Will Michigan Ever Have Clean Drinking Water?
A look into the state’s legislative struggles amidst the 3M lawsuit against Michigan’s PFAS water regulations
Hannah Allbery
Since 2014, Michigan residents, legislatures, and judges have been painfully aware that the state is infamous for the toxic, lead-polluted water that poisoned so many Flint residents.[1] In the wake of the Flint Water Crisis, state leaders recognized the need for better water regulation, so they began to search for solutions to ensure Michigan’s drinking water is safe.[2] However, a recent, successful challenge to legislation aimed to protect Michigan residents from PFAS creates concern that Michigan will still not be able to trust its water for many years to come.
While Michigan has been able to pass new regulations to increase water quality, financial realities can delay or block their implementation. For example, Michigan passed regulations that require cities to replace all their lead service lines, which are the pipes that connect the water main to a resident’s house.[3] However, the cost of this endeavor is so pricey that many cities have serious concerns about funding it without raising water prices, which would disproportionately burden marginalized communities.[4]
Economic implications appear to also drive large scale companies to fight against environmental regulations. While making environmental regulations financially feasible to communities is a large concern, it is challenges to the laws themselves that pose the greatest threat to protecting the environment and the public health.
A prime example of large scale companies fighting environmental regulations appeared recently in Michigan when 3M sued Michigan’s Department of Environment, Great Lakes and Energy (“EGLE”) over PFAS regulations.[5] PFAS is a harmful chemical that has infiltrated water systems and can pose a myriad of health concerns.[6] Part of Michigan’s initiative for clean drinking water has included the Michigan PFAS Action Response Team (MPART) to help address the issues with PFAS in drinking water.[7] In 2019, MPART, at the direction of Michigan Governor Whitmer, began compiling information on PFAS to guide EGLE’s rulemaking process in the hopes of creating scientifically driven solutions to PFAS issues in Michigan. [8]
Based on these scientific suggestions, EGLE created a body of rules to help protect Michiganders against PFAS in drinking water.[9] EGLE made sure to thoroughly examine public response to these rules through a long process of consulting an advisory committee, a rule review committee, and many public hearings.[10] EGLE also collected public comments on the matter. The distribution of sentiment in these public comments were 75.6% in support, 23.9% neutral, and 0.5% opposed, with 3M being one of the entities signaling opposition.[11]
EGLE succeeded in passing legislation that would require PFAS cleanup in Michigan. This legislation would require large polluting companies such as 3M to pay money in necessary PFAS cleanup measures. Instead of abiding with these environmentally and public health-based regulations, 3M filed a frantic lawsuit against EGLE. The suit alleged seven different complaints, but the latter four were quickly dismissed.[12] The remaining three claims proceeded.[13] 3M’s first remaining complaint asserted that the PFAS rules were not properly aligned with the Safe Drinking Water Act, which was EGLE’s authority to pass the regulation.[14] Second, they asserted that the PFAS rules were not rationally related to the protection of public health.[15] Third, they said that EGLE’s regulatory-impact statement did not contain all necessary information.[16]
The first two of the remaining claims were rightly dismissed, as there were obviously meritless attacks on legitimate legislation.[17] However, the judge found one sliver of merit amongst the slew of meritless claims 3M alleged in the third count. When passing legislation of the sort, a regulatory-impact statement is required, which must include “[a]n estimate of the actual statewide compliance costs of the proposed rule on businesses and other groups.”[18] If these requirements are not met, the entire rule is invalidated.[19]
Unfortunately, EGLE failed to specify groundwater cleanup and compliance costs in its report, which the Judge found to be necessary.[20] While the judge said that deference should be given to the legislature in cases like this, he did not find mercy for them in the end.[21] As a result, 3M was granted summary judgement for this third count.[22] Fortunately, the judge ruled that the legislation is to stay in place until the appeals process is finalized. And of course, EGLE Is currently in the process of appealing this decision.[23]
As it stands, this case reflects a troubling blow to Michigan’s quest for safe drinking water. There is still hope that EGLE could prevail in the appeals process, but there is no guarantee of a victory. If the PFAS rules ultimately fall, it could fuel companies to repeatedly harass all environmental legislation Michigan is able to pass in the hopes they can invalidate it on a technicality.
In his decision, as noted above, the presiding judge stated that deference needs to be given to legislatures when looking at the merits of passed legislation, but this did not happen in the case of 3M.[24] The overwhelming majority of 3M’s claims were clearly baseless, and it was painfully apparent that their qualms with the legislation was based on the fact that they did not want to take responsibility for the PFAS they have released into the environment. Even though EGLE took the time and resources to create rules the majority of residents supported, and these rules would benefit the public health, when faced with one small technicality, the legislature was not given deference.
Funding the implementation of environmental laws may be a large hurdle, but Michigan will not even be able to get to that stage if laws are broadly invalidated based on small technicalities. This calls for legislative reform, as well as ensuring progressive environmental laws are airtight. Even more, this calls for the support of the judiciary. When Michigan residents are in support of a legislation that was carefully built to protect them, the judiciary should do its part to protect these laws, so that they can consequently protect their state.
Hannah Allbery is a Junior Editor with MJEAL. Hannah can be reached at hallbery@umich.edu.
[1] See Brie D. Sherwin Pride and Prejudice and Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, and State Exceptionalism Failed in Flint, 88 U. Colo. L. Rev. 653, 663 (2017).
[2] See Taking Action on Flint Water, Michigan Gov, https://www.michigan.gov/flintwater (last visited Mar. 17, 2023).
[3] See Lead Service Line Replacement, Michigan Gov, https://www.michigan.gov/egle/about/featured/benton-harbor/lsl-replacement (last visited Mar. 17, 2023).
[4] Kelly House, Michigan cities must begin replacing lead pipes. But who has the cash?, Bridge Michigan,
https://www.bridgemi.com/michigan-environment-watch/michigan-cities-must-begin-replacing-lead-pipes-who-has-cash (last visited Mar. 17, 2023).
[5] https://aboutblaw.com/5YQ at 1.
[6] See Michigan PFAS Action Response Team (MPART), Michigan Gov, https://www.michigan.gov/pfasresponse (last visited Mar. 17, 2023).
[7] Id.
[8] Id.
[9] See PFAS Drinking Water Rules, Michigan Gov, https://www.michigan.gov/egle/about/organization/drinking-water-and-environmental-health/community-water-supply/pfas-drinking-water-rules (last visited Mar. 17, 2023).
[10] https://aboutblaw.com/5Zw, at 4-9.
[11] Id. at 9.
[12] https://aboutblaw.com/5YQ, at 1.
[13] Id.
[14] Id. at 13
[15] Id. at 16-17.
[16] Id. at 17.
[17] Id. at 20.
[18] Id. at 17.
[19] Id.
[20] Id. at 18.
[21] Id. at 19.
[22] Id. at 20.
[23] Keith Matheny, EGLE Appeals Judge’s Rejection of New PFAS Water Standards, Detroit Free Press, https://www.freep.com/story/news/local/michigan/2023/01/07/egle-appeal-pfas-drinking-water-regulations/69786203007/ (last visited Mar. 17, 2023).
[24] https://aboutblaw.com/5YQ, at 19.