           If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


MARC SLIS and 906 VAPOR,                                         FOR PUBLICATION
                                                                 May 21, 2020
               Plaintiffs-Appellees,                             9:00 a.m.

v                                                                No. 351211
                                                                 Court of Claims
STATE OF MICHIGAN and DEPARTMENT OF                              LC No. 19-000152-MZ
HEALTH AND HUMAN SERVICES,

               Defendants-Appellants.


A CLEAN CIGARETTE CORPORATION,

               Plaintiff-Appellee,

v                                                                No. 351212
                                                                 Court of Claims
GOVERNOR, STATE OF MICHIGAN, and                                 LC No. 19-000154-MZ
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,

               Defendants-Appellants.


Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ.

MARKEY, P.J.

       In these consolidated appeals, defendants appeal by leave granted the opinion and order
of the Court of Claims granting plaintiffs’ motions for a preliminary injunction. The ruling
enjoined enforcement of emergency rules promulgated by defendant Department of Health and
Human Services (DHHS) pursuant to MCL 24.248(1). In significant part, the emergency rules
prohibit the sale and distribution of flavored nicotine vapor products in Michigan. The stated
purpose of the emergency rules was to combat a vaping crisis among the youth of our state and
protect them from nicotine product addiction. As required by MCL 24.248(1), defendant
Governor concurred in the DHHS’s finding that it was necessary to promulgate the emergency


                                             -1-
rules. Plaintiffs commercially sell vapor products that are now banned under the emergency
rules, and they filed declaratory judgment actions against defendants alleging that the emergency
rules are invalid. We hold that the DHHS and the Governor are entitled to due deference with
regard 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
on the basis of the evidence presented by the parties. Accordingly, we affirm.

                 I.     CONSTITUTIONAL AND STATUTORY FRAMEWORK

        “The public health and general welfare of the people of the state are hereby declared to be
matters of primary public concern,” and “[t]he legislature shall pass suitable laws for the
protection and promotion of the public health.” Const 1963, art 4, § 51. The Public Health
Code, MCL 333.1101 et seq., reflects the Legislature’s continuing efforts to carry out its duties
under the Michigan Constitution. MCL 333.2221(1) provides:

               The [DHHS] shall continually and diligently endeavor to prevent disease,
       prolong life, and promote the public health through organized programs, including
       prevention and control of environmental health hazards; prevention and control of
       diseases; prevention and control of health problems of particularly vulnerable
       population groups; development of health care facilities and agencies and health
       services delivery systems; and regulation of health care facilities and agencies and
       health services delivery systems to the extent provided by law.

The DHHS may “[e]xercise authority and promulgate rules to safeguard properly the public
health[.]” MCL 333.2226(d). And MCL 333.2233(1) similarly provides that “[t]he [DHHS]
may promulgate rules necessary or appropriate to implement and carry out the duties or functions
vested by law in the department.”

        The promulgation of administrative rules is governed by Chapter 3 of the Administrative
Procedures Act of 1969 (APA), MCL 24.201 et seq.1 Generally, “before the adoption of a rule,
an agency . . . shall give notice of a public hearing and offer a person an opportunity to present
data, views, questions, and arguments.” MCL 24.241(1). Publication requirements regarding the
notice of public hearing are set forth in MCL 24.242. MCL 24.248(1) describes the
circumstances in which the normal procedural requirements in promulgating a rule need not be
followed, providing:

              If an agency finds that preservation of the public health, safety, or welfare
       requires promulgation of an emergency rule without following the notice and


1
 A “rule” is defined as “an agency regulation, statement, standard, policy, ruling, or instruction
of general applicability that implements or applies law enforced or administered by the agency,
or that prescribes the organization, procedure, or practice of the agency, including the
amendment, suspension, or rescission of the law enforced or administered by the agency.” MCL
24.207. MCL 24.207(a) through (r) list a number of actions that are excepted from the
definition. There is no dispute that the instant cases concern a “rule” promulgated by the DHHS.



