The Emergency Powers of the Governor Act (EPGA) (MCL 10.31 et seq.); MCL 10.32 & 10.33; Exclusive emergency powers granted to the governor; Walsh v. City of River Rouge; The Emergency Management Act (EMA) (MCL 30.401 et seq.); MCL 30.403; MCL 30.417(d); The Separation of Powers Clause; Const. 1963, art. 3, § 2; The nondelegation doctrine; Taylor v. SmithKline Beecham Corp.; Makowski v. Governor; Blue Cross & Blue Shield of MI v. Milliken; The “standards test”; Westervelt v. Natural Res. Comm’n; Department of Natural Res. v. Seaman; Presumption a statute is constitutional; In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38; Moot issues; City of Jackson v. Thompson-McCully Co., LLC; Motion to intervene; MCR 2.209(B)(2); Failure to dispute the basis of a lower court’s ruling; Denhof v. Challa

The court held that Governor Whitmer’s declaration of a state of emergency, extension of it, and issuance of related executive orders fell within the scope of gubernatorial authority under the EPGA, and that the EPGA does not violate the Separation of Powers Clause. It also found no basis to reverse the Court of Claims’ denial of the cross-appellants’ motion to intervene. Thus, it affirmed the Court of Claims as to the issues necessary to resolve the appeal. The court concluded that under the plain and unambiguous language of the EPGA, “a governor has the authority to declare a statewide emergency and to promulgate reasonable orders, rules, and regulations during the pendency of the statewide emergency as deemed necessary by the governor, and which the governor can amend, modify, or rescind. Additionally, a declared statewide emergency only ends upon the governor’s declaration that the emergency no longer exists.” The court noted that “MCL 10.31 does not provide any active role for the Legislature during a public emergency, let alone the power to directly act as a check against a governor’s exercise of authority.” While the Legislature asserted that only the 1976 EMA applies to statewide emergencies, § 17 of the EMA “provides that the EMA ‘shall not be construed to . . . [l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being’” MCL 10.31 to 10.33. As to the separation of powers, the Michigan Supreme Court has recognized that the Separation of Powers Clause and the nondelegation doctrine do not prohibit the Legislature from obtaining the coordinate branches’ assistance. Applying the “standards test,” the court held that the “EPGA contains standards that are as reasonably precise as the subject matter—public emergencies—requires or permits, such that the Legislature, by enacting the EPGA, safely availed itself of the resources and expertise of the executive branch to assist in the execution of legislative policy.” Thus, there was no separation of powers violation. Under the EPGA’s standards, the governor’s orders must be “reasonable” and necessary to protect life or property, or to gain control of the emergency. “There was no excessive or improper delegation of power to the governor with the enactment of the EPGA.” Whether the Governor exceeded her powers under the EMA was moot.