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November 19, 2019

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Michigan DEQ Restructuring: The EGLE Has Landed

New Michigan Governor Gretchen Whitmer issued an executive order on Feb. 4, 2019, to reorganize the Michigan Department of Environmental Quality as the Department of Environment, Great Lakes and Energy (EGLE).

Executive Order 2019-2 abolishes the Office of the Great Lakes in the Department of Natural Resources, but a new Office of the Great Lakes is established in EGLE.

The newly created Office of the Clean Water Public Advocate will address complaints and concerns related to drinking water quality, likely in response to the City of Flint drinking water crisis.

The Michigan Agency for Energy is replaced by the Office of Climate and Energy, which will have similar responsibilities but also will make recommendations on how state and local governments can mitigate climate change. The Energy Security section of the former Michigan Agency for Energy will be transferred to the Public Service Commission (which is now within the Department of Licensing and Regulatory Affairs).

In addition to a clear emphasis on clean water and climate change, Executive Order 2019-2 also focuses on environmental justice. It creates the “Interagency Environmental Justice Response Team” as an advisory body, perhaps somewhat similar to MPART discussed below. There is also a new Office of the Environmental Justice Public Advocate.

The executive order also purports to eliminate the Environmental Rules Review Committee, Environmental Permit Review Commission, and Environmental Science Advisory Board, all of which the Michigan Legislature established by statute last year. It does, however, authorize the EGLE director to establish science review boards, and establishes the Michigan Office of Administrative Hearings and Rules.

The Michigan Legislature remains under Republican control, and there is a question as to whether it will reject the executive order on the basis that the governor has exceeded her constitutional authority in attempting to change legislative enactments by an executive order.

Executive Order 2019-3, also issued on February 4, confirms that MPART (Michigan PFAS Action Response Team) will continue into this new administration. The previous administration established MPART in 2017, as the first multi-agency approach to PFAS emerging contaminants. MPART issued its report of findings and recommendations in December 2018. There was some uncertainty as to whether MPART would continue or be replaced following the election, even though the challenges of PFAS management were expected to still be a priority.

The Michigan Legislature has 60 days to review these executive orders. The State House has already passed a resolution rejecting EO 2019-2, and the issue now moves to the Senate. The Michigan Legislature last rejected an executive order in 1977, when William Milliken was governor.

Governor Whitmer may also ask the attorney general for an opinion on the propriety of EO 2019-2. Negotiations around the DEQ reorganization and related considerations are expected.

© 2019 BARNES & THORNBURG LLP

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Charles Denton Environmental Attorney
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Charlie Denton represents an array of clients in environmental and toxic tort litigation, enforcement defense, regulatory compliance solutions and pollution insurance coverage disputes. He also serves as an alternative dispute resolution (ADR) neutral mediator and arbitrator. Persistent and highly collaborative, Charlie can take complicated issues and challenges and then identify a strategic path to achieve the client’s objectives.

Charlie’s representation of industrial, municipal, institutional, educational and individual clients includes judicial and administrative environmental...

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