Whitmer on Energy: "I’m Not Being Overly Prescriptive"
Governor Gretchen Whitmer outlined two clear policy goals for this fall’s legislative session on energy: requiring utilities to generate 100 percent of their power from renewable sources and putting the Public Service Commission  in charge of siting authority for large-scale solar and wind facilities.

The details of those eventual bills, however, will come later. Whitmer, in her "What’s Next" address last Wednesday, did not delve into key details.

In an interview with Gongwer News Service about an hour before the speech, Whitmer said the details will come as the Legislature works on the legislation and during eventual talks with her office.

Majority Democrats in the Legislature began introducing energy legislation in the late spring to set a 100 percent renewable energy standard by 2035, among other issues. The standard, first begun in the late 2000s at 10 percent, now sits at 15 percent after the 2016 energy law rewrite.

Utilities have historically resisted a government-set requirement on renewable energy minimums. As Democrats have unfurled their proposals, spokespersons for Consumers Energy and DTE Energy have refrained from criticism but instead sought to pivot, noting that both intend to phase out carbon in the coming decades regardless.

In the interview, Whitmer was asked where she thought the state’s two largest utilities stood on the idea of state government requiring them to generate all their energy from renewable sources by a date certain.

"Well, we talk to the utilities all the time. They’ve been great partners," she said. "I can just say this. You know, Michigan has set aggressive standards over the years, and we’ve always exceeded them. We’ve gotten there faster than we ever thought. So, I think our experience is that if we put our mind to it, we work together, we’re going to be successful."

When the state first set a 10 percent standard and then bumped that up to 15 percent, in both cases, the utilities hit those marks before the required year.

Whitmer said she wanted to reach 100 percent carbon neutrality in 10-15 years.

"I’m not being overly prescriptive in terms of what a specific date looks like, in this speech, but I want people to know this is an important goal, and I want to work with stakeholders and the Legislature to make sure that Michigan is on the trajectory that we need to be," she said.

The utilities have come under heavy criticism over the repeated, large, sometimes long-lasting power outages following winter storms and severe weather. Nearly 500,000 lost power last week after seven tornadoes and straight-line winds up to 90 mph swept the state. An ice storm earlier this year, which devastated the Ann Arbor and Jackson areas, drew particularly scorching criticism over lengthy outages.

Whitmer, however, declined to criticize the utilities’ performance.

"Like our road infrastructure, our grid infrastructure is 100 years old," she said. "And we’re now dealing with climate change, disasters that are playing out every single day right now and Florida – hurricane. Canadian wildfires. We’ve had our share of challenges with being inundated with water. And so, the utilities I know are investing, the state of Michigan is investing, and we’ve got to push and challenge and encourage one another, but I think that they’re making some progress. But it’s very frustrating.

Whitmer noted the executive residence where she lives in Lansing lost power from the recent storms for several days.

Asked if she would consider herself someone who is angry at the utilities and thinks they must do better or believes the utilities are improving a difficult problem, Whitmer said: "They’re focused on the right things. We all want them to move faster."

Michigan law currently defines renewable energy as solar, wind, hydroelectric, biomass or waste to energy.

Whitmer said she wanted to make sure there is room in that definition for innovation, mentioning hydrogen.

"I know there’s a lot of debate about what quote unquote clean energy is," she said. "We know wind and solar is. I think everyone agrees on that. I would submit that when we look at some of the great things that we’re doing in hydrogen, there are a lot of different methodologies that are clean and sustainable, that we need to be building out. And that’s why the Legislature will hold hearings. I think we will negotiate, but I think ultimately the goal is to make sure that we don’t compromise ourselves and compromise the possibility that there are innovations that are going to happen on the horizon, that we can’t be too overly prescriptive."

While the 100 percent requirement has drawn attention, the question of moving siting authority away from local governments and to the PSC promises to be an enormous fight, and it’s a more immediate issue than phasing in an eventual renewable standard that the utilities say they already are working to meet.

The Michigan Townships Association opposes the idea.

Whitmer said the state needs to consolidate the decision-making process with the PSC instead of having it so spread out.

"It’s very challenging for investment when there are so many different layers and such a difficult process and so, putting permitting, all things energy in the public in the MPSC – they’ve got the expertise that ensures local voices are heard but also gives us the ability to move faster," she said. "And I think industry and business and individuals alike, have shared that they think there’s improvements to be had in our permitting, and we’ve made some improvements. I think this will be another big step toward a system that works better that helps us move faster but also protects local voices."