                                                -2-
       participation procedures required by [MCL 24.241 and MCL 24.242] and states in
       the rule the agency's reasons for that finding, and the governor concurs in the
       finding of emergency, the agency may dispense with all or part of the procedures
       and file in the office of the secretary of state the copies prescribed by [MCL
       24.246] endorsed as an emergency rule, to 3 of which copies must be attached the
       certificates prescribed by [MCL 24.245] and the governor's certificate concurring
       in the finding of emergency. The emergency rule is effective on filing and
       remains in effect until a date fixed in the rule or 6 months after the date of its
       filing, whichever is earlier. The rule may be extended once for not more than 6
       months by the filing of a governor's certificate of the need for the extension with
       the office of the secretary of state before expiration of the emergency rule. . . . .



                       II. PROMULGATION OF EMERGENCY RULES

         We initially note that pursuant to 2019 PA 18, effective September 2, 2019, the
Legislature amended the youth tobacco act (YTA), MCL 722.641 et seq., extending the
prohibition of sales of tobacco products to minors to also include “vapor products” and
“alternative nicotine products.”2 Subsequently, on September 18, 2019, the DHHS, relying on
the legal authorities recited earlier, promulgated emergency rules entitled: “Protection of Youth
from Nicotine Product Addiction.” 2019 Mich Reg 18 (October 15, 2019), p 7. The DHHS
found that Michigan was confronted with a “vaping crisis among youth[,]” necessitating the
promulgation of emergency rules to address the crisis. Id. The DHHS articulated numerous
reasons for its finding, footnoting the sources for all of its factual assertions. Id. at 7-8. The
general premise of the DHHS’s position was that “[s]ince 2014, e-cigarettes (also known as
vapor products) have been the most commonly used tobacco product among youth in the U.S.”
Id. at 7. The DHHS noted that “[i]n December of 2018, the United States Surgeon General
Jerome Adams officially declared e-cigarette use among youth in the United States an epidemic.”
Id. at 8. The DHHS concluded that the “epidemic can . . . be attributed in large part to the appeal
of flavored vapor products to youth as well as the advertising and promotional activities by
companies that glamorize use of nicotine products nationwide.” Id.




2
  MCL 722.641(1) provides that “[a] person shall not sell, give, or furnish a tobacco product,
vapor product, or alternative nicotine product to a minor, including, but not limited to, through a
vending machine.” And MCL 722.642(3)(a) provides that a minor shall not “[p]urchase or
attempt to purchase a vapor product or alternative nicotine product.” A “vapor product” is
statutorily defined as “a noncombustible product that employs a heating element, power source,
electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size,
that can be used to produce vapor from nicotine or any other substance, and the use or inhalation
of which simulates smoking. . . . .” MCL 722.644(h).




                                                -3-
       Under Rule 1(1)(c) of the emergency rules, a “flavored nicotine vapor product” is defined
as “any vapor product that contains nicotine and imparts a characterizing flavor.” 3 And a
“characterizing flavor” is defined as “a taste or aroma, other than the taste or aroma of tobacco,
imparted either prior to or during consumption of a tobacco product, vapor product, or alternative
nicotine product, or any byproduct produced thereof.” Rule 1(1)(a).4

       Rule 2 of the emergency rules is the most pertinent provision for purposes of the two
lawsuits, and it provides as follows:

               (1) Beginning 14 days after these rules are filed with the secretary of state,
                   a retailer or reseller shall not:

                       (a) Sell, offer for sale, give, transport, or otherwise distribute, nor
                           possess with intent to sell, give, or otherwise distribute a
                           flavored nicotine vapor product.

                       (b) Use imagery explicitly or implicitly representing a
                           characterizing flavor to sell, offer for sale, give, or otherwise
                           distribute a vapor product.

               (2) Beginning 14 days after these rules are filed with the secretary of state,
                   a person shall not transport flavored nicotine vapor products intended
                   for delivery to any retailer or reseller in violation of these rules.

