Energy policy by constitutional amendment debated

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by Dmitri Barvinok

Voters will determine this November if Michigan will be the first to insert a clean energy requirement into its state constitution.

If approved, Proposal 3 will mandate that 25 percent of electricity sold in Michigan comes from renewable energy by the year 2025. The initiative’s nickname is 25 by 25.

It is one of six proposals on this fall’s Michigan ballot, and among the five that aim to amend the state constitution. That constitutional mechanism to require such the energy provision is as controversial as the proposal itself.

The state’s constitution has been amended by ballot seventeen times. Those amendments include the definition of marriage, guidelines for affirmative action programs, rules for human embryo and stem cell research, limits on how long members of Congress can serve and a rule preventing the increase of property taxes without direct voter approval.

But some critics say energy policy doesn’t belong in the constitution.

It is a bad idea because it is difficult to change and adapt it to newer technologies, said Michigan Rep. Ken Horn, R-Frankenmuth, who chairs the House Energy and Technology Committee.

Proposal 3 defines renewable energy as electricity from wind, solar, hydropower or biofuel. Other potential sources include geothermal, methane gas from landfills and the incineration of trash. Michigan and Illinois would be the only states to count electricity exclusively from the sources listed in Proposal 3 towards their requirements.

Once in the constitution, that definition would be difficult to change and the lack of flexibility worries critics.  If new technology ended up being cheaper than any of the four methods listed in the constitution, electricity it produces wouldn’t count towards the 25 percent.

Horn supported legislation in 2008 that required 10 percent of electricity sold in Michigan by 2015 to come from green energy.

“My opposition to the 25 percent in this ballot proposal is because I don’t believe that this energy policy should be engraved into the granite of our constitution,” he said.

But it’s that very difficulty of changing a constitutional amendment that appeals to some supporters of Proposal 3.

Getting the 10 percent renewables by 2015 mandate through the legislature was difficult, said Jim Dulzo, a senior energy

Wind is one example of the growing alternative energy sector in Michigan.

policy specialist at the Michigan Land Use Institute, a non-profit group that works toward a stronger economy through green energy.

“There are now people in the state House and Senate that are actually trying to repeal it, along with its efficiency requirements,” Dulzo said. Big issues like energy policy are popular to debate, but action is rarely taken.

“These things can, and do, quickly become political footballs, especially if they involve money and large companies,” he said, “and this allows people to truly decide, once and for all, and remove the football from the stadium.”

To change an amendment further would require another petition drive or a two-thirds lawmaker vote, something that doesn’t happen often.

“What is more basic to our economic success than energy policy?” Dulzo said. “That’s an entirely appropriate thing to build into our state’s DNA.”

Other Great Lakes states have similar energy requirements, but none of them are tied to their constitution. Ohio, Minnesota and Illinois all have a 25 percent by 2025 requirement, but they are required by law.

Energy policy belongs in a statute, according to Ken Sikkema, a senior policy fellow at Public Sector Consultants and a veteran of multiple terms in both the Michigan House and Senate. If new technologies emerge, statutes can account for changing technology, since they are far easier to change than the constitution.

One example Sikkema gives is Colorado’s renewable energy standard, which was also enacted through a ballot initiative, but not enshrined in the constitution. Colorado’s standard has already been amended twice.

The problem with a statutory initiative is that much more detail would have to be included in the proposal, because it couldn’t leave actual implementation to the legislature, like an amendment can, said Hugh McDiarmid, the communications director at the Michigan Environmental Council, a coalition of more than 70 organizations that advocate for environmentally friendly public policies.

Michigan residents will head to the polls in November to decide the fate of Proposal 3. Photo: theocean (flickr)

Michigan is already on track to meeting the renewable energy requirement set out in 2008 by the legislature, according to McDiarmid.

Michigan citizens can determine the merits of including a 25 percent clean electricity requirement for themselves, McDiarmid said. Voters have rejected 39 proposed amendments on a variety of issues in the past.

“Amending the Constitution will demonstrate our commitment to clean energy and encourage renewable energy businesses to make long-term investments in Michigan,” he said.

Every 16 years, the people of Michigan vote on whether their constitution needs to be re-written, making it a living document, meant to reflect contemporary values, McDiarmid wrote in an email.

But in a video opposing the measure, Michigan Gov. Rick Snyder says that the proper time to re-evaluate an energy policy is in 2015, once it has been determined if Michigan met the 10 percent by 2015 requirement.

“We shouldn’t put something in our constitution in a fashion like this, particularly when we lack a national energy policy,” Snyder said, “If we don’t know what the federal government is going to do, do we want to have our hands tied by what we’ve done in our constitution rather than making good calls and judgments as time passes?”

Waiting for the legislature to act is not a good option, McDiarmid said. Utilities need to decide whether to close or upgrade coal plants soon, and they cannot wait until 2015.


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