Democrats in the Michigan House and Senate are looking to fortify environmental regulations through a continued effort to reinstate polluter pay in the state.
State Rep. Jason Morgan (D-Ann Arbor) and state Sen. Jeff Irwin (D-Ann Arbor) told the Advance they plan to introduce a package of bills sometime this fall to ensure polluter accountability and cleanup of polluted sites in Michigan.
In the early to mid-90s, Michigan had some of the strongest pollution laws in the nation, environmental advocates say. The program included provisions like joint several liability, where all current and past owners of a property were assumed to be responsible for contamination and determined amongst themselves who held responsibility to pay for the cleanup, said Sean McBrearty, legislation and policy director for Clean Water Action.
This was a fairly straightforward program, placing responsibility for cleanup and cleanup costs on the people who owned the land, McBrearty said.
However in 1995 the administration of Republican Gov. John Engler eliminated this “polluter pay” program, leaving the state with a patchwork of environmental cleanups that are ultimately paid for by residents of the state rather than the entities responsible, McBrearty said.
“Even with taxpayer money going to fund these, we’re seeing the number of contaminated sites, ballooning across the state, and nowhere near enough funding to address them,” McBrearty said.
After the program was eliminated in 1995 there was limited appetite to bring it back. While there have been a number of bills introduced aimed at restoring the polluter pay program, McBrearty said the most recent effort from Irwin and Morgan represents the first real possibility of reinstating a strong political accountability program.
However, while lawmakers work to draft a new program, problems with the current laws remain. One of the largest is a seven-year statute of limitations from the date of a spill.
“Many of these sites sit there for years before they’re discovered,” McBrearty said.
Changing the statute of limitations to when a spill is discovered and laying out a clear path for the state to hold polluting corporations accountable is vital when crafting new policies, McBrearty said.
As it stands, the main way polluters are held accountable is through legal action from the Michigan attorney general, McBrearty said.
While Michigan Attorney General Dana Nessel has been able to secure relief from companies such as Wolverine Worldwide, the main source of funding for environmental cleanup is actually Michigan’s bottle bill, McBrearty said.
The first $1 million in unclaimed deposits collected annually goes to the Michigan State Police to ensure the bottle bill is enforced until that fund reaches a maximum of $3 million. Then 75% of the following collections goes to environmental cleanup, redevelopment and education on pollution prevention. The last 25% is returned to retailers.
“All the dimes that go unclaimed, a good percentage of that goes to pay for environmental cleanup and remediation. But that doesn’t rise anywhere near to the needs that we have,” McBrearty said.
According to Hugh McDiarmid Jr., communications manager for the Michigan Department of Energy, Great Lakes and Environment, there are between 24,000 and 26,000 contaminated sites identified in the state.
The department’s remediation division also reviews and assesses and works to mitigate pollution at more than 1500 sites per year, which includes state-funded orphan sites — areas where a polluter cannot be identified, or no longer exists as a business — and sites where a responsible party has been identified.
Alongside current issues with clean up, Irwin criticized the shift in focus created by the Engler administration’s changes to state pollution laws.
“When I was a pretty small child, Michigan adopted possibly the nation’s strongest polluter pay law, and then a handful of years later, under Governor Engler, that law was eviscerated and changed into a law that focused on managing exposure to pollutants rather than removing them,” Irwin said.
“Ever since then, I’ve been frustrated with that direction and the idea that these companies and their balance sheets, and the profits for their shareholders are more important than the health of the people here who have to breathe the air and drink the water today and the future generations,” Irwin said.
But Irwin and Morgan’s proposed bills would give regulators more tools to require cleanups, remove pollution from the environment and address environmental justice issues.
One of the biggest parts of the process has been working to ensure the policy is not something that is done in name alone, Morgan said. This includes offering more transparency for communities, seeking greater accountability from companies, and making certain sites without a known polluter can still be cleaned up.
Additionally, the newer policy would deviate from the strict liability standards of its predecessor.
Newer polluter pay proposals have never been as strict as the prior standards and have always included acknowledgements that, sometimes, you can’t put the toothpaste back in the tube, Irwin said.