Rule 3 addresses “fraudulent or misleading terms or statements to sell, offer for sale, give, or
otherwise distribute vapor products.” Rule 3(1). Rule 4 provides that “[b]eginning 14 days after
these rules are filed with the secretary of state, the restrictions on advertising set forth at 21 CFR
1140.32 apply with equal force to vapor products. Violations of 21 CFR 1140.32 are violations
of this rule.”5 Rule 5 states that the rules “apply with equal force to retailers and resellers
utilizing online and other remote sales methods that are intended to deliver flavored nicotine
vapor products to this state.” Rule 6 regulates the placement of advertisements for vapor
products in general. A violation of any of the emergency rules constitutes a misdemeanor that is
punishable by incarceration “for not more than 6 months, or a fine of not more than $200, or
both.” Rule 7(1). Rule 8 provides that “[i]f any rule or subrule of these rules, in whole or in



3
  The emergency rules can be found in volume 18 of the 2019 Michigan Register, pages 9 and
10. See MCL 24.248(3) (“The emergency rule must be published in the Michigan register . . .
.”).
4
  The definition continues by indicating that a characterizing flavor “includes, but is not limited
to, tastes or aromas relating to food or drink of any sort; menthol; mint; wintergreen; fruit;
chocolate; vanilla; honey; candy; cocoa; dessert; alcoholic beverages; herbs; or spices.” Id.
5
  21 CFR 1140.32 concerns format and content requirements for labeling and advertising
cigarettes and smokeless tobacco.



                                                 -4-
part, is found to be invalid by a court of competent jurisdiction, such decision will not affect the
validity of the remaining portion of these rules.” 6

        As required by MCL 24.248(1), the Governor concurred in the finding of an emergency
and in the determination that the public interest required the promulgation of the emergency
rules. The emergency rules were filed with the Secretary of State on September 18, 2019.
Consistent with the parameters set forth in MCL 24.248(1), the emergency rules provided that
they were to remain in effect for a period of 6 months. The emergency rules would have expired
on March 18, 2020, but on March 11, 2020, the Governor filed a certificate of need for extension
of the emergency, extending the effectiveness of the emergency rules another six months until
September 18, 2020.7 See MCL 24.248(1). The certificate of need cited new data and surveys
that led the Governor to find that the trend of minors using e-cigarettes had “increased over the
past year.” The Governor also observed:

               The documented intensification of the vaping crisis only confirms what
       DHHS determined when it, with my concurrence, originally issued the
       Emergency Rules: to protect the public health and welfare from the emergent and
       worsening crisis of youth vaping, the Emergency Rules must go into effect
       immediately. The Emergency Rules’ prohibition on flavored vapor products will
       significantly limit the appeal of vaping to youth, curbing the increase in new
       youth users.

                                     III. THE LITIGATION

        Plaintiff Marc Slis owns and operates plaintiff 906 Vapor, LLC, which is a retail store
located in Houghton that sells a variety of vapor products, some of which contain nicotine with
non-tobacco flavors. We collectively refer to these two plaintiffs as “Slis.” On September 25,
2019, Slis filed an extensive complaint against the state and the DHHS in the Houghton Circuit
Court seeking declaratory relief. In that original action, Slis first contended that the emergency
rules were ultra vires. Slis also maintained that the emergency rules were invalid because: (1)
there was no emergency justifying a departure from the procedural safeguards required by the
APA; (2) assuming the circumstances warranted a somewhat urgent response, the DHHS could
not skip all of the APA’s procedural safeguards; and (3) assuming a true emergency, the threat
only affected a small subgroup of the general public, which was insufficient as a matter of law to
trigger the authority to promulgate emergency rules. Finally, Slis alleged that the emergency
rules were substantively invalid because they were inconsistent with the legislative intent of the
enabling statute and because they were arbitrary and capricious.


6
  The DHHS’s findings and the emergency rules are attached as Appendix 1 to this opinion and
are incorporated into the opinion.
7
  The certificate of need for extension of the emergency rules, which includes the Governor’s
findings, is attached as Appendix 2 to this opinion and is incorporated into the opinion. See
MRE 202(a) (allows taking judicial notice of “regulations of . . . agencies of Michigan”); MCR
7.216(A)(4) (this Court may “permit . . . additions to the transcript or record”).



                                                -5-
        Additionally, Slis filed a motion for preliminary injunction and an emergency ex parte
motion for a temporary restraining order (TRO) that would prohibit defendants from enforcing
the emergency rules pending a hearing on the motion for preliminary injunction. Slis claimed
that his business would suffer an immediate and irreparable injury if the court did not enjoin
enforcement of the emergency rules because the business would have to close its doors,
terminate its employees, and destroy over 80% of its inventory. The circuit court denied the ex
parte motion for a TRO on the basis of a technical defect, and shortly thereafter the case was
transferred to the Court of Claims. On September 30, 2019, in the Court of Claims, Slis filed an
emergency motion for expedited consideration of a renewed motion for TRO. Later that day, the
Court of Claims denied Slis’s motion.

