Q & A: The Michigan Environmental Rules Review Committee

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Published in Michigan Environmental Law Journal, Summer 2019, Vol. 37, No. 1, Issue 106 [view full issue].
Cite: 37 Mich Env Law J 1 (2019)

by Jeremy Orr, Attorney, Safe Water Initiative, Natural Resources Defense Council

On April 5, 2019, Governor Gretchen Whitmer appointed me to serve on the state’s controversial Environmental Rules Review Committee (the ERRC).[1] My appointment, which satisfies the statutory mandate that the ERRC have a representative from an environmental organization,[2] came just two months after the state legislature overturned Governor Whitmer’s Executive Order,[3] which attempted to abolish both the ERRC and the similarly situated Environmental Permit Review Commission (the EPRC).[4] The creation, attempted abolishment, and preservation of the ERRC and the EPRC, which environmentalists and public health advocates nicknamed “Polluter Panels,” were quite contentious due to the placement of representatives from the exact industries that are meant to be regulated on both decision-making bodies. For some people, myself included, this was and still is a classic case of the fox guarding the henhouse.[5] So why would I join a committee whose very existence I question? Simple: Because environmental advocates still need a voice at the table. But what exactly is this table and how does it function?

In this following Q & A I hope to provide some brief yet essential insight into the ERRC and how it plays a key role in shaping environmental law and policy in our state through the formal rule-making process.

What is the Environmental Rules Review Committee?

The Environmental Rules Review Committee is “an independent body within the Office of Performance and Transformation [that] oversee[s] all rule-making of the Michigan Department of [Environment, Great Lakes, Energy]” (formerly the Michigan Department of Environmental Quality).[6]

How long has the ERRC been in existence?

Public Act 267 of 2018 was signed into law on June 29, 2018 by Governor Snyder and ordered to take immediate effect.[7]

Where is the law codified with the Michigan Complied Laws?

The ERRC as created under the aforementioned Public Act is codified in Michigan law as sections titled “Environmental rules review committee; creation; members and meetings”[8] and “Review by environmental rules review committee; procedure; approval or rejection of draft proposed rules”[9] within Chapter 3 “Procedures for Processing and Publishing Rules” under the Michigan Administrative Procedures Act of 1969.

Who are the individuals that make up the ERRC?

As detailed on the State of Michigan’s website, “the Committee is comprised of 12 members appointed by the Governor and four nonvoting ex-officio members. Not more than six of the voting members may be members of the same political party. Appointed members serve four-year terms.”[10] Yet to be more specific, the law states that

the environmental rules review committee consists of the director of the department of environmental quality, or his or her designee, the director of the department of health and human services, or his or her designee, the director of the department of agriculture and rural development, or his or her designee, and the director of the department of natural resources, or his or her designee, all of whom serve as nonvoting members, and the following voting members appointed by the governor by and with the advice and consent of the senate:

(a) One individual who represents the solid waste management industry.
(b) One individual who represents a statewide manufacturing organization.
(c) One individual who represents a statewide organization that represents small businesses.
(d) One individual who represents public utilities that engage in the generation, transmission, or distribution of electricity.
(e) One individual who represents a statewide environmental organization.
(f) One individual who represents the oil and gas industry.
(g) One individual who represents a statewide agricultural organization.
(h) One individual who represents local governments.
(i) One individual who represents a statewide land conservancy organization.
(j) Two individuals who represent the general public.
(k) One individual who is a public health professional.[11]

How long are terms for ERRC members?

Terms are four years and each member can serve a maximum of three consecutive terms but can be appointed again after not serving for one full term.[12]

What are the requirements to serve on the ERRC?

While members are appointed by the Governor at the advice and consent of the State Senate, the law simply states that members must merely “possess knowledge, experience, or education that qualifies him or her to represent the represented constituency.”[13]

Can an individual be barred from serving on the ERRC?

While the criteria for serving on the ERRC are fairly subjective, there are people who are excluded from serving on the committee. The following individuals cannot serve on the ERRC as voting members:

(a) The individual is an employee of any office, department, or agency of this state.
(b) The individual is a party to 1 or more contracts with the department of environmental quality and the compensation paid under those contracts in any of the preceding 3 years represented more than 5% of the individual's annual gross income in that preceding year.
(c) The individual is employed by a person that is a party to 1 or more contracts with the department of environmental quality and the compensation paid to the individual's employer under those contracts in any of the preceding 3 years represented more than 5% of the employer's annual gross revenue in that preceding year.
(d) The individual was employed by the department of environmental quality within the preceding 3 years.[14]

What role does the ERRC play in the rule-making process?

As a body that was intentionally set up to be independent of the Michigan Department of Environment, Great Lakes, and Energy (EGLE), the ERRC has a unique role in the otherwise standard rule-making process that has traditionally been subject to oversight from the agency itself and the state legislature’s Joint Committee on Administrative Rule Making (JCAR). By default, the ERRC has review power over all rules proposed by EGLE and the opportunity for intervention occurs in three stages as detailed below.

