regulations, rulesets that are “offramped” by the ERRC are usually implemented in four to five months less than those that are overseen by the Committee, Boeskool said.

EGLE also invests significant resources into operating the committee, including a dedicated team to support the ERRC and the EPRC. Doing away with the panel would allow EGLE to reinvest those resources and staff hours into engaging with stakeholders, Boeskool said. 

Emily Cord-DuThinh testifies at a meeting of the Senate Regulatory Affairs Committee. | Kyle Davidson

“If these bills pass and the ERRC is eliminated, there’s actually not a lot that changes in how our processes work,” Boeskool said. “We’re still working with stakeholders before and during the rule-drafting process. It’s still governed under the Administrative Procedures Act with requirements for public information, hearings, taking public comment, and then at the end of the process [the Joint Committee on Administrative Rules] is still there for that final chance if stakeholders have concerns.” 

Rep. David Prestin (R-Cedar River) expressed concerns that removing the ERRC would lead to constituents being steamrolled in the rulemaking process without a voice, Aaron Keatley, EGLE’s chief deputy director, said the board does not grant constituents a venue for input. 

Many of the policies that are delayed by the board are delayed due to concerns as to whether they are appropriate, rather than the nature of the rules and procedures themselves. Those issues belong in the legislature, Keatley said.

“We don’t define the statewide policy for environmental protections. You all empower us,” Keatley said.

“At the end of the day we are a body that implements administrative tasks in order to satisfy the statutory mandate,” Keatley said.

While the bills received written and verbal testimony from a variety of environmental organizations at each meeting, they were opposed by multiple business and industry organizations which did not testify at the meeting. 

Neither committee took votes on the legislation. 



authored by Kyle Davidson
First published at https%3A%2F%2Fmichiganadvance.com%2F2023%2F10%2F19%2Fenviros-testify-in-favor-of-eliminating-ineffective-environmental-review-boards%2F

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