        Plaintiff, A Clean Cigarette Corporation (ACC), is a Michigan-based retailer of flavored
vapor products. ACC operated 20 locations throughout the state, employed 53 people, and sold
about 2500 flavored vapor cartridges a month that contained zero nicotine. On October 1, 2019,
ACC filed a complaint against the state, the Governor, and the DHHS. On the same date, ACC
filed a motion for TRO and order to show cause why a preliminary injunction should not issue.
ACC alleged that it would suffer irreparable injury if the emergency rules were enforced because
it would result in the closure of almost all of ACC’s 20 locations. On October 2, 2019, the Court
of Claims denied the motion for a TRO and ordered the consolidation of the two lawsuits. On
October 4, 2019, ACC moved for a preliminary injunction, asserting:

                 These emergency rules give no consideration or mention the impact the
         ban will have on adult vaping users who have elected to use flavored vapor in
         order to transition away from smoking cigarettes. Since vaping is already illegal
         for minors, all that this ban will accomplish is to take the flavored vaping options
         away from adults. Accordingly, ACC requests injunctive relief to avoid the
         irreparable harm this ban will cause to its business, employees, businesses like it
         and the tens of-thousands of Michigan adults that elect to use flavored vapor
         products in lieu of combustible tobacco products.

        On October 4, 2019, ACC also filed an amended complaint against defendants, alleging
four causes of action. ACC alleged an unjustified interference with interstate commerce, federal
statutory preemption under 21 USC 387,8 an uncompensated unconstitutional taking of ACC’s
property, and violation of the APA.

        With respect to Slis’s action, on October 1, 2019, the Court of Claims, having rejected
issuance of a TRO, heard testimony on the issue whether Slis would suffer irreparable harm if a
preliminary injunction did not issue. Slis testified that he purchased 906 Vapor after being a
customer of the business for about 1-1/2 years. He had first tried e-cigarettes as a method to stop
smoking regular cigarettes and was successful. He was only successful, however, after he tried
flavored e-cigarettes. Slis asserted that he had between 200 and 500 customers at any given
time. He maintained a number of business documents, including sales records, inventory data,
sales receipts, invoices, and tax records. Slis testified that approximately 95% of his customers


8
    Federal law regarding tobacco products is governed by 21 USC 387 et seq.



                                                 -6-
used flavored vapor products. He contended that 906 Vapor would have to close its doors and
file for bankruptcy if the emergency rules went into effect. Slis also asserted that if the flavored
nicotine vapor products were taken off the shelves for six months, the nicotine would oxidize and
change the color of the product.

        The Court of Claims denied Slis’s motion for a preliminary injunction, concluding that he
had “not met the burden of demonstrating an irreparable harm for which there is no adequate
remedy at law.” Consistent with its order in the ACC suit, the Court of Claims consolidated
Slis’s suit with ACC’s action. It denied Slis’s motion for preliminary injunction without
prejudice, stating that “all parties will have the opportunity for additional briefing, testimony,
and argument” at a later hearing. In other words, the Court of Claims, given the consolidation,
was prepared to entertain a full evidentiary hearing entailing Slis, ACC, and defendants
regarding whether a preliminary injunction should issue. Nevertheless, Slis filed an application
for leave to appeal, which this Court denied. Slis v Michigan, unpublished order of the Court of
Appeals, entered October 7, 2019 (Docket No. 350888).

         The Court of Claims held the preliminary-injunction hearing on October 8 and 9, 2019.
Slis testified that 906 Vapor closed its doors on October 1, 2019, because of the inability to sell
flavored vapor products. Slis explained that his average customer was a middle-aged, semi-
professional person. Slis claimed that he always verified the ages of all customers by examining
their identification and using an age-checker cellular phone application. Slis maintained that his
business was dedicated to helping people stop smoking. He further contended that 80% to 90%
of his clients who wanted to quit smoking were ultimately successful. When asked if his
customers could travel the five-plus miles to Wisconsin or use the Internet to purchase the
banned products, Slis testified that they had already begun doing so. Slis opined that if the
emergency rules remained in effect for six months, all of his product could possibly expire in the
interim. He was certain that expiration of his product would occur if the emergency rules were
extended for an additional six months, which extension has now come to fruition. Slis also
testified that he carried between $15,000 and $20,000 in business debt and $60,000 in personal
debt and that 906 Vapor was his sole source of income. According to Slis, if the emergency
rules remained in effect, he would have to declare bankruptcy.

