The drawback of lame duck sessions

When one works at an unreasonably rapid pace, the quality of the results can sometimes suffer — and the Michigan legislation which created the Mackinac Straits Corridor Authority looks to offer an example of this.

The corridor authority was established to provide oversight for a new utility tunnel project beneath the Straits of Mackinac, which, in part, would provide an enclosed replacement for the Straits segment of Enbridge Energy’s Line 5 petroleum pipeline — an aging structure which has sparked concerns about the potential for spillage into the Great Lakes.

The legislation creating the new body was passed in late 2018 — amid the Republican-led Michigan Legislature’s frantic lame duck session — and signed into law by Gov. Rick Snyder in his waning weeks in office. The new authority board soon met and entering initial agreements with Enbridge.

When current Gov. Gretchen Whitmer — who had called for Line 5’s decommissioning during the 2018 campaign, and opposed compromises such as a tunnel — took office in January, she promptly asked a fellow incoming Democratic officeholder, Attorney General Dana Nessel, to review the legislative framework for the corridor authority. In an opinion issued in March, Nessel concluded that the law which formed the new body was unconstitutional, as it violates the “Title-Object Clause” of the Michigan Constitution.

When introduced in November, the bill originated in the Senate as an amendment to the Mackinac Bridge Authority charter. In those initial drafts, the bill would have handed the ownership of the tunnel to the Mackinac Bridge Authority. But, that set up proved unpopular among environmental activists and members of the Bridge Authority itself, so legislators altered the language to create a complete separate authority.

According to Nessel’s opinion, that switch was one of the main factors that made the law unconstitutional.

Nessel argued that by amending the language of the bill to create a separate Straits Corridor Authority, the bill no longer accurately represented the purpose of the bill as expressed in its title. On the same day Nessel issued her opinion, Whitmer ordered state agencies to halt tasks toward the tunnel.

As of mid-April, the next steps associated with the Straits pipeline crossing remained uncertain.

Michigan Senate Majority Leader Mike Shirkey, R-Clarklake, told Bridge Magazine the Senate would see that the corridor authority has the resources needed to make a case for its existence in court. Soon after, though, Mike Nystrom, who served as the authority’s chairman, told Bridge his understanding was that Whitmer’s decision essentially abolished the authority — and thus the body would face a challenge in making a case for itself. Nystrom said pipeline owner Enbridge looked to be in more of a position to challenge the governor’s tunnel decision. Enbridge was weighing its next steps as of early April, a company spokesman told Bridge, adding that the company intended to work with Whitmer’s administration on a path forward.

When considering the corridor authority bill’s path into law, it’s not surprising that the document proved vulnerable to a challenge on its syntax, one that brings the pipeline crossing’s future back into uncertainty.

The legislation’s approval, the tunnel board’s creation and its entry into agreements with Enbridge all transpired in a matter of days — amid lame duck efforts by the Republican-controlled legislature to fast-track a wide assortment of partisan policy proposals while a potentially friendly governor remained available to sign them into law. When it came to the Straits tunnel bill in particular, Democrats and environmentalists raised complaints of the limited vetting the legislation and its language received as it made its way through the process.

We’d say poor vetting of legislation is endemic to the type of lame duck legislative session which Michigan has seen in recent years. As lawmakers scurry to ram through base-pleasing proposals, concepts such as transparency and well-informed analysis can easily suffer. We see this as a troubling approach regardless of which party’s legislators are steering the process.

As policymakers sort out a long-term alternative to the current Line 5 setup at the Straits, there’s a tremendous freshwater resource at stake. The frenzy of lame duck hardly seems a conducive environment for contemplating this, and we’d say the Strait’s corridor authority’s fate offers a prime example of why the Legislature should do away with lame duck sessions, at least in their current form.

As we’ve said before, Michigan would be well-served if policymakers pursue any of three possibilities for the lame duck phase of the legislative year:

1) Move up the swearing in of newly election politicians to the day after the November election results are certified. This would greatly limit lame duck maneuvers driven by petty partisanship.

2) Following a November election, forbid the state legislature from meeting, except in cases of emergency.

3) Following a November election, allow the legislature to meet, but only in “caretaking mode.” This means they can only do business that would keep the government running — such as paying bills — for the next government to take over. During this time, no new bills may be introduced or voted on.

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