It’s Time for Citizens and New State Leadership to Undo the Unconstitutional Attack on Our Water, Environment, and Public Health
It’s January 2019, and it is time to unpack and undo the anti- water, air, environment, public health, and community laws passed by the Republican-run Legislature and signed by Michigan Governor Rick Snyder in the last two months of 2018. Lame-duck lawmakers and now ex-Governor Snyder blatantly followed a hit-list prepared by far-right, big business-supported organizations that plot ways to put their own self-interests and economic gain above all else – including our air, water, and natural resources.
Now that it is 2019, and Governor Gretchen Whitmer and Attorney General Dana Nessel have been sworn in, and a slightly changed legislature has returned to Lansing, is there anything that can be done about this unprecedented, massive rollback of laws that protect our state’s air, water, and natural resources from pollution, impairment and destruction?
The answer is: “yes.” Here’s why. When Michigan constitutional convention delegates approved and citizens adopted our current state constitution in 1963, two provisions imposed mandates on the Michigan legislature when considering and voting on bills before they become law. Michigan Constitution Article IV, Section 52 declares:
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. [Emphases added]
This constitutional provision demands that the state’s air, water, and natural resources are treated and protected as “paramount,” which means “above all else.” In 1970, the legislature responded by passing the Michigan Environmental Protection Act. The MEPA, as it is known, charged the courts with hearing the coming controversies between citizens and polluters, or between citizens and state and local governments, when they failed to act to protect the public’s use and enjoyment of the air, water, natural resources, and the public trust in those resources. Affected citizens were granted the right to bring civil lawsuits in our circuit courts to protect our environment and the public trust from likely harm, and to force polluters and government to choose alternative courses of action that would not likely harm the environment.
On the heels of the MEPA’s passage, the legislature approved a number of landmark laws to protect our water and environment, including the Inland Lakes and Streams Act, the Wetlands Protection Act, the Solid Waste Management and Hazardous Waste Management Acts, the Natural Rivers Act, and the Wilderness and Natural Areas Act. In two test-cases in 1974 and 1975, the Michigan Supreme Court ruled that Article IV, Section 52 is self-executing, which means that the section imposes a mandatory duty on the legislature and government to pass laws that protect the air, water, and environment and public health from harm. In the first, the Supreme Court halted an expressway in southeast Michigan because the highway department had failed to comply with its duty to consider the effects on the environment and the alternatives that may be available or feasible to accomplish the same purpose as the expressway. In the following year, the Court in 1975 stopped a county drain project because a drain commissioner failed to fulfill his duty to prevent water pollution in approving and implementing the project. The Court ruled that the MEPA and laws like it that protect the environment constitute a response to the constitutional mandate.
As a result, in 1990, the Michigan Legislature put into place a “polluter pay” law that imposed strict liability on those who for far too long dumped, released, or discharged toxic chemicals into our air, water, and soil. This law, too, followed the legislative mandate to pass laws that protect the air, water, and environment under Article IV, Section 52 of the constitution. Unfortunately, in 1995, the Legislature and Governor John Engler weakened the “polluter pay” law in defiance of the constitution. But the courts have continued to uphold the MEPA, and protection of our wetlands, rivers, lakes, Great Lakes, endangered species, wilderness areas, and special places such as the Pigeon River Natural Area from oil and gas development.
In late 2018’s lame-duck feeding frenzy, the legislature and Governor Snyder did just the opposite: they enacted laws that repealed or weakened the pollution and environmental standards and responsibilities imposed by the legislature in the past 50 years in response to the constitutional mandate of Article IV, Section 52. For example, the lame-duck hit-list includes:
- A ban on state laws that are stricter than federal air, water, and environmental standards, unless there are clear and convincing exceptional circumstances. The federal government is in the process of dismantling mercury and other toxicity standards, wetlands regulations, water quality standards, and protection of parklands and water resources from off-shore oil and gas or mineral developments.
- A law that would “overhaul” (a euphemism for “repeal” or “gut”) state standards for requiring cleanup of hazardous and toxic pollution land and groundwater sites throughout Michigan. The attack on the “polluter pay” provision and weakening of cleanup standards has been going on for 20 years, but this latest hit is a decision to keep thousands of toxic chemical sites unabated, and an invitation for industry to pollute by discharging and releasing chemicals at higher rates because they no longer require cleanup.
- A law that changed the definition of wetlands in order to remove thousands of acres of wetlands from protection, at a time when extreme weather events fueled by greenhouse gases, like the catastrophic flooding in the Upper Peninsula last fall, demand more wetlands protection.
What the legislature and Governor Snyder have tried to do is to strip our new governor and our state agencies’ power to pass regulations to protect the air, water, and environment as required by Article IV, Section 52. The Republican-controlled lame-duck legislature and Governor exceeded their authority and violated the mandate to pass laws that “protect the air, water, and natural resources from pollution.” These laws don’t protect the environment; they hasten to pollute and destroy it. These laws are unconstitutional. I call on our new Governor Whitmer and Attorney General Nessel, our newly seated legislators, and citizens to take immediate steps, including lawsuits if necessary, to void or refuse to apply these laws that violate our constitution’s mandate to protect the public’s paramount interest in our air, water, natural resources.
 Highway Department v Vanderkloot, 392 Mich 152 (1974).
 Ray v Mason County Drain Commissioner, 393 Mich 294 (1975).
 See Jim Malewitz, Bridge Magazine, December 28, 2018, https://www.bridgemi.com/michigan-environment-watch/gov-snyder-signs-michigan-lame-duck-bills-opposed-environmentalists.