Open & Obvious Hazards Ruling Means Legal Sea Change for Businesses
A longstanding mechanism that prevented property and business owners from being sued if a visiting person is injured – and the hazard was open and obvious – was overturned this summer, and now attorneys and business leaders across Michigan are working to understand how that could affect their clients and colleagues.

The 5-2 decision from the Supreme Court issued in July for the consolidated Kandil-Elsayed v. F & E Oil, Incorporated, and Pinsky v. Kroger Company of Michigan (MSC Docket Nos. 162907 and 163430) overturned a key precedent from 2001, Lugo v. Ameritech, that made the open and obvious doctrine part of a property owner’s duty, meaning unless there was something making the situation particularly dangerous, the business owner would not be liable.

Chief Justice Elizabeth Clement, writing for the majority, held the Lugo case – one of several hallmark opinions of the Engler-era Supreme Court – was wrongly decided. Instead, statute, prior court precedents and other tort governance indicate that the open and obvious nature of a hazard should be considered in a comparative fault analysis.

That has essentially opened the door for more lawsuits that would have been thrown out in the summary judgment stage under the Lugo open and obvious standard to move forward.

In interviews with Gongwer News Service, attorneys who represent injured parties hailed the decision as a long time coming, agreeing that property owners and businesses should be doing more to ensure their properties are maintained and free of hazards, obvious or not.

Several added that it would give those parties their days in court and open injury complaints to deeper fact-finding proceedings, which could lead to victories at trial or swifter settlements. The caveat, however, is that the burden of proving premises liability claims may increase as greater scrutiny may be placed on the claims as they go through discovery and trials.

"Now, it’s going back to what we have in normal negligence cases, meaning that you have to prove that there was a dangerous condition and what percentage of fault is more of a comparative negligence," Debra Lujan, an attorney with Collins Einhorn Farrell and co-chair of the State Bar of Michigan’s negligence law section, said. "So, if the plaintiff could have seen it, you still have (a mechanism where) if they’re more than 50 percent at fault, they are eliminated from getting any non-economic damages, which means pain and suffering, loss of enjoyment and things. But in terms of economic damages, it’s going to reduce their damages by their own percentage of faults."

Plaintiffs, though, won’t see courts just kicking these cases out as they had before without discovery and without an opportunity to describe what they saw, what they didn’t see and what the conditions were when they were injured, Lujan added.

Todd Stearn, a personal injury attorney who also is a co-chair to the Bar’s negligence law section, agreed that the analysis of the open and obvious hazards doctrine needed an overhaul for some time, as it incentivized business owners to keep openly defective areas on their properties untouched because they were unlikely to get sued in the event of an injury.

"The Supreme Court, I think, recognized among other things that the law was just really unfair (and this ruling) is a dramatic change," Stearn said. "It was also very arbitrary. Before, one judge might find a defect to be open and obvious and another judge might not find the exact same defect to be open and obvious. You’d be getting very inequitable results based on the judge you had. This should clean that up."

Businesses and property owners are, on the other hand, bracing for the worst. Heads of two Michigan associations representing businesses large and small in interviews with Gongwer said they will now face legal and financial burdens to maintain grounds and fix hazards that were previously insulated from injury claims.

Those sources also said that the rulings bring an air of uncertainty for businesses as they struggle to bounce back from the pandemic, high costs and inflation on goods and services.

Brian Calley, president and CEO of the Small Business Association of Michigan, said uncertainty of future costs was "unquestionably true" in the wake of the ruling.

"Business and property owners have previously been assured that common sense plays a key role in liability exposure," Calley said. "Overturning the long standing open and obvious precedent turns that on its head. And it wipes out case law and decisions that were based on that precedent. This creates a lot of uncertainty."

Wendy Block, senior vice president of business advocacy with the Michigan Chamber of Commerce, said the businesses they represent have significant concerns.

"The Supreme Court’s ruling, which abolished 22 years of legal precedent pertaining to the doctrine, will result in a significant increase in slip and fall lawsuits. There’s no question about it," Block said. "It will impact businesses of all sizes and types across Michigan, and not only will the ruling increase property owners’ litigation exposure, it will increase the number of trials that we’re seeing across Michigan and could also cause property insurance costs to increase significantly."