        Cary Lee testified that he started ACC in 2010 and that it presently had 19 retail stores in
Michigan with 53 employees. He maintained that one of his stores had closed because of the
emergency rules. Lee indicated that ACC sold flavored vapor products. He started the company
after using e-cigarettes to quit smoking in 2010, and he wished to help others overcome their
addictions. Lee claimed that it is a real fight to quit smoking and that it is easier to quit when the
e-cigarette tastes better. His wife, Ramona Lee, testified that five more ACC stores would close
on October 15, 2019, and then probably another five stores would follow if the emergency rules
were not overturned. She observed that approximately 50% of ACC’s inventory was illegal
under the emergency rules.

        Ramona Lee further indicated that ACC had 740,000 cartridges, which were worth
approximately $3 million, that could not be sold under the emergency rules. She testified that
before September 2, 2019, ACC sold $13,000 to $14,000 of product a day, excluding online
sales, but since October 2, 2019, sales had diminished to approximately $9,000 a day. She also
explained that 75% of online sales came from customers outside of Michigan, but flavored vapor


                                                 -7-
products had been removed from ACC’s website in response to the emergency rules. Dawn
Every, an ACC employee, testified that only 2.3% of the company’s clients were between the
ages of 18 and 25. David Haight, the Vice-President of ACC’s operations, indicated that the
amount of product that could not be sold was worth between $2.2 million and $2.5 million.
Another ACC employee, Deleasha Trice, testified that using e-cigarettes had improved her
health.

        Amelia Howard testified that she was a Ph.D. candidate at the University of Waterloo in
the Department of Sociology and Legal Studies. Her dissertation was on the historical
technology of e-cigarettes, the integration of these products into the marketplace, and the “moral
panic” over vaping. The Court of Claims qualified her as an expert regarding whether there
existed a situation justifying the emergency rules. She disagreed that there was evidence
showing that flavored vapor products were causing an increase in vaping, and she discussed her
perceived flaws in the previous studies on the subject. Howard also talked about the studies
cited in support of the emergency rules and the problems with those studies from her perspective.
She opined that there was nothing to show that flavors caused vapor usage by minors. Howard
attributed youth vapor usage partly to perceptions that it was safer than smoking. She testified
that when she reviewed smoking and vaping statistics for Michigan, the state had double the
average smoking rate among youth, but the state’s vaping rates were half the national average.
Howard spoke of the evolution of flavors in vaping products, which was a response to people
who were trying to quit smoking but did not like the taste of the initial tobacco flavorings. After
Howard discussed a study showing that the rise of flavored vaping products had led to smoking
cessation, defendants conceded that the study had provided a correlation between adults using
flavored e-cigarettes and their reduction in the use of combustible cigarettes.

        Dr. Joneigh Khaldun testified that she was the Chief Medical Executive and the Chief
Deputy Director for Health at the DHHS. She discussed her other experiences with health crises,
including those involving the measles, hepatitis A outbreaks, and the opioid epidemic. Dr.
Khaldun emphasized that it was important to respond quickly once a health problem is identified.
She stated that vaping use by the young impacted general public health. Dr. Khaldun had
examined national and state data about the number of youths using vaping products and opined
that the high numbers amounted to a public health emergency. According to Dr. Khaldun, at one
high school more than a third of the students used vaping products. She testified that there was
evidence that many youths used flavors to initiate their vaping experiences.

        Dr. Khaldun discussed the recent amendment of the YTA, which we alluded to earlier,
that banned the sale of vaping products to individuals under the age of 18. Despite the legislative
action, she still believed that the emergency rules were necessary because she had no reason to
conclude that the statutory amendment would have any impact. Dr. Khaldun noted that the FDA
had banned the sale of vaping products to minors in 2016. She reviewed a chart that tracked the
percentage of high school students who used vaping products from November 2013 through
March 2019. It showed that high school use continued to rise significantly even after the 2016
ban.

