Whether “preservation of the public health, safety, or welfare required promulgation” of emergency rules banning flavored nicotine vapor products promulgated by defendant-Department of Health & Human Services (DHHS) under MCL 24.248(1); Administrative Procedures Act (MCL 24.301 et seq.); Judicial review of administrative decisions; Const. 1963, art. 6, § 28; Michigan State AFL-CIO v. Secretary of State; Whether any deference should be given to agency fact-finding under MCL 24.248(1) & 264; Michigan Basic Prop. Ins. Ass’n v. Office of Fin. & Ins. Regulation; The separation of powers doctrine; Preliminary injunction; Likelihood of success on the merits; Irreparable harm; Thermatool Corp. v. Borzym; Basicomputer Corp. v. Scott (6th Cir.); Apex Tool Group, LLC v. Wessels (ED MI); Balancing harms; The public interest

In these consolidated cases as to banning flavored nicotine vapor products, the court held that defendants-DHHS and the Governor were entitled to due deference as “to the finding of an emergency under MCL 24.248(1), but not complete capitulation, and the Court of Claims ultimately did not abuse its discretion by issuing the preliminary injunction” based on the evidence presented. It concluded that the “likelihood of success on the merits, whether plaintiffs would suffer irreparable harm, and the balancing of the harms favored the action by the Court of Claims to issue the preliminary injunction, even if” the public interest factor did not. Thus, it held that the Court of Claims did not abuse its discretion in granting plaintiffs’ motions for a preliminary injunction, enjoining enforcement of emergency rules promulgated by the DHHS under MCL 24.248(1) that “prohibit the sale and distribution of flavored nicotine vapor products in Michigan.” Plaintiffs, who commercially sell vapor products now banned, filed declaratory judgment actions alleging that the emergency rules are invalid. The court first agreed “with defendants that a finding by a court that promulgation of emergency rules was not necessary to preserve the health, safety, or welfare of the public is not a finding that the emergency rules are procedurally invalid.” The court held that they “fully complied with the procedures for promulgating the emergency rules under MCL 24.248.” However, it “does not matter what moniker is used in describing an invalid rule; an invalid rule is an invalid rule.” Next, the court held “that agency fact-finding under MCL 24.248(1) related to determining whether the circumstances justify the promulgation of emergency rules is reviewable by a court.” It found that the question was whether any deference should be given to agency fact-finding. Noting that “the principle of giving due deference to an agency with regard to fact-finding because of its expertise” is well established, the court invoked the separation of powers doctrine to incorporate a due deference standard as to agency fact-finding under MCL 24.248 and MCL 24.264. Thus, “in the context of a declaratory judgment action, when a court reviews an agency’s decision, concurred in by the Governor, that the preservation of the public health, safety, or welfare requires the promulgation of emergency rules absent notice and participation procedures, MCL 24.248(1), the court must accord due deference to the agency’s expertise and not invade the agency’s fact-finding by displacing its choice between two reasonably differing views.” But giving due deference “does not equate to subservience or complete capitulation and allow a reviewing court under MCL 24.248 and MCL 24.264 to abdicate entirely its role in determining the validity of an emergency rule.” Affirmed.