Michigan lawmaker relies on UK to dig up documentation
On May 12, 2008, then-Lt. Gov. John Cherry inked his name on the “Partnership on Global Climate Change Action,” a formal agreement between the state of Michigan and the United Kingdom.
The agreement, touted as a “memo of understanding” pledged that the state and the U.K. would “work jointly to reduce emissions of greenhouse gases and increase climate-friendly commerce.”
It’s no secret that then-Gov. Jennifer Granholm ranked climate change and the management of greenhouse gas emissions high on her priority list. During her second term in office, Granholm ordered the formation of the Michigan Climate Action Council to come up with state-level environmental policy recommendations called the Michigan Climate Action Plan. One would think an international agreement to purportedly address some of the very environmental issues Granholm cares about and that spans the Atlantic Ocean, would have not only garnered more media attention but be readily available to the public for review.
Neither was the case.
The scant news coverage of this agreement says little more than that Cherry “met in Detroit” with “the Right Honorable Hilary Benn, the United Kingdom's Secretary of State for Environment, Food, and Rural Affairs” to sign this memo of understanding on behalf of Gov. Jennifer Granholm, who was recovering from surgery.
A state lawmaker began looking into the general usage of “memos of understanding” and “memos of agreement” during the Granholm administration. Rep. Paul Opsommer, R-DeWitt, says he first inquired about any public record of this “Partnership on Global Climate Change,” but such a record apparently did not exist.
“Because these kinds of memorandums can sometimes carry the full force of law, I thought there would be a way to look them up online like you can for bills or executive orders,” Opsommer tells the Mackinac Center. “What I learned, however, was that no such mandated record keeping or central repository for them existed, and I was never able to get a copy directly from the administration.”
After Granholm left office, Opsommer renewed his efforts through the former governor's archives. He enlisted the help of the Legislative Service Bureau (LSB) which conducts research for legislators and their staff. The LSB inquired of the University of Michigan Bentley Historical Library and the Library of Michigan, both storehouses of archived gubernatorial material, but had no luck.
After exhausting all options in Michigan and despite the fact that the agreement was reportedly signed in Detroit, Opsommer reached across the pond and asked the United Kingdom for a copy of the agreement. An employee with the U.K.’s Department of Energy and Climate Change responded swiftly with a copy of the entire document.
Aside from the appearance of an international treaty being formed between the state of Michigan and the United Kingdom, Opsommer says the fact that even a state representative could not get this agreement from any source in Michigan and had to rely on the generosity and adequate record-keeping of a foreign government, shows the need for a big change.
“When I was stonewalled last session I introduced a bill to make sure these agreements were legally vetted and made publicly accessible, but the leadership at that time did not see it as a high priority,” said Opsommer. He added that as an elected representative, it’s his duty to inspect these types of agreements. “And if I can't review them, what chance does the general public have? I'm not even sure if a FOIA (Freedom of Information Act request) at this point would have worked if no one here in the state could find it.”
As for the implications of such an “agreement” between a state and foreign nation, it is unclear how much legal water this “memo of understanding” actually holds. The 66-page Legislative Service Bureau report commissioned by Rep. Opsommer suggests many “memos of understanding” and “memos of agreement” are recognized as legally binding documents even though there seems to be no statutory basis which allows this:
“… weeks of research, including, among others, a painstaking review of legal periodicals going back to 1950, searches on a host of legal and scholarly electronic databases, and a search of a number of legal encyclopedias on contract law, administrative law and legal drafting failed to find any mention of memorandum of understanding or memorandum of agreement, or related agreements. In practice, however, they appear to be a proliferating, but generally amorphous method of making assignments, establishing procedures and protocols, and outlining jurisdictional operations between and among governmental and other organizations.”
One other note about this document is the signature. Lt. Gov. Cherry and a “top British official” reportedly signed it in Detroit, according to the official record. However, the agreement does not have the signature of the British Official:
Opsommer said other states are formally withdrawing from some of these compacts and perhaps Michigan should consider doing the same.
“The reason I continued to pursue this was because I wanted to see if we needed to re-evaluate what we had signed with the U.K.,” he notes. “If they never actually signed it, it may end up being just an expensive moot point considering all of the staff time expended trying to get to the bottom of it.”
In the meantime, Opsommer has re-introduced legislation to more closely scrutinize these sorts of agreements before they reach the signature stage. House Bill 4116 would require the attorney general to approve “any memorandum of understanding, agreement, compact or similar binding agreement” with other states or the federal government. The measure also requires the attorney general to keep a website of all such agreements, including the ones that were not approved and reasons for rejection.
As for the “Global Climate Change” partnership between Michigan and the United Kingdom, Opsommer said it’s not a cup of tea the state should be sipping from in the first place.
“After finally being able to read the agreement,” he said, “I don't think it carries significant legal weight, but I will consult with the Snyder administration before putting it to rest.”
For a copy of the agreement as provided by the United Kingdom, click here.