        Dr. Khaldun additionally testified that e-cigarettes were not approved by the FDA as a
smoking cessation product. She had not seen definitive evidence that e-cigarettes were effective
in stopping the use of tobacco products overall. She further noted that another study showed that


                                               -8-
tobacco-flavored products were one of the most popular flavors among adult e-cigarette users.
When asked whether there would be any harm if the emergency rules were halted, Dr. Khaldun
replied that there would indeed be harm because each new day without the ban would allow for
the opportunity for a minor to gain access to flavored vapor products.

        Dr. Khaldun testified that “the epidemic in the emergency is about youth being addicted
to nicotine.” She agreed that traditional combustible cigarettes were more harmful to the health
of adults and children. But she claimed that there was no evidence about the long-term health
effects of e-cigarettes. Dr. Khaldun also noted that the United States Surgeon General had
officially declared e-cigarette use among youth as an emergency epidemic in December 2018.
She conceded, however, that Michigan did not declare such an emergency until August 30, 2019.
Dr. Khaldun acknowledged that one of the studies she cited did not show how many youths who
vaped were previously using regular tobacco products.

        Following the hearing, the Court of Claims issued an extensive written opinion and order
that enjoined and restrained enforcement of the emergency rules. The Court of Claims made the
following 16 specific findings of fact.

                   1.      906 Vapor is no longer a “going concern.” Its inventory remains at
          its retail operation.

                  2.     The business owner, Slis, has considerable business and personal
          debt such that resumption of business after expiration of the Emergency Order[9]
          is unlikely.

                  3.     Customers of 906 Vapor have begun purchasing product from out-
          of-state vendors.

                 4.      [ACC] has shuttered one retail center and is in the process of
          closing four others.

                   5.     [ACC] had a considerable [I]nternet operation that, like its retail
          stores, relied on sale of flavored nicotine product.

                 6.     [ACC’s] [I]nternet operation has ceased advertising flavored
          nicotine product.

                 7.      The “A Clean Cigarette” logo and name is posted on its retail
          operations, uniforms, e-cigarette cartridges and batteries.

                8.      [The terms] Clean and Cigarette cannot be used together per Rule
          number 3(2), of the Emergency Order.




9
    This is a reference to the emergency rules.



                                                  -9-
              9.      The shelf life of vaping product whether for open or closed
       container systems is ten months or less.

              10.      [ACC] has contractually committed to receive additional product
       bearing its logo.

              11.     Neither Plaintiff sold products to minors.

             12.    E-cigarette users who were             patrons   of   the   plaintiffs
       overwhelmingly use flavored nicotine product.

              13.     [ACC] has over two million dollars of unusable product.

               14.    In reaching the conclusion that an emergent danger was posed by
       e-cigarette use among persons under th[e] age of 18 in Michigan, the [DHHS]
       cited numerous studies . . . .

             15.   The [DHHS] considered the passage of Public Act 18 when it
       recommended the emergency rules.

               16.     The [DHHS] had a basis for its determination that Public Act 18
       would not be a significant deterrent to youth e-cigarette use. That basis was
       derived from the historic data on e-cigarette use in other states which adopted
       similar legislation to Public Act 18 prior to Michigan.

        The Court of Claims next reviewed the factors to be considered in determining whether to
issue a preliminary injunction. It found that plaintiffs would suffer irreparable harm if the
emergency rules were not enjoined. With respect to whether plaintiffs were likely to succeed on
the merits, the Court of Claims noted that plaintiffs had argued that the DHHS had no
rulemaking authority on the subject-matter. But it found that it did not need to reach that
particular issue because it agreed with plaintiffs’ argument that the emergency rules were
procedurally invalid for the reason that there was no “emergency.” Therefore, the Court of
Claims determined that plaintiffs had demonstrated a likelihood of success on the merits.10

       The Court of Claims discussed the difference between an “emergent” problem such as
teen vaping and a true emergency that “required” the DHHS to suspend the normal rulemaking
process under the APA. It opined that the DHHS was required to do more than simply identify a
problem; the DHHS was also required to articulate proper justification to take a shortcut in
promulgating rules. The Court of Claims ruled that plaintiffs had the better argument with
respect to whether the circumstances mandated the promulgation of the emergency rules
pursuant to MCL 24.248. It noted that the sources, information, data, and surveys upon which
the DHHS had relied were available at the latest in February 2019, yet the DHHS had waited


10
  The Court of Claims made clear that it was not rendering judgment on the DHHS’s policy
goals and what it was attempting to achieve.



