The Natural Resources and Environmental Protection Act of 1994 is one the state’s most wide-ranging laws. It contains hundreds of sections, covering topics such as endangered species, wetlands, beach erosion, waste management and pesticide control. It also provides seven emergency powers to state officials that are properly limited in their scope.
Dam safety is the subject of one emergency powers law. The department of natural resources may “order an owner to immediately repair, draw down, breach, or cease operation of a dam.” This is a limited and precise scope of authority. The trigger is less specific, but it only pertains to a dam that is “in imminent danger of failure and is causing or threatening to cause harm to public health, safety, welfare, property or the public trust in those natural resources.”[*] If a dam owner fails to comply with this order, the department may take action to “alleviate the danger” and may charge the owner for the costs of doing so.[119]
The law leaves it to state officials to determine when a dam-related emergency ends. But it has a procedural restriction: The department must provide a hearing to the affected dam owner within 15 days of issuing the emergency order.[120] The department has the final say about whether the orders will continue, be modified or end.
The NREPA regulates nonnative organisms and prohibits people from possessing certain species.[121] It outlines a process for the state’s natural resources department to modify this list of prohibited species.[122] But the department may also use an emergency order to skip this process and immediate designate an organism a prohibited species, making its possession a violation of state law.[123] The department must publicize these emergency orders, which may last for a maximum of 90 days.[124]
A handful of emergency powers in the NREPA address industrial mining. They use similar triggers, referring to dangers and threats to public health or the environment. The state environmental department may issue emergency orders to require operations that mine for metals — copper, iron ore and nonferrous metallic minerals — to suspend their activity, a concise scope of authority.[125] These orders have strict durational limits of only 10 to 30 days.[†]
The environmental department has somewhat broader powers when it comes to coal mining. Officials may enter private lands and “restore, reclaim, abate, control or prevent adverse effects of coal mining” if there is an emergency.[126] No durational limit appears in the law, but the department may only take this action if no one else, including the landowner, mine owner or other unit of government, is addressing the situation.[127] A further procedural constraint is that the department must obtain a warrant from a court before entering the property.[128] These rules provide proper guardrails on the use of this power.
Finally, the NREPA also controls outdoor recreational activity in Michigan, including boating. Under this section of law, state bureaucrats may use emergency powers to unilaterally “establish a temporary reduced maximum vessel speed limit.”[129] There are several limits and procedural requirements on this power, however. The state cannot act unless it is petitioned by a county or municipality; it cannot prohibit the use of boats; it must place buoys in the waters to notify vessels; and it must post the limits and maximum fine amount on its website.[‡] These emergency speed limits can only be in effect from Sept. 1 to June 20, may not last for more than 14 days, and may only be reissued once per calendar year.[130]
[*] MCL § 324.31521(1). Although not labeled an emergency order, one section of the NREPA appears to empower state bureaucrats to issue unilateral orders to dam owners to “limit dam operations.” This is permitted for similar reasons the emergency orders are allowed: (“[w]here significant damage to the public health, safety, welfare, property, and natural resources or the public trust in those natural resources or damage to persons or property occurs or is anticipated to occur due to the operation of a dam”). State officials may also order the removal of a dam for similar reasons. How these powers differ from the emergency powers also contained in the statute is not clear from a plain reading. MCL § 324.31519(1)-(2).
[†] Emergency orders dealing with copper mining may last 10 days but then be extended for up to 30 days if the department conducts a hearing. MCL § 324.63417(3); MCL § 324.63506; MCL § 324.63221(4).
[‡] The maximum fines are established in statute: $100 for first offense and $500 for the second and subsequent offenses.MCL § 324.80146(a)-(d).