For the second time in the past year, Michigan’s governor and attorney general — both Republicans — are at odds over legal challenges against federal rules aimed at cutting pollution from U.S. power plants.

On Friday, Attorney General Bill Schuette filed a petition with the U.S. Court of Appeals to review the U.S. Environmental Protection Agency’s cost calculations for limiting mercury pollution from power plants. Schuette is leading 14 other states in an ongoing challenge to the EPA’s Mercury and Air Toxics Standards, which courts have not blocked the federal agency from implementing.

But instead of filing on behalf of the “State of Michigan,” as was previously the case, Schuette’s latest petition is done so under his name and “on behalf of the people of Michigan.”

For clean energy supporters, it’s a distinction with a major difference.

“We commend Gov. Snyder for stepping up and disassociating himself and the state of Michigan from the attorney general’s endless litigation challenging mercury pollution reduction standards,” said Howard Learner, executive director of the Chicago-based Environmental Law and Policy Center. “Unfortunately, Attorney General Schuette is still continuing his ideological litigation that would allow more mercury pollution to continue harming children’s health and our environment.”

Schuette and Snyder have also been at odds in the past year over the federal Clean Power Plan, which seeks to reduce carbon emissions from existing power plants by 32 percent by 2030.

In September, the Snyder administration announced that it was developing a state-level compliance strategy for the Clean Power Plan. A month before the announcement, though, Schuette had joined other states in a lawsuit challenging the federal rules. A Snyder administration official said at the time that Schuette was acting “in an individual capacity” in joining the challenge.

Also, in emails released earlier this year by the Snyder administration related to the Flint water crisis (which has also found Schuette and Snyder at odds), officials said in an internal memo that the state was already on its way to complying with the Clean Power Plan based on Michigan’s clean energy standards.

“That will … make things awkward for the injunction request Schuette is pursuing on the basis that we have to do so much out of the gate we need the court to stop this now,” the email shows.

The state has since suspended its compliance planning after the U.S. Supreme Court in February halted implementation of the Clean Power Plan while legal challenges are settled.

No ‘practical implications’ in challenge

Learner, who asked Snyder and Schuette in March to withdraw Michigan’s challenge to the mercury standards, said Schuette’s ongoing litigation to the rules is “all the more baffling” because Michigan’s two major utilities — DTE Energy and Consumers Energy — “have already installed modern pollution control equipment on their coal plants that will enable them to comply with the new federal standards.”

“Why in the world would Michigan Attorney General Bill Schuette continue litigation that ultimately is protecting out-of-state coal plants and enabling them to produce more mercury pollution that contaminates Michigan’s waters and the Great Lakes?” Learner added.

A Snyder spokesperson said Michigan already complies with state-level mercury regulations even if the EPA’s rules didn’t take effect.

“The governor doesn’t see any practical implications for Michigan even if the latest challenge prevails, as we already comply with MATS as mandated by state law,” Snyder press secretary Anna Heaton said in an email.

She said the governor’s position in relation to the attorney general on mercury rules “is a similar situation to the Clean Power Plan appeal.”

Moreover, a source told Midwest Energy News that the “State of Michigan” was a party in an earlier filing against the mercury rules only because Schuette had appealed without first consulting with the governor.

In an email, Schuette’s press secretary Andrea Bitely said of the latest mercury petition: “This is about making sure the EPA measures cost and benefits related to their regulations. The Court ruled once already that the EPA failed to do so, this is about government overreach and making sure that ratepayers and business owners aren’t harmed by overreaching government regulations.”

The EPA adopted the mercury rules for coal plants in 2013, which were upheld by a federal circuit court in April 2014. After an appeal, the U.S. Supreme Court in June 2015 reversed the lower court’s ruling, saying narrowly that the EPA had to revisit the standards and give more consideration to costs. The Supreme Court, however, did not invalidate the rules.


Andy compiles the Midwest Energy News digest and was a journalism fellow for Midwest Energy News from 2014-2020. He is managing editor of MiBiz in Grand Rapids, Michigan, and was formerly a reporter and editor at City Pulse, Lansing’s alternative newsweekly.