MIRS provides comprehensive news and analysis of state government delivered in written reports detailing the activities of the House, Senate, Judicial and Executive branches of Michigan state government.
Michigan News And Capitol Report, Week Ending Fri., Nov. 8, 2019
Deal Quashed, Senate Republicans Say: ‘No’
Speculation that a deal between Gov. Gretchen Whitmer and House Speaker Lee Chatfield (R-Levering) could lead to passage of a roughly $1 billion supplemental budget were dashed at the 2-hour and 4-minute mark of Thursday’s Senate session when Senate Majority Floor Leader Peter MacGregor (R-Rockford) announced adjournment until Nov. 12.
This came immediately after the four-bill Third Reading agenda was dispensed with, and only minutes after the Republicans returned from a caucus meeting. Later in the day, the House adjourned with plans to return to Lansing next Wednesday to deal with the supplemental issue as well as legislation pertaining to Switch.
The Whitmer-Chatfield agreement was an attempted compromise by which Whitmer would agree to boilerplate language ostensibly preventing her from going to the Administrative Board and rearranging spending from the supplemental without her signing away some of her own gubernatorial budgetary powers. This route was apparently OK with House Republicans, but not OK with Senate Republicans.
“Senate Majority Leader Mike Shirkey (R-Clarklake) and the Senate Republican Caucus agree with all components of the deal that were put forward but for the fact that it didn’t include the weight of law,” Shirkey spokesperson Amber McCann explained. A reporter asked if that meant the Senate Republicans are continuing to pursue a statutory change regarding the budget process?
“The Majority Leader cannot rely upon the Governor making a promise,” McCann asserted. “There is a list of people who, relying on the Governor’s promise for this budget, that are now sitting empty-handed. So, in order for us to ensure that any future budget process can be relied upon, we have to have a change in statute.”
Senate Minority Leader Jim Ananich (D-Flint) told reporters that the Governor, the House and Senate Democrats were all onboard with the deal but Sen. Shirkey and the Senate Republican Caucus didn’t agree.
“The supplemental had been negotiated, they’d been getting details, I thought we were going to have that resolved today but apparently that’s no longer the case,” Ananich said. “Permanent changes to the Ad Board are apparently more important than finding an equitable solution to the supplemental. So, hopefully we’ll continue to negotiate but… you know, it was agreed upon in the House and the Governor and we probably had agreement here but apparently that wasn’t the case.”
A reporter asked what is at stake regarding the supplemental.
“We had $1 billion that were either vetoed or a number of transfers that would have been put back,” the Flint Democrat said. “That’s for secondary road patrol, that’s money for schools. There are all these changes we could have agreed upon and reached a budget like we have for 100 years. But we’re not there; I don’t know if we’re going to get there, maybe the budget is done.”
Earlier Thursday morning, Whitmer seemed upbeat, telling reporters a deal on a supplemental budget that would restore some of 147 program cuts that fell prey to her veto pen last month seemed to be coming together.
"I believe we have found some common ground on what could be a comprehensive supplemental and address a lot of the things people care about,” Whitmer said. “We're very close to being done negotiating a supplemental and I think that's really positive. The Legislature could take action today and get something to my desk and we could put a ribbon on the budget and be done with it."
Whitmer said options are available for removing the Administrative Board issue as an ongoing obstacle. In fact, she specified that there are "five different ways to deal with the Ad Board." In addition, the Governor said she was prepared to call for a meeting this week to rearrange some of the programs she moved around if things progress. However, she had also repeatedly made it clear she’s not interested in signing legislation that would reduce her budgetary powers.
McCann said Shirkey had offered the Governor a number of options, including codifying in statute the mechanism Whitmer and Chatfield had agreed to doing through boilerplate.
“It just comes down to boilerplate versus statute,” McCann summed up. “Since the Governor has previously said boilerplate is not enforceable.”
A reporter asked McCann about Whitmer recommending that groups depending on dollars that would have come to them through the supplemental start lobbying legislators.
“The only person who has taken away their funding is the Governor,” McCann responded.
Meanwhile, Chatfield issued a positive-sounding statement about supplemental budget talks continuing.