Stage One: When an approved request for rule-making is made by EGLE, it must then be submitted to the ERRC.[15] The Chair and Vice-Chair of the ERRC then has 14 days to determine whether a rule requires no further review from the ERRC.[16] If the ERRC decides that a rule requires no further review from the committee, that rule then follows the standard rule-making process and the ERRC has no opportunity to review the rule later in the rule-making process.[17] However, this determination by the Chair and Vice-Chair may be overridden by the whole committee vote if at least three members request a vote on the determination and at least seven members vote in favor of overriding it.[18] If the ERRC chooses to maintain its review power over a proposed rule it, then prompts a second review opportunity at Stage Two.

Stage Two: The second opportunity for rule review comes once EGLE provides a draft rule to ERRC as required by Subsection (3) of the law.[19] Subsection (4) of the law states that after receiving draft proposed rules under subsection (3), the environmental rules review committee shall meet one or more times to consider whether the draft proposed rules meet all of the following criteria:

(a) The office has certified that the draft proposed rules do not exceed the rule-making delegation contained in the statute authorizing the rule-making.
(b) The draft proposed rules reasonably implement and apply the statute authorizing the rule-making and are consistent with all other applicable law.
(c) The draft proposed rules are necessary and suitable to achieve their purposes in proportion to the burdens they place on individuals and businesses.
(d) The draft proposed rules are as clear and unambiguous as reasonably appropriate considering the subject matter of the proposed rules and the individuals and businesses that will be required to comply with the proposed rules.
(e) The draft proposed rules are based on sound and objective scientific reasoning.[20]

Within 35 days after receiving draft proposed rules under subsection (3), the environmental rules review committee shall make 1 of the following determinations:

(a) By a vote of 9 voting members of the environmental rules review committee, a determination that the request for rule-making must not proceed any further under this section, but must proceed under the otherwise applicable sections of this act.
(b) By a majority vote of the voting members of the environmental rules review committee, a determination that the draft proposed rules meet the criteria in subsection (4) and may proceed to a public hearing…
(c) By a majority vote of the voting members of the environmental rules review committee, either a determination that the draft proposed rules do not meet the criteria in subsection (4) or that additional review is needed to determine whether the draft proposed rules meet the criteria in subsection (4). If the environmental rules review committee makes a determination under this subdivision, the draft proposed rules must not proceed to a public hearing . . . .[21]

If the ERRC determines that a rule does not meet the abovementioned criteria, the ERRC must inform EGLE and EGLE has 90 days to address the ERRC’s concerns.[22] If EGLE is unsuccessful in addressing those concerns after 90 days, the criteria review process may be extended for two additional 90-day periods–giving the ERRC the right to pause the rule-making process for up to 270 days before continuing to formal public hearings.[23]

Stage 3: Following the public hearing, EGLE has 120 days to submit an Agency report to the ERRC.[24] Upon receiving that report, the ERRC has 120 days from receiving the report to meet and determine whether to approve, reject, or modify a draft rule.[25] If approved, a draft rule then proceeds onto the standard rule-making process with no further review from the ERRC. But if the ERRC rejects or proposes a modification a draft rule, it notifies the Director of EGLE and EGLE has 11 months from the date of the public hearing to resolve issues raised by the ERRC.[26] If resolved, the ERRC may approve a draft rule and it continues onto standard rulemaking and finalizations.[27] If EGLE cannot resolve the issues raised by the ERRC, the Director of EGLE submits their written findings to the Governor and the Governor decides whether to withdraw the rule or concur with EGLE and submits the rule to the state legislature’s Joint Committee on Administrative Rule Making for final approval, thus ending the ERRC’s oversight role of review in the rule-making process.[28]

A flowchart of this entire process can be found on EGLE’s website.[29]

What is the key takeaway about the ERRC?

The ERRC has significant oversight of the rule-making process. While it cannot directly approve or kill a rule, it can allow a rule to proceed in a more expeditious manner by deciding to relinquish its oversight early in the process, or it can significantly delay the promulgation for more than a year if it exercises its full rejection and inquiry authority at each stage causing the EGLE or the Governor to give meaningful consideration as to whether to proceed or withdraw a draft rule.

Where can I find information and to stay up-to-date on the ERRC?

You can find more information about the ERRC including the list of its current members, a schedule for upcoming public meetings, and past meeting minutes on EGLE’s website.[30]

[1]State of Michigan, Gov. Whtimer Makes Appointments to Boards and Commissions (April 5, 2019).

[2] MCL 24.265(2)(e).

[3] Egan & Gray, Legislature Votes to Reject Whitmer’s Environmental Executive Order, Detroit Free Press (February 14, 2019).

[4] Executive Order No. 2019-02.

[5] Biolchini, Lobbyists, Industry Reps Can Now Advise Michigan's Environmental Rules (June 29, 2018).

[6] State of Michigan, Environmental Rules Review Committee (ERRC).

[7] 2018 PA 267.

[8] MCL 24.265.

[9] MCL 24.266.

[10] Supra n 6, Environmental Rules Review Committee.

[11] MCL 24.265(2).

[12] MCL 24.265(7).