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The Republican-led Senate is one floor vote away from doing something that hasn’t been done in Michigan in more than 40 years: reject a governor’s executive order. House Republicans got the ball rolling last week. On a party-line vote, they adopted a measure that would send Gov. Gretchen Whitmer back to the drawing board in crafting a re-jiggering of the Department of Environmental Quality.
Whitmer’s first major restructuring of state government folds the Office of the Great Lakes into a new Department of Environment, Great Lakes and the Energy. The new department is being led by a longtime renewable energy professional, Liesl Clark.
The Republicans don’t have a problem with shuffling state agencies. Here’s what they don’t like. The restructuring eliminates three government boards the Republican lawmakers created with Gov. Rick Snyder last summer to bird-dog a possible Democratic governor on environmental issues.
One commission is charged with overseeing the crafting of administrative rules, the not-quite-laws that departments write that you, I and the business community must follow on water, land and air use.
The second body is a new appellate commission for those with rejected permit requests.
The department director would still have the final say on approving a permit to pollute, but the commission would — after hearings and fact gathering — give the director more information.
The third body is a completely advisory science commission that the department or governor may use or ignore.
For the business community and Republican legislators, these commissions are designed to keep aggressive environmental regulators in check. It gives “the little guy” a voice in cases where overzealous regulators are overstepping its bounds.
For Whitmer, the commissions waste time. The process already has enough checks and balances to protect landowner rights and environmental law.
Nonetheless, the state Constitution gives the Legislature the power to reject an executive order because EOs can amend law. Such is the case here. Whitmer is eliminating three bodies that were legislatively created.
So, if the House and Senate want to dump the EO, they can and have. In 1977, the Democratic-controlled legislature did this to Republican Gov. Bill Milliken. Milliken’s former legal counsel, Peter Ellsworth, said Democrats routinely gave Milliken a hard time about his EOs.
Milliken would come out with an EO. Democrats would usually raise objections. They’d negotiate. Milliken would rescind the EO and come back with one that represented the compromise.
Maybe that’s what happens in 2019. Maybe Whitmer will agree to pull the EO after working something out with the Republican Legislature.
That’s not her strategy for now. She told the press moments after the House rejected her EO that if Republican senators don’t want to support “clean drinking water,” it’s on them.
“We need to be very clear,” she said. “The House Republicans today on a party-line vote voted down protections for drinking water. They voted down the creation of a public advocate for clean drinking water. They voted against a public advocate on environmental justice.”
Republican senators such as Sen. Ed McBroom, R-Vulcan, and Jim Runestad, R-White Lake, have said they find such comments insulting. They only want these oversight commissions back. She can have the rest of the EO.
The Legislature has 40 days to reject an EO or it goes into effect. It took the House two days to vote, due in part to leaders feeling miffed about not being given a head’s-up that this was coming.
The Senate Oversight Committee is scheduled to hold its second hearing on the matter on Feb. 13.
Senate Majority Leader Mike Shirkey holds the cards. He has the votes to kill Whitmer’s EO, but he said he’d rather it not come to that. He’d prefer that the first real confrontation between the Legislature and the governor not be a turf war.
At some point, there will be something the Republican legislators want that Whitmer won’t want to give on. Could this be the start of a cooperative working relationship between the two branches of government?
Or will the same, Washingtonstyle, surrender-no-ground approach be the standard state legislators and Michigan’s governor follows?
(Kyle Melinn, of the Capitol news service MIRS, is at melinnky@gmail. com.)