A Bad Week for Democracy in Michigan
You probably won’t hear about it much in the news, given recent events in the national political arena, but two very bad regulatory decisions were made here in Michigan this week that ought to alarm you. Both of them could significantly weaken local authority—like efforts to protect sensitive natural resources— in matters involving energy infrastructure.
If you’re a fellow Line 6b landowner, you may be apt to experience a disturbing flashback, as I did. So brace yourself. You might recall that one of the prolonged controversies during the “replacement” had to do with the question of whether Enbridge was required to comply with local ordinances or obtain local consent for their work as stipulated by the Michigan constitution. I wrote about this on a number of occasions. Well, this week, the state Supreme Court issued a ruling on a very similar question. In effect, the decisions says that the Michigan Public Service Commission (you remember them, right), comprised of political appointees who are in no way accountable to voters, can preempt ordinances passed by democratically elected local officials.
Here’s the story: over in Oshtemo Township near Kalamazoo, a utility company called the Michigan Electric Transmission Company (METC) wanted to install a new electrical transmission line. In keeping with practices by now all-too-familiar, the company failed to communicate openly with local officials—despite repeated requests from township officials—and provided the township with very little information about the project, including about things as basic as routing. Unable to obtain precise information from METC and undertandably concerned about its natural resources, the township then passed an ordinance requiring the transmission line to be buried underground where it passes through the village. METC ignored this ordinance and applied for a certificate from the MPSC anyway.
On the question of the compliance with the ordinance, the Administrative Law Judge in the case sided with Oshtemo Township. The MPSC, however, disagreed with the ALJ and insisted that their own decision effectively overrode the authority of the Oshtemo ordinance. Here is what the MPSC said:
The Staff argues that the purpose of the Oshtemo ordinance was to usurp Commission authority and create an obstacle to the construction of the project. The Staff reiterates its opposition to enforcement and further disagrees with the ALJ’s recommendation that the Commission condition the CPCN on a requirement that METC underground a portion of its line as required by the ordinance.
Note that the Commission’s primary concern is with its own “authority,” not the will of the people (of Osthemo Township), the legitimacy of statutes passed by democratically elected officials, nor the protection of the township’s natural resources. Sound familiar?
So this week, the Michigan Supreme Court heard the township’s appeal on this matter (which was supported, it’s worth noting, by the Michigan Townships Association, which certainly understood the stakes of the matter) and sided with the MPSC. What that means is that a few—and I mean literally a few: THREE, to be precise—unelected, industry-friendly regulators who, history shows, have very little interest in actually regulating the behaviors and actions of large companies like METC (and Enbridge and Energy Transfer) or in protecting the citizens they are ostensibly appointed to serve get to dictate energy and right-of-way policy over and above the actions of elected officials in every single community across the state. You tell me who’s doing the usurping here.
Of course, it’s also the case that not every decision made by a duly elected legislative body is a good one. In fact, the Michigan legislature seems to excel and making abominable decisions. Which brings me to the second bad news of the week. The state House of Representatives just passed HB 4205, which is unoffically called the “no stricter than federal” bill. The bill’s foolish idea—and believe me, I know this sounds absurd— is to prohibit state regulatory agencies from making any rules that are stricter than already existing federal regulations. This is transparently idiotic, since federal regulations, weak and ineffectual as they tend to be, do not account for local conditions. How could they? Yet Michigan state legislators want to make it harder, not easier, for state-specific regulations—regulations that might help protect the state’s thousands of miles of coastline, its freshwater resources—to be enacted. It’s as if no Republican member of the state House (no Democrats voted for the bill) has ever heard of, say, Flint. Or petcoke.
What’s worse is that the House already tried this— six years ago. But back then even Governor Snyder thought it was a bad idea and vetoed the bill. Yet here it is again. I have already written to my representative, Joe Graves, expressing my great disappointment in his vote for this terrible legislation. And I’ll be writing to my state senator and the Governor as well. I encourage you to do the same.
As many of you know, postcards from Enbridge have been arriving in the mail this week announcing a “Community Meeting.” In fact, Enbridge is (has been) holding a number of these meetings around the region this spring (details below). Understandably, this has people wondering and wary as to what Enbridge might be up to now. We’ve received queries from a number of people and also heard rumors of various sorts. So we just wanted to take a minute to set the record straight about these meetings.