“We have had good, productive conversations with the Governor this week that have laid the foundation for future discussions,” Chatfield is quoted saying in the press release. “The Senate Majority Leader, the Governor and I all still have some concerns, and we are going to work through those over the next several days. Everyone wants to see funding restored for these important programs, and we all want to see a permanent resolution to this issue that maintains a constitutional balance of powers and provides real assurances that this situation won’t come around again. We will continue to work together until we reach that point.”
81% Of Local Money Asks Pass
A little more than four-fifths of proposals, including Ann Arbor schools' whopping $1 billion bond, were approved Tuesday as voters said yes to nearly $2.4 billion in local asks. Click here to see a spreadsheet of all the results.
In Ann Arbor, about 53 percent of the 24,000 voters approved the millage for capital improvements in the city's school district.
Close to a fourth of school funding proposals on the ballot failed, nearly $700 million denied, including a $240 million bonding proposal from Dearborn's school district. Monetarily speaking it's a considerably higher proportion of school money rejected than in 2015. Still, more than $2.2 billion in school funding was approved.
Voters were presented with 35 different school bonding proposals, which is an unusually high number. Most, 24, passed.
Only eight of the 63 non-school proposals were rejected by voters, however, most prominently was a $21 million road millage in Lathrup Village. It was the largest non-school request. The other 10 roads-related millages passed, save for one in Cass County's Calvin Township. About $25 million was approved for street repair.
Another notable proposal that failed at the ballot box was an income tax in the city of Lowell -- yet voters still approved a property tax deduction that was contingent on the income tax's approval.
A $1 million millage for operating costs for Bay de Noc Community College in Delta County was soundly rejected, with 74 percent of voters voting "no." The Oakland Community College mileage renewal passed.
Public safety money-asks -- those for ambulance, police and fire -- did well. Twenty-two passed and only four failed. Six different library proposals, including two in Flint, all passed.
The Gladwin special assessment for mosquito spraying also passed. Three ballot questions on raising money for parks all passed, including an indefinite $5 million millage in Grand Rapids for parks.
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AG Files Intent To Appeal Enbridge Ruling
Attorney General Dana Nessel filed notice Nov. 5 with the Court of Appeals that she is bringing her claim that the law allowing for an Enbridge Energy's Line 5 tunnel construction is unconstitutional.
Nessel has 56 days to file a brief outlining why the appeals court should consider her request to overturn Court of Claims Judge Michael J. Kelly's ruling that said 2018 Public Act 359 is constitutional.
"We always expected this matter would be resolved in the appellate courts," Nessel said in a statement. "While I disagree with Judge Kelly's decision, I appreciate how promptly he addressed this case and issued his opinion. This is just the first step in the court process, and I am more resolved than ever to continue this fight on behalf of the people of Michigan."
Enbridge spokesperson Ryan Duffy said Enbridge is "pleased the Court of Claims ruled in our favor" and the company remains "fully committed to the Great Lakes Tunnel Project."
Enbridge has 35 days to respond once the state files its brief, and the state gets another 21 days to respond before the court would consider the request.
Nessel opined in March that the tunnel legislation violates the state constitution because its provisions go beyond the scope of what was disclosed in its title.
Enbridge filed its lawsuit in June, seeking to enforce its Line 5 tunnel agreement with the state, which approved PA 359 and the creation of the Mackinac Straits Corridor Authority.
The ruling in the Court of Claims case has no impact on Nessel's separate lawsuit in Ingham County Circuit Court seeking to decommission Line 5 based on the public trust doctrine and other common law and statutory claims. The remaining briefs in that case are due Nov. 12 and Dec. 10.
In related news, Nessel said an analysis by Middleton, Wisconsin-based American Risk Management Resources Network (ARMRN) shows that Enbridge's pledge to cover cleanup costs from a potential Line 5 oil spill may not be legally enforceable, according to an MLive story.
The story quoted Nessel as saying Michigan residents could "be left holding the bag for more than a $1 billion in unfunded liability."
Duffy told MIRS Nov. 5: "The report is not correct. Enbridge pledges to take full responsibility for the cleanup of any incident in Michigan or anywhere along our pipeline system. The company's strong financial position and follow through on our commitment to Marshall, Michigan, support this pledge."