At a time when businesses are still attempting to recover from losses during the pandemic and are worried about their bottom lines, the specter of a costly premises liability suit now hangs over their heads if their properties have open hazards that now need to be addressed, she said.

Block said that only time will tell if the ruling leads to more slam dunk injury lawsuits against affected businesses, but the mechanism they relied on to filter out frivolous suits has now been obliterated by the court.

Prior to the ruling, Block said, the court has always held that if an average person with ordinary intelligence would have been able to discover a potentially dangerous condition, upon casual observation and avoided the same, the processor had no duty to warn or maintain, absent a special aspect of the potential danger.

"This idea of ice or snow, or a giant pothole or some other defect that an average person could see and subsequently avoid, now, all of those situations will be subject to litigation," she said. "And while the court seems to recognize that a property owner doesn’t necessarily need to immediately rectify hazards, the question really is about interpretation. Every jury across Michigan could decide this differently, and so there really is no new standard for the courts to look at and for juries to consider."

Different interpretations across court systems and jury pools, Block added, will make premises liability cases an evolving situation for years to come.

While the Chamber has been careful not to offer its members legal advice – instead advising them to seek legal counsel from their own attorneys – Block said the group was considering options on how to aid members with support.

Alerts were sent to business owners when the ruling came down explaining the decision and how businesses could be impacted. Those alerts included some tips on how to limit exposure to legal jeopardy.

Block said the Chamber is continuing to monitor the situation and offer help as it can. Calley said the same was the case with SBAM, which has provided briefings and articles on the decision and offered new things a business owner needs to think about.

"While we do not know how this decision will play out in future lawsuits, we do know that early dismissal of frivolous lawsuits will be much harder. That means small business costs will rise," Calley said. "Business owners who have guests, customers, vendors or contractors on their property need to look at risks with fresh eyes. Hazards or potential hazards, no matter how obvious and easily avoided, should be evaluated for actions such as modifications, repairs, barriers, or warning signage. Additionally, business owners should consult with their legal and insurance partners to ensure they are adequately protected."

While the probability of exposure to liability and lawsuits surviving the summary stage has potentially increased, Stearn said there won’t necessarily be more trials.

He sees the ruling playing out in a similar way to the no-fault auto insurance reforms and the court cases that followed.

"There was a period of time where serious impairment of body function was being determined by judges, and a lot of cases were getting dismissed. And then the Supreme Court and through some legislation kind of changed it so that series impairment is by and large now a question of fact for a jury," Stearn said. "There are not necessarily more trials, I don’t think, but there’s more ability to settle cases for plaintiffs without the cases being dismissed. I think it’s going to play out in a very similar way. I don’t think it’s necessarily going to lead to more trials, but I think it’s going to lead to more successful outcomes for plaintiffs."

Lujan also said that defendants in these matters will still have the same kinds of defenses that may have been ignored or passed over in favor of using the summary stage to dismiss cases early on through the open and obvious doctrine.

"Did they have notice of the dangerous condition? How long did they have notice? It kind of goes back to what’s reasonable, and whether they or should have known about the dangerous condition," she said, adding that plaintiffs will still have to prove that the condition was dangerous. "I just settled a case where … I said, ‘You’re right, open and obvious has gone away, but this isn’t a dangerous condition, this is an ordinary ADA approved floor plan or a regular step.’ Where I think you’re going to see a lot more cases survive are like snow and ice cases, or cases where there truly is a danger on the condition. Then, you know, it’s going to go back to the property owner to keep their property safe."

The standard might change based on the plaintiff and if they were an invitee or a licensed person, like a skilled worker, Lujan said, but now owners must be aware that they just can’t say a hazard was obvious and avoid liability.

"This, to me, is a fairer system for everybody in terms of what you look at, but you still have the same defenses you had before: the 50 percent rule, if somebody’s drunk, if somebody’s intoxicated, on drugs or something," she said. "You still have to look at more of the totality of the situation, as opposed to ‘was this condition objectively open and obvious? Therefore, I don’t have to fix it’ or ‘therefore, I don’t owe them a duty.’ It has definitely shifted, but there are still many defenses available to defendants."

As to the concerns of business and property owners and the groups that support them, Steran said if those organizations were interested in safety and protecting the public, they should have no problem with the change in calculus before the courts. He disagreed that the ruling would cost them more for repairs or property overhauls, because upfront investments mean they won’t have to defend cases or pay damages if found liable.

