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Returning Expertise to Michigan’s Environmental Rulemaking

For the first time in decades, Democrats hold a majority of both chambers of the Michigan legislature—an opportunity that Governor Gretchen Whitmer seems determined not to waste. Whitmer suggested in a roundtable with reporters that, among her other priorities, she was considering eliminating the controversial Environmental Rules Review Committee, or ERRC, a move she has contemplated since early in her first term.

The ERRC is controversial because of the role it plays in overseeing environmental rulemaking. As its name suggests, the ERRC reviews environmental rules proposed by Michigan’s Department of Environment, Great Lakes, and Energy, or EGLE. But, as critics have noted, the ERRC’s review process seems designed largely to impede the rulemaking process. Indeed, the ERRC creates special procedural hurdles that environmental rules must clear before they can go into force. And its membership, by statute, must include representatives from a number of industries—like oil and gas, agriculture, and manufacturing. Together, these special procedures suggest that the ERRC was designed to advance business interests over environmental ones.

But, leaving aside potential pro-business bias, there is a more significant problem with the powers granted to the ERRC. The ERRC is charged with making determinations about the legality, scientific soundness, and costs and benefits of proposed environmental rules; nevertheless, the ERRC is designed to incorporate the views of members who explicitly lack expertise in the subjects they are asked to regulate. From a legal perspective, the ERRC must determine whether a proposed rule is consistent with the legislature’s delegation of authority to EGLE and whether it is compatible with all other applicable laws. From a financial perspective, the ERRC must determine whether a proposed rule is “necessary and suitable” to achieve its goal “in proportion to the burdens” it will create. And from a scientific perspective, the ERRC must determine whether a proposed rule is based on “sound and objective scientific reasoning.” If the ERRC determines that a proposed rule does not meet these criteria, it has multiple opportunities to delay its promulgation and influence its substance.

Despite the fact that the ERRC is charged with making legal, scientific, and financial determinations, the composition of the ERRC makes it very unlikely that its members will have the expertise necessary to carry out its statutory mission. Of the twelve voting members of the ERRC, the statute reserves two spots for members of the general public and one for a small business owner. None of these three are likely to have expertise in any of the subject matters that the EGLE regulates. Most of the ERRC’s other members represent various industrial groups. Although these industry representatives likely will have some expertise in the environmental issues that affect their industries, none will have expertise in most of the countless other subject matters that EGLE regulates, including drinking water, dams, floodplains, shipping, and many others. Indeed, none of the ERRC’s members are agency personnel whose jobs require them to learn about the legal, financial, and scientific issues involved in environmental regulation; rather, all are appointees chosen from the public.

As I have argued in greater detail in a recent Essay, there are two significant problems that a statute creates when it delegates power over rulemaking to nonexperts. First, and most obviously, delegation to nonexperts is likely to lead to regulation that fails to reflect the level of expertise we have come to expect from our regulatory bodies. Agency personnel are well-situated to develop expertise. They have the time and resources to learn about the subjects they regulate, whether it is water quality, PFAS, or other matters. And they have the incentive to learn about these subjects—as agency employees, it is their job to develop competency in the subject matters they regulate. Nonexpert delegates, by contrast, do not have the same level of expertise. Whatever their occupations, they are simply not immersed on a daily basis in the broad array of issues that arise in the context of statewide environmental regulation. And importantly, because these delegates do not work for the agency, they do not have the incentive to develop the scientific, legal, and financial background necessary to make the decisions asked of them.

Second, inexpert regulation can shade into regulation that is arbitrary and capricious. Without subject matter expertise—in the case of the ERRC, expertise in law, science, and cost-benefit analysis—it is impossible to make well-reasoned, principled decisions based on facts. Indeed, it may even be impossible for nonexpert members of the ERRC to recognize the legal, scientific, or financial significance of the data they review as part of their decision-making process. How could a member of the public at large, for example, evaluate scientific studies about maximum contaminant levels, or case law about the scope of agency authority? In short, without sufficient expertise, decisions that nonexperts make about technical subjects are likely to lack the minimum level of rationality needed to avoid being arbitrary and capricious.

In conclusion, Governor Whitmer is right to consider modifying, or even abolishing, the ERRC. Without disparaging any of its members, who by all accounts have taken their role seriously and have approached their responsibilities in good faith, the ERRC simply was not designed to be successful. The kinds of decisions left to it—about legal compliance, scientific soundness, and financial costs and benefits—are better left to institutions that can more easily develop the kind of expertise demanded of them.


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