Michigan Land Use Institute

MLUI / Articles from 1995 to 2012 / Mute in Michigan: Engler’s Moves Weaken Public Input in Protecting the Environment

Mute in Michigan: Engler’s Moves Weaken Public Input in Protecting the Environment

A harrowing property rights agenda takes hold

April 28, 1997 | By Keith Schneider
Great Lakes Bulletin News Service

On June 4, 1996, high court judges in Wisconsin and Michigan issued different decisions in similar cases involving the government’s authority to protect environmentally sensitive land. In an ironic twist, these completely contradictory rulings, issued on the very same day, fashioned a moment of utter clarity in the political dust storm stirred up by the clash over private property rights.

In Wisconsin, the state Supreme Court rejected a property rights claim by a landowner, and ruled that the city of Waukesha can enforce its zoning law to prevent development of a 10-acre wetland.

In Michigan, though, an Appellate Court awarded $5.2 million of taxpayer money to K&K Construction Co., ruling that the Department of Natural Resource’s decision to bar development of wetlands on an 82-acre parcel in Oakland County constituted a "taking" of private property.

The Wisconsin case reinforced the traditional legal interpretation of the Constitution that forms the basis of property law in the United States.

However, in Michigan’s K& K case, the Appellate Court went against the grain. The decision not only codified the radical property rights ideology that has taken hold in state government -- it also established a powerful precedent. The cost of such decisions is being used by Michigan regulators as justification not to execute their proper duties to safeguard the public interest.

Such a harrowing change in the state’s program of environmental protection represents the culmination of a well-executed strategic plan that has been put into place by the Engler Administration during the last six years. In no other state has the property rights ideology gained such influence at the top levels of government.

To a large extent, the movement’s success in Michigan is due to the political attractiveness of the message: Reduce the size and intrusiveness of government. However, the Governor has taken advantage of grassroots support for this goal, and used it as an ideological foundation to lower regulatory barriers for businesses. Simultaneously, the Administration steadily erected higher barriers for citizens to become involved in state decision making.

The result is that business interests have gained even greater access to state government than they already enjoyed, while essentially everyone else is kept at arm’s length. Here is one telling example of the favoritism.

In 1993, senior staffers at the DNR laid down the welcome mat to a group of oil and gas industry executives and privately negotiated a lucrative drilling subsidy without the knowledge of the Natural Resources Commission, the Legislature, or the public. The "sweetheart deal," which took just a few months to complete, resulted in a $12 to $20 million drain on state revenues that would have gone to protecting natural resources. The full extent of the loss is now being investigated by independent auditors.

In contrast, the doors to Lansing’s regulatory agencies are being symbolically locked to the public. Last December, in a case involving drilling in the Jordan Valley, a DEQ administrative law judge dismissed citizens’ efforts to intervene. The judge, an Engler Administration appointee, ruled that the public had no right to testify in a public hearing involving public lands.

This is more than business as usual. Piece by piece, the Engler Administration has transformed state government. Here is how:

  • By executive order, the Governor in 1991 eliminated a number of citizen oversight committees that participated in managing the state’s program for public health and environmental protection.
  • Also by executive order that year, the Governor sharply diminished the Natural Resources Commission’s independence and authority in its oversight of the DNR.
  • In 1994, the Governor’s Office ordered state agencies to disregard a requirement for the legislature to review new regulations. Several lawsuits challenging this action now are pending in the Michigan courts.
  • In September 1995, the Governor negotiated a settlement in a ‘takings’ case involving oil and gas drilling in the Nordhouse Dunes Wilderness that resulted in a $94 million tax-funded payoff to one of the state’s richest oil companies.
  • In October 1995, the Governor split the DNR in half, establishing the Department of Environmental Quality, and naming as its director a strident anti-regulation advocate.
  • At the Governor’s urging, the Legislature in 1996 amended the state Freedom of Information Act to prevent disclosure of certain public documents. Now it is much more difficult for the public to gain access to information about state regulatory decisions.

The ramifications of such policy making are profound.

In Sanilac County, the DEQ is supporting a mining company’s application to strip peat from a virgin bog that is one of the most unique wetland environments in the nation. The U.S. Environmental Protection Agency opposed the plan because it would violate the federal Clean Water Act.

In Grawn, just south of Traverse City, the anti-regulatory attitude at the DEQ contributed to a public health hazard and environmental and financial debacle.

In late 1995, officials in this rural community called the DEQ with their concerns that a large and poorly-managed tire dump near an elementary school and subdivision was causing pollution and might catch fire. DEQ pollution control agents investigated but found no violations.

Shortly afterwards, the dump erupted into an unstoppable fire that burned for weeks. Huge clouds of black smoke churned into the air. Dense and oily soot rained down on houses and yards. Families had to flee their homes, and one 12-year-old girl was hospitalized with a severe asthma attack.

Extinguishing the fire and cleaning up afterwards cost $1 million. A bill passed the Legislature to compensate the Township and Grand Traverse County for their $100,000 portion of the cost, but it was vetoed by the Governor.

It will take effective research and telling facts to dull the cutting edge that the Governor’s office is brandishing. The evidence that people are being hurt and that the land is deteriorating is now becoming more visible across Michigan. There is no doubt that citizens will once again call for safeguards that are based on sound economic goals, fairness, and shared civic responsibility.

A version of this article was published by the Detroit Free Press on April 28, 1997.

Michigan Land Use Institute

148 E. Front Street, Suite 301
Traverse City, MI 49684-5725
p (231) 941-6584 
e comments@mlui.org