                                              -10-
eight months to take any action. During this time, according to the Court of Claims, the normal
APA procedures could have been employed and run their course. The Court of Claims found
that the old informational materials, coupled with the DHHS’s failure to act promptly,
undermined the declaration of an emergency. It rejected the DHHS’s explanation for the delay
that Dr. Khaldun had only recently been appointed as Chief Medical Executive, because DHHS
could still have done something earlier. The Court of Claims ruled that the DHHS could not
“create an emergency by way of its own failure to act,” finding plaintiffs’ citation to federal
authority for this proposition persuasive.

       Balancing the harms to the parties, the Court of Claims noted that defendants had not
argued that they would suffer any harm if the preliminary injunction were issued. With respect
to whether the injunction would harm the public, the Court of Claims found that each side had
presented a compelling argument. On one hand, were an injunction issued, youth could gain
access to flavored nicotine vapor products, and there was evidence which suggested that there
were risks to youth who used vaping products. On the other hand, plaintiffs had presented
evidence to show that there was a real risk of harm to smokers who had used flavored vaping
products as a substitute for more harmful combustible tobacco products and that they could go
back to those products if flavored vaping products were banned. The Court of Claims ultimately
found that the balancing factor did not weigh heavily for either side. It then ruled that the
various factors, taken together, supported the issuance of the preliminary injunction.

        Defendants applied for leave to appeal to this Court on October 25, 2019. They
subsequently filed a bypass application for leave in the Michigan Supreme Court that was
rejected. Slis v Michigan, 505 Mich 943 (2019) (“the Court is not persuaded that the question
presented should be reviewed by this Court before consideration by the Court of Appeals”). This
Court granted leave to appeal limited to the issues raised in the applications, expedited the
appeals, consolidated the two cases, and denied defendants’ motion for a stay. Slis v Michigan,
unpublished order of the Court of Appeals, entered December 9, 2019 (Docket No. 251211); A
Clean Cigarette Corp v Governor, unpublished order of the Court of Appeals, entered December
9, 2019 (Docket No. 251212).

                                        IV. ANALYSIS

                                A. STANDARDS OF REVIEW

        We review for an abuse of discretion a trial court’s ruling on a request for a preliminary
injunction. Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143,
146; 809 NW2d 444 (2011). A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes. Id. The factual findings that a trial court makes in
the process of deciding whether to grant a preliminary injunction are reviewed for clear error. Id.
Associated issues involving statutory interpretation are reviewed de novo by this Court as
questions of law. Id. We also review de novo the interpretation of a rule or regulation adopted
by an agency pursuant to statutory authority. United Parcel Serv, Inc v Bureau of Safety &
Regulation, 277 Mich App 192, 202; 745 NW2d 125 (2007). And similarly, this Court reviews
de novo constitutional issues. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).

                   B. PRINCIPLES OF STATUTORY INTERPRETATION


                                               -11-
        This Court’s role in construing statutory language is to discern and ascertain the intent of
the Legislature, which may reasonably be inferred from the words in the statute. Mich Ass’n of
Home Builders v City of Troy, 504 Mich 204, 212; 934 NW2d 713 (2019). We must focus our
analysis on the express language of the statute because it offers the most reliable evidence of
legislative intent. Id. When statutory language is clear and unambiguous, we must apply the
statute as written. Id. A court is not permitted to read anything into an unambiguous statute that
is not within the manifest intent of the Legislature. Id. Furthermore, this Court may not rewrite
the plain statutory language nor substitute its own policy decisions for those decisions already
made by the Legislature. Id. at 212-213.

        “Judicial construction of a statute is only permitted when statutory language is
ambiguous.” Noll v Ritzer, 317 Mich App 506, 511; 895 NW2d 192 (2016). A statute is
ambiguous when an irreconcilable conflict exists between statutory provisions or when a statute
is equally susceptible to more than one meaning. People v Hall, 499 Mich 446, 454; 884 NW2d
561 (2016). “When faced with two alternative reasonable interpretations of a word in a statute,
we should give effect to the interpretation that more faithfully advances the legislative purpose
behind the statute.” People v Adair, 452 Mich 473, 479-480; 550 NW2d 585 (1996).

