Michigan law grants the executive branch emergency powers to deal with the threat of animal diseases. While these powers reside in the Animal Industry Act of 1988, they apply to all animals, not just livestock used in food production or other industries.[*] The statute enables the governor to assume emergency powers if the director of the state agriculture department recommends it. In addition, the director may issue his or her own emergency orders about animal-related threats to public safety. Lawmakers added these powers to the act in 2019.[91]
The state agriculture director can trigger this emergency if he or she “determines that a disease or condition in animals in this state poses an extraordinary emergency to the animal industry, public health, or human food chain” in Michigan.[92] “Disease” is defined as “any animal health condition with potential for economic impact, public or animal health concerns, or food safety concerns.”[93] This broad trigger offers significant latitude to the director to claim authority for initiating unilateral action.
Once an emergency is declared, the governor may “expedite necessary procedures to control the spread of, or to eradicate, the disease or condition.”[94] That is the extent of the statute’s scope of authority. What actions could qualify as “necessary procedures” is not defined, leaving the decision entirely to the governor. As highlighted previously, the EPGA used similar language, which the Michigan Supreme Court found insufficient as a safeguard. The statute also lacks a durational limit on the governor’s grant of unilateral authority.
The powers the director of the agricultural department possesses to issue emergency orders in case of animal diseases are similarly wide-ranging. The trigger is broad, enabling the director to issue and enforce an emergency order whenever he or she determines that an “animal disease or condition in animals will cause a significant impact on animals, the animal industry, or public health.”[95] The order must be “scientifically based” and “specific” and must “consider the impact on animals and product movement.” But these terms are not defined, and no other language in the law defines the scope of authority.
Unlike the governor’s power, however, a director’s emergency orders have a durational limit and must follow some procedural requirements. Emergency powers may not last longer than six months, and the director must notify the relevant animal industry within 72 hours of issuing emergency orders. If the emergency has “a significant impact on public health,” the director must consult with the state health department.[96]
The agriculture department also may assume emergency powers through the Insect Pests and Plant Diseases Act of 1945. These powers are not as broad and include several procedural safeguards. The scope of authority is also limited — to entering premises, examining potentially harmful insects or plants with infectious diseases and exterminating them.
What might trigger this unilateral action is poorly defined, however. The statute authorizes emergency action when the director becomes aware that “any dangerous insects or infectious diseases exist or are supposed to exist within this state.”[97] If they do exist, the director must notify affected property owners. If they cannot be reached, the department must post notices in conspicuous places and notify nearby landowners. The department must issue these notices 15 days before it starts to remove the pests or diseased plants. Landowners who disagree with the department’s decision may appeal to the department within 10 days, but the director has the final say.[98]
The statute implies that these notices should contain an order for property owners to remove the plants that are infected or harbor harmful pests. It states that if they refuse to “carry out the orders [of the department] within the period stated in the notice,” then the department must “employ such aid as may be necessary to carry out” the orders.[99] Presumably, this means the department may remove the plants itself.
[*] The statute defines “animal” as “mollusks, crustaceans, and vertebrates other than human beings including, but not limited to, livestock, exotic animals, aquaculture species, and domestic animals.” MCL § 287.703(b).