Enbridge's 30-inch pipeline ruptured near Marshall in July 2010, releasing about 843,000 gallons into the Talmadge Creek, which flowed into the Kalamazoo River. Heavy rains caused the river to overtop dams and carried oil at least 25 miles downstream.
The ARMR report, commissioned by the AG's office; the Department of Environment, Great Lakes and Energy (EGLE); and the Department of Natural Resources, says Enbridge's corporate structure allows the Canada-based parent company, Enbridge Inc., to remain free from liability.
Duffy said its agreement is clear that they have provided the financial assurances to cover an accident.
Enbridge provided detailed 2019 financial assurances "that we have the ability to cover all costs in the unlikely event of an incident in the Straits" to Michigan on Oct. 4. He said the state's analysis notes that if Line 5 ruptured today, "Enbridge Inc. has the financial capacity to voluntarily pay up to $1.878 billion to fund an environmental cleanup and to compensate victims."
"The bottom line," Duffy said, "is Enbridge will take full responsibility and pay for all costs related to an incident."
Michigan Chamber of Commerce President Richard Studley also questioned the study's findings with a short series of tweets, including one that said the timing of the study's release "is an obvious attempt by the Attorney General to shift attention away" from the Court of Claims defeat.
"There are serious questions about this 'study.' 1st, why did the AG hire this company from Wisconsin?" he tweeted. "ARMR is an insurance brokerage firm, not a law firm. 2nd, is the President of ARMR an attorney? No. He sells insurance & is an 'expert witness' for hire."
Studley also questioned whether the study is "objective and impartial" and how much it cost taxpayers.
ARMR President David Dybdahl arguably isn't unfamiliar with Enbridge as he testified before the Minnesota Office of Administrative Hearings about Enbridge's Line 3 pipeline.
Dybdahl is an insurance broker who specializes in the sale of an insurance produced called EIL insurance, an industry he told the Minnesota hearing officer resembles a "reverse game of musical chairs."
In his testimony, he made recommendations for Minnesota, but the hearing officer concluded: "Mr. Dybdahl's testimony lacked merit and credibility, as he had not reviewed the specific language of Enbridge's insurance policies . . . Moreover, Enbridge has a proven track record of responding with its own financial resources to events on its system."
Settlement Calls For Dow Chemical Co. To Restore Natural Resources In 3 Counties
Under an agreement announced Friday with federal, state and tribal governments, the Dow Chemical Company will restore natural resources in three mid-Michigan counties.
The Midland company will spend about $77 million in projects and funding that will restore fish, wildlife, and habitats injured when hazardous substances were released in past decades from Dow’s manufacturing facility. The projects are in Midland, Bay, Saginaw and nearby counties, and include fish spawning improvements; restoration of wetlands and other habitats; and protection of a green corridor along the Tittabawassee River, among other projects.
"This settlement has been more than a decade in the making by a combined team of state, federal and tribal partners working together for the benefit of Michigan's environment and precious natural resources," said Attorney General Dana Nessel. "I look forward to seeing these projects implemented to the benefit of the communities and ecosystems impacted by Dow's contamination."
The agreement is subject to public comment and approval in federal court.
Contaminants released from Dow's Midland facility over many decades injured fish and wildlife and natural areas in and around the Tittabawassee River, Saginaw River and Saginaw Bay. The new agreement will address these injuries within Midland, Saginaw, and Bay counties.
The settlement also provides for at least $5 million for additional projects to be solicited from the public, and up to $10 million for long-term stewardship of the restoration projects, monitoring, and trustee costs to implement the settlement.
Natural resource trustees -- the Department of the Interior's U.S. Fish and Wildlife Service and Bureau of Indian Affairs; Michigan Department of Natural Resources; Department of Environment, Great Lakes, and Energy, and the Attorney General's office as well as the Saginaw Chippewa Indian Tribe of Michigan -- will hold a public meeting at 7 p.m. Nov. 21 at the Four Points by Sheraton Saginaw, 4960 Towne Centre Road in Saginaw, to provide more information on their draft restoration plan, which describes how the settlement will be implemented.
Public comment on the agreement is accepted.
The public may comment on the Draft Restoration Plan and Environmental Assessment as well as on the proposed Consent Decree that outlines the settlement provisions.