Achieving Results, Exceeding Expectations

Environmental Law

Michigan’s New Environmental Science Advisory Board

By Brian Considine.

On October 4, 2018, Governor Snyder appointed members to the newly created Environmental Science Advisory Board. The individuals are:

Kimberlee Kearfott, professor of nuclear engineering and radiological sciences, biomedical engineering and applied physics at the University of Michigan.

Dianne McCormick, director/health officer of the Livingston County Health Department.

Ashley Moerke, director of the Center for Freshwater Research and Education and a professor for the School of Natural Resources and Environment at Lake Superior State University.

Lawrence Lemke, professor and chair of the Department of Earth and Atmospheric Sciences at Central Michigan University.

Steven Pernecky, professor in the Department of Chemistry and associate dean of the College of Arts and Sciences for Eastern Michigan University.

George Wolff, principal scientist for the environmental consulting firm Air Improvement Resource, Inc.

Lauren Brown , scientist for Abt Associates with experience in chemical risk assessment.

John Matonich, board chair for Rowe Professional Services Company, Inc. and previously served as chair of the Michigan Natural Resources Commission..

Joan Rose, professor and co-director for the Center for Advancing Microbial Risk Assessment at Michigan State University.

The Governor was given power to establish this Board when he signed into law Act No. 269 of the Public Acts of 2018 (the “Act”).  The Board is investigatory only and is intended solely to advise the Governor on matters affecting the protection of the environment and management of the State’s natural resources.   Although the Board addresses matters regarding the environment and natural resources, it is not a division of either the Department of Environmental Quality or the Department of Natural Resources but rather resides in the Department of Technology, Management and Budget.

Pursuant to Section 2603(2) of the Act, the Board is comprised of 9 individuals who are not compensated for their services and must have an expertise in 1 or more of the following specialties:

(a) Engineering.

(b) Environmental science.

(c) Economics.

(d) Chemistry.

(e) Geology.

(f) Physics.

(g) Biology.

(h) Human medicine.

(i) Statistics.

(j) Risk assessment.

(k) Other disciplines that the governor considers appropriate.

The Board may provide advice on a given issue only when requested to do so by the Governor.  Upon receiving such a request, the Act requires the designated chairperson to convene a committee comprised of board members with expertise relevant to the issue and the committee formulates recommendations.

As set forth in Section 2609(2) of the Act, there are two key factors that the Board and any committee must follow in carrying out its investigatory and advisory duties: objective reasoning and sound science. In addition, if requested by the Governor, the board shall consider all of the following factors in rendering its opinions: relative and realistic risks to human health and the environment, practices used by the federal government and agencies of other states, economic reasonableness and any other factor specified by the Governor.  When carrying out its duties, the Board must conduct its business at public meeting in accordance with the Open Meetings Act (MCL 15.261 et seq.)

The Board cannot review or give advice on any permit, license or environmental impact statement, and the advice provided by the Board is not legally binding on any individual or governmental agency.

Although the creation of the Board seems relatively benign, there are a number of questions that will invariably arise given the purpose of the Board and language of the Act.  For example, what does the Act mean by “objective reasoning” and “sound science”? Are these undefined, broad terms open to such a wide range of interpretation that they will make the Board’s recommendations subject to criticism?  Similarly, what is meant by “relative and realistic” risk?  Is that the same as the “likelihood” of the risk and, if so, would it not also be important to balance that with the cost of the outcome if the risk comes to fruition? (ie, low risk/catastrophic outcome versus high risk/low impact outcome). The Board is given the power to adopt operating procedures, but does that include the ability to define what these terms are to include?  Unfortunately, these questions will have to be answered “on the fly” as the Board is given assignments by future Governors.