               C. LAW GOVERNING PRELIMINARY INJUNCTIONS IN GENERAL

        A preliminary injunction is generally considered a form of equitable relief that has the
objective of maintaining the status quo pending a final hearing concerning the parties’ rights.
Mich AFSCME Council 25, 293 Mich App at 146. Four factors must be taken into consideration
by a court when determining if it should grant the extraordinary remedy of a preliminary
injunction to an applicant: (1) whether the applicant has demonstrated that irreparable harm will
occur without the issuance of an injunction; (2) whether the applicant is likely to prevail on the
merits; (3) whether the harm to the applicant absent an injunction outweighs the harm an
injunction would cause to the adverse party; and (4) whether the public interest will be harmed if
a preliminary injunction is issued. Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich
1, 6 n 6; 753 NW2d 595 (2008); Mich Coalition of State Employee Unions v Civil Serv Comm,
465 Mich 212, 225 n 11; 634 NW2d 692 (2001); Thermatool Corp v Borzym, 227 Mich App
366, 376; 575 NW2d 334 (1998). “[A] preliminary injunction should not issue where an
adequate legal remedy is available.” Pontiac Fire Fighters, 482 Mich at 9. “The mere
apprehension of future injury or damage cannot be the basis for injunctive relief.” Id. The party
requesting “injunctive relief has the burden of establishing that a preliminary injunction should
be issued . . . .” MCR 3.310(A)(4).

   D. REVIEW OF AN AGENCY’S ACTION TO PROMULGATE EMERGENCY RULES
                           UNDER MCL 24.248

        The Court of Claims effectively concluded that there was no true emergency as necessary
to permit the DHHS and Governor to proceed under MCL 24.248(1) and promulgate the
emergency rules without a hearing and public participation, which are typically required in the
process of promulgating a rule. On the basis of this conclusion, the Court of Claims found that
plaintiffs were likely to prevail on the merits of their complaints. The likelihood of success on
the merits—one of the factors to consider in ruling on a request for a preliminary injunction—
was the driving force behind the ruling, and defendants devote the vast majority of their brief


                                               -12-
addressing the issue. In examining whether there was an emergency justifying a suspension of
normal rulemaking procedures, the Court of Claims applied de novo review, treating the issue as
one of statutory construction of MCL 24.248(1). Whether plaintiffs are likely to prevail on the
merits can potentially be influenced by the standard or scope of review and the level of
deference, if any, that is applicable to the finding by the DHHS and the Governor that the
preservation of the public health, safety, or welfare required promulgation of the emergency
rules. We shall examine the APA, the Michigan Constitution, and the caselaw, primarily this
Court’s decision in Mich State AFL-CIO v Secretary of State, 230 Mich App 1; 583 NW2d 701
(1998), in a quest to identify the proper standard for reviewing and assessing the DHHS’s actions
made in conjunction with the Governor under MCL 24.248(1).11

        The issue of whether the preservation of the public health, safety, or welfare requires
promulgation of an emergency rule without having to comply with the normal notice and
participation procedures involves, for the most part, a factual inquiry. And it is in regard to this
factual inquiry that we search for any applicable standards in judging the factual findings
ultimately made by the DHHS in association with the Governor. This theoretically includes the
possibility that the standard is that factual findings are not subject to any judicial review. To the
extent that statutory construction of MCL 24.248(1) plays a role in making the determination
whether to promulgate an emergency rule, e.g., defining the term “preservation,” the matter
would generally present a question of law subject to de novo review. Mich State AFL-CIO, 230
Mich App at 24.12 Here, our review of the emergency rules and the underlying findings does not
reveal any express instances of the DHHS or the Governor engaging in statutory interpretation.

                                           1. THE APA

        Chapter 6 of the APA, MCL 24.301 et seq., provides for judicial review, but this review
is only for persons “aggrieved by a final decision or order in a contested case[.]” MCL 24.301.
And a “contested case” is defined as “a proceeding, including rate-making, price-fixing, and
licensing, in which a determination of the legal rights, duties, or privileges of a named party is
required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCL
24.203(3). The promulgation of the emergency rules did not