The state department of environmental quality — now called the Michigan Department of Environment, Great Lakes, and Energy — regulates city water departments and other entities that supply drinking water. Its authority comes from the Safe Drinking Water Act of 1976, which charges the department with supervising and controlling public water supplies. Under it, the department has the power to enter the premises of and inspect a supplier of water and order changes to its system of operation.[100] A supplier may request a hearing within 30 days and challenge the department’s orders, but it must comply with the department’s final decision.[101]
The act also empowers the department to, without notice, issue emergency orders that are not subject to a hearing.[*] It may exercise this power if it determines that “a public water supply poses an imminent hazard to the public health.”[102] The orders may “requir[e] such action as the department determines is necessary to protect the public health.”[103] Orders persist until the department rescinds them — there is no durational limit.[†]
While these orders impact only public water suppliers, large populations can depend on a single water supplier. For instance, if the department errs and its orders degrade the quality of the water in an area, it could impact thousands of people. Michiganders know this risk well, having witnessed the regulatory failures that contributed to the Flint water crisis.
Errors of this kind are, thankfully, rare, but there are other concerns with the language of this statute. Its trigger and scope of authority are deficient, lacking specificity. An “imminent hazard” is defined as a condition that “in the judgment of the [department’s] director … require[s] immediate action to prevent endangering the health of people.”[104] This offers broad discretion to the director. Similarly, the actions the department may take are not defined or limited in any way.[105] How long these orders may persist is also unaddressed.
Another emergency power law concerns a similar threat and suffers from similar deficiencies. The Adulterated Products Act of 1988 permits the governor to declare a public health emergency in case “any food or beverage that is consumed by humans” or “any medicine … consumed or used by humans” has been “adulterated.”[106] The statute uses the definition of “adulterated” contained in a separate act, the Food Law of 2000. Products can be adulterated for at least 14 different reasons, such as containing a “substance that may render it injurious to health,” consisting of “diseased, contaminated, filthy, putrid or decomposed substance,” having been “produced, prepared, packed, or held under unsanitary conditions,” or simply being “otherwise unfit for food.”[107] Although this creates wide discretion for a governor to declare a product adulterated, it is does not appear that any governor has ever used this power.[‡]
Governors may trigger an emergency declaration when they have “a reasonable basis to believe that a consumer product has been adulterated and presents a threat to public safety and health.”[108] The type of evidence that could be used to inform a governor’s belief is not specified, providing them broad discretion.
The scope of authority for this statute is better than it is for the Safe Drinking Water Act, but it is still wide-ranging. The statute lists three actions that governors may take: forbid the sale of the product, require retailers to remove it from public display, or require them to hand the product over to state officials.[109]
The statute authorizes a fourth, troubling action. Governors may order “any other limitations, controls, or prohibitions considered necessary … regarding the manufacture, importation, sale or transportation of the consumer product.”[110] This language is so broad it renders the enumerated actions needless. Governors may use this catch-all to unilaterally do virtually anything they deem necessary.
The statute does include a durational limit on how long governors may possess emergency powers. The initial emergency declaration cannot last longer than 60 days, and the governor may unilaterally extend it only once. The extension cannot last for more than 30 days. A declaration could persist longer, however, if the Legislature, by majority approval in both chambers, passes a resolution to renew and continue the state of emergency.[111] This provides a check on the governor’s unilateral authority, but still leaves open the possibility that these emergency powers could last indefinitely.
[*] The statute suggests that the “normal administrative procedures” required in the APA must “proceed concurrently” when, after the department issues an emergency order, an entity that supplies water to the public makes an appeal within 15 days. It is not clear from the statute which specific APA requirements must be followed, however. MCL § 325.1015(3).
[†] The statute also states that orders may be rescinded by a court. Presumably this means the statute envisions these orders facing a legal challenge from a public water supplier. MCL § 325.1015(3).
[‡] The state failed to produce any records of its use when asked, and a search of past editions of digitized Michigan newspapers available online through Newspapers.com returns no stories of governors using this power.