“Sometimes you can’t unring the bell. Sometimes polluters will do something that pollutes the environment in a way where it literally cannot be cleaned up,” Irwin said.
“We need to expect much better performance on these cleanups, but there is a limit to what we can expect,” Irwin said.
What these bills will do is give environmental regulators more tools and more authority to say to polluters “No. We’ve looked at your site, we’ve determined that you can scoop more of this spill out of here before capping it and managing exposure, and we want to require that you do that,” Irwin said.
This legislation is complex and important, Irwin said, and for that reason both lawmakers have been seeking out people to give advice on the issue.
That includes environmental stakeholders, business, community stakeholders, manufacturers and local governments, Morgan said.
“We’ve been talking with everyone who we think would have some involvement and polluter pay legislation and the impact of that,” Morgan said.
By working to understand the limitations of environmental cleanups and the concerns industry leaders might have, the goal is to craft a policy that will do the best job of cleaning up the environment for current and future generations without putting in standards that aren’t attainable, or will be outrageously costly to attain, Irwin said.
Additionally, Morgan said conversations with environmental stakeholders encouraged lawmakers to start fresh and take a comprehensive look at every aspect of how pollution is addressed in the state.
“What I think we will ultimately have as a product will be significantly better than has historically been introduced and will ensure more transparency, accountability, and resources available to truly clean up these sites in our state,” Morgan said.
While polluter pay is immensely popular among voters, the issue has previously faced strong financial opposition from various industries who may be held accountable by these policies, Irwin said.
Given the important role the automotive industry, utility companies and the chemical industry play in Michigan’s economy, Irwin said he and Morgan have done their best to work with them on this issue.
I’ve been frustrated with that direction and the idea that these companies and their balance sheets, and the profits for their shareholders are more important than the health of the people here who have to breathe the air and drink the water today and the future generations.
– State Sen. Jeff Irwin, D-Ann Arbor
“It’s not just about trying to get the political pieces in place to get something done, it’s also about trying to do the right thing,” Irwin said. “I think that we’re most likely to get a good result if we really listen to everybody around the table and try to find answers that don’t only sound good, but that actually will produce good in the long term.”
“If they’re opposed, and we can’t reconcile that opposition, well then we’ll continue to be in opposition. But if they’re opposed, and there is a way to reconcile that opposition because there’s a way to do it better that meets the goals of all involved. Well, then we certainly want to go that way,” Irwin said.
The legislation is designed to help address environmental injustice, Irwin said.
“Anytime you’re talking about pollution control, holding polluters accountable, or requiring more complete cleanups, there is necessarily a heavy element of environmental justice involved, simply because of the environmental injustice that’s pervasive in this space,” Irwin said.
Some specific elements address environmental justice concerns like the cumulative health impacts of pollution.
“Does the department that is charged with protecting our health, do they have the ability to consider cumulative impacts in certain areas that are beset with a lot of pollution?” Irwin said. “Currently, the environmental regulators at EGLE don’t have the tools I think they should have to be able to protect communities against concentrated sources of pollution.”
There are plenty of examples in Michigan. But Irwin referenced Louisiana’s “Cancer Alley,” where air pollution in the heavily industrialized area between Baton Rouge and New Orleans was strongly linked to higher rates of cancer in Black and impoverished communities. A Tulane University School of Law study found that high levels of toxic air pollution caused an estimated 85 cancer cases per year in Louisiana.
Michigan’s proposed polluter pay bills would complement other environmental justice measures introduced by other lawmakers Morgan said, including legislation from state Sen. Stephanie Chang (D-Detroit), which would create a fund from air quality violation fines to improve air quality in disproportionately-impacted communities.
Ultimately polluter pay legislation comes down to a simple principle, Morgan said.
“If somebody makes a mess, they should be paying to clean it up,” Morgan said.
“We think the citizens of our state are eager to support this legislation and to make that case with Republican and Democratic legislators throughout the state. So we’re very excited to be able to get out there and show folks what we’re looking at and hear that feedback from the public and ideally get something done that cleans up our state,” Morgan said.