"Our laws in Michigan up until now were an outlier in the country. We had probably the most restrictive, the most difficult premises liability cases in the country, including Alaska. They had an easier time bringing a slip and fall case on snow and ice in Alaska than we did in Michigan," he said. "If those organizations are more interested in safety, making sure that people don’t have to encounter dangerous conditions, then they should have no problem with these laws at all. And property owners should be taking care of the properties. That’s just a fundamental truth."

Why Are We Spending So Much on Prison Health Care?
After the average per-prisoner cost of healthcare has grown by 34% in the last two decades, one researcher raises concern that the data isn’t available to demonstrate why the extra spending is occurring and what health outcomes it is producing. 

"There’s a lot of different theories about what is driving the cost . . . the cost of supplies and medicine and everything is just increasing across the board," said Karley Abramson, a health policy research associate for the Citizens Research Council (CRC) of Michigan. "We don’t get a lot of federal support for funding prisoner health care, so it just kind of deserves that extra attention to make sure that we’re using the state resources wisely." 

When Abramson kicked off her research for the CRC report that was published as "The Lack Of Data Impedes Cost-Effective Health Care In Michigan’s Prisons" this month, she wondered if she could develop potential policy solutions if things like the health care needs of non-dangerous elderly inmates or the distribution of mental health and substance abuse treatments were contributing to the cost spikes. 

Preemptively, she questioned if a situation where new inmates were arriving "much, much sicker than the general population" was occurring, explaining that if data illustrated such a scenario, she would have crafted policy proposals geared more toward preventative care in their respective communities. 

"I wanted to see what was there and then develop potential policy solutions based on that data. However, it was very, very difficult to find the kind of data that we needed to do that," Abramson said. "Anything that we had from the (Michigan Department of Corrections (MDOC)) was a pretty broad level, overall summary of the health status, but really granular breakdowns of what’s driving spending and utilization and treatment." 

Following her research, Abramson said the public doesn’t know how effectively money is being used because they don’t know prisoners’ health outcomes. 

 "We don’t know if they’re getting better in prison, if we’re releasing them back into the population in a better or worse state (as) they came in…and all of these things can have huge repercussions and an impact on society at large," she said.

According to the study, the approximately $300 million annually the state has appropriated to the care of 30,000 prisoners in recent years is worth roughly 2% of all General Fund dollars. The aforementioned 34% average per-inmate spending jump comes both after inflation-related adjustments and following a decline in Michigan’s incarcerated population. 

With inflation adjustments being considered, per-prisoner healthcare expenditures have risen from $6,916 in the Fiscal Year (FY) of 2001 to $9,219 in FY ’21. 

The CRC was able to gather from the state’s corrections department that 33% of Michigan’s incarcerated population is being treated for mental health issues, with 10% being defined as experiencing serious mental illness like schizophrenia, bipolar disorder, or major depressive disorder.

Additionally, the MDOC has reported that prisoners older than 50-years-old account for 25% of the incarcerated population, and 172 inmates were enrolled in the department’s version of hospice care in 2019. 

Also, 10% of incarcerated individuals in Michigan have Hepatitis C, with about 11 new inmates being diagnosed each month at intake, the CRC relays. 

"It might be that the department isn’t doing anything wrong. It might be that the department is doing everything that they can and that they are using everything as efficiently as possible, but it’s a problem that we don’t know and we’re not able to figure that out," Abramson said. "It could be that we are not doing enough to meet (the kind of) constitutional obligations we have towards prisoners to keep them healthy and productive, and (the solution to that might be) that we need more spending or just to change our spending on certain services that will benefit them more."

Kyle Kaminski, the MDOC’s legislative liaison, said that the department is currently reviewing the CRC’s report, which consists of a call for more raw data to be available surrounding inmates’ health outcomes. 

He confirmed that the cost of health care for prisoners has gotten more expensive, with driving factors consisting of things like the cost of health care staff following the COVID-19 pandemic and the availability of new and more costly prescriptions and procedures. 

"And when you look at the prisoner population, the prisoner population has higher health needs than the general population. Many folks did not routinely connect with health care in the community before they came into the criminal justice system, and so there’s (often) a lot to be done in terms of a chronic care approach," Kaminski said. "Folks have a lot of conditions or other chronic care needs that will be addressed while they’re incarcerated."


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