News Story

Nessel: AG opinion premature, but MiLEAP constitutional on its face

Facial review does not preclude future action, Nessel writes

Attorney General Dana Nessel on Monday said it was premature to issue a legal opinion on whether a second Michigan education department is constitutional. But based on what Nessel knows now, she said, the department is constitutional on its face.

“As a result” of the order not yet taking effect, “the only review that can be conducted is a facial one, and such a review leads to a clear answer as to the constitutionality of the (executive order),” Nessel wrote.

Executive Order 2023-6, issued by Gov. Gretchen Whitmer on July 11, takes effect Dec. 1.

Read it for yourself: Executive Order 2023-6 

Nessel’s Aug. 28 letter was written to State Superintendent Michael Rice, in response to Rice’s request for an opinion. State officials can request attorney general’s opinions and use those opinions as the basis for policy. For instance, the Michigan Treasury moved forward with a 4.25% tax rate for 2024, rather than the 4.05% tax rate of 2023, because an attorney general’s opinion said the tax cut was event-driven, not permanent.

In this case, Nessel wrote a letter, not a legal opinion.

Earlier this month, the State Board of Education asked Rice to seek an attorney general’s opinion on the legality of the Michigan Department of Lifelong Education, Advancement and Potential. Whitmer created the department by executive order. The state board and state superintendent then sought what they dubbed “constitutional clarity” from Nessel.

But Nessel said it was “premature” to offer an opinion.

Nessel’s letter does not preclude future action. But it would have to be based on actual events. Citing a 1999 case, Straus v. Governor of Michigan, Nessel wrote:

The standard for finding an executive order unconstitutional on its face is a high one. Specifically, an executive order is unconstitutional on its face only when “no set of circumstances exists under which the executive order would be valid. The fact that the executive order might operate unconstitutionally, under some conceivable set of circumstances is insufficient.”

That paragraph ends with Nessel citing Whitmer’s executive order. Nessel referenced the shared vision”of MiLEAP and the Michigan Department of Education.

In the order, Gov. Gretchen Whitmer affirms the constitutional authority of the state board and says MiLEAP does not diminish it.

Only after implementation, with facts and policies on the record, could Nessel issue an attorney general’s opinion, she said.

“It is at that point, where a specific set of facts exists, that an opinion may be appropriate,” Nessel wrote.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.

MichiganVotes Bills

No, Michigan climate policy won’t improve the weather

Protecting the vulnerable means keeping their lights on

Michigan lawmakers proposed legislation in June that would impose green energy mandates and carbon-emission standards, claiming that addressing climate change is a moral imperative and necessary to protect society’s most vulnerable. But even if the proposed laws were effective at halting Michigan’s CO2 emissions, they would have no impact on the climate — and do great harm to vulnerable Michigan residents.

Michigan House Bill 4759 would expand the state’s renewable energy mandate in an effort to combat climate change. HB 4759 is part of a three-bill package, along with House bills 4760 and 4761. Among other things, these bills would “codify the governor’s MI Healthy Climate Plan, which was introduced in April of last year,” according to the primary sponsor of HB 4759, Rep. Betsy Coffia, D-Traverse City.

The bill package would also mandate the state move to a “carbon-free energy portfolio,” requiring 100% of the state’s energy to be supplied by sources like wind and solar by 2035.

The bills would have the real-world impact of promoting specific energy sources, rather than actually reducing CO2 emissions. That is because the bill package specifically excludes the use of carbon capture and storage, hydrogen and natural gas.

Although Rep. Laurie Pohutsky, D-Livonia, assured House Energy Committee members in June that the bill package could designate nuclear a type of clean energy, the text of House Bill 4759 specifically notes that, for the purposes of the legislation, renewable energy “does not include petroleum, nuclear fuel, natural gas, or coal, hydrogen, solid waste, biofuel, or ... biomass.”

Limiting reliable energy sources, like natural gas, nuclear, and biomass, will leave the state dependent on the vagaries of unreliable and intermittent gusts of wind and errant solar beams. This is hardly advisable. The United States has successfully reduced CO2 emissions — more than any other developed nation — primarily through switching from older, less efficient coal-fired plants to newer, more efficient natural gas units.

Supporters of the bill claim it is needed to address “an increasing level of climate impact,” which they believe is being felt across the state.

“Flooding, drought, fire and smoke” are “collectively causing climate havoc,” Coffia said in her spoken testimony supporting the bill package.

The ice storms that struck southern Michigan in February, taking out the power for more than 900,000 households, were labeled “a consequence of climate change” by Pohutsky during the same hearing.

But more knowledgeable sources have less confidence in Pohutsky’s weather theories.

“It remains very difficult to attribute any individual event to greenhouse gas-induced warming (even if physical reasoning or modal experiments suggest such an extreme may be more likely in a changed climate),” the United Nations Intergovernmental Panel on Climate Change wrote in its 2012 document, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation.

That finding has not substantially changed since.

“The recent IPCC assessment report is quite clear on the state of detection of trends and attribution” of specific storms to global warming, Roger Pielke, professor at the University of Colorado-Boulder, wrote in 2021, pointing to the report’s conclusion that “observational trends in tornadoes, hail, and lightning associated with severe convective storms are not robustly detected.”

Pielke also noted that the “attribution of certain classes of extreme weather (e.g., tornadoes) is beyond current modelling and theoretical capabilities.”

Climate scientists quoted by Smithsonian Magazine also recognized the tenuous nature of any direct link between weather and climate.

“The big challenge is that these kind of extreme events have always happened,” says climate scientist Ken Kunkel, who works with the North Carolina Institute for Climate Studies and the National Oceanic and Atmospheric Administration. “Can you say, ‘[a certain weather] event was caused by global warming?’ No.”

The pushback offered by House Republicans during the June hearing was warranted because the costs of the net-zero CO2 energy legislation are unquestionably high.

Coffia claimed that her bill required an “all of the above approach on a technology scale,” but in fact, it would outlaw Michigan’s most reliable energy sources.

Soon-to-be-released Mackinac Center modeling, completed with the Center for the American Experiment, reveals the cost of a renewables-based grid to be around $124.3 billion through 2035 and over $386 billion by 2050. Despite the costs, the clean energy plan would expose Michigan residents to as much as 61 hours at a time of cumulative blackouts during winter months.

If policymakers are dead set on lowering greenhouse gas emissions, nuclear power is the best technology to meet that goal while also maintaining reliable electricity services. Supporters of the legislation have not addressed the discrepancy between the bills’ exclusion of nuclear as a clean energy source and their publiic admissions that it produces no greenhouse gas emissions.

“The bill is very much a work in progress,” Pohutsky pointed out when pressed on the issue.

The legislation’s authors would do well to reconsider technologies such as carbon capture and sequestration, as well as nuclear. These technologies would allow the state to keep existing baseload (always-on) plants open and reduce the costs of the wind and solar plan by $90 billion to 2035 and $180 billion in 2050. At the same time, these reliable sources would prevent blackout events predicted under the wind and solar scenario.

If the goal of this statewide shift in energy generation is merely to slow climate change, lawmakers’ ambitions are sorely misplaced.

Recent modeling completed by the Texas Public Policy Foundation, using the Model for the Assessment of Greenhouse Gas Induced Climate Change, or MAGICC, showed that if the United States entirely phased out all fossil fuels by 2050, it would lower global temperatures in 2100 by 0.082° Celsius, an effectively unmeasurable amount.

Michigan accounted for about 3% of total U.S. carbon dioxide emissions in 2021, according to the Energy Information Agency.

That is to say: Even if Michigan cuts its emissions to zero, it will have almost no impact on the world.

“Addressing climate change and protecting society’s most vulnerable are moral imperatives,” Coffia said.

But the most effective way to address climate change is by adapting to it.

Protecting society’s most vulnerable means prioritizing their needs. Having affordable electricity and heating today is a far more immediate need than enacting legislation that might lower global temperatures by an undetectable amount in 80 years.

Ewan Hayes is Michigan Capitol Confidential intern.

Joshua Antonini is a research analyst in energy and environmental policy at the Mackinac Center. Email him at antonini@mackinac.org.

Jason Hayes is director of energy and environmental policy at the Mackinac Center. Email him at hayes@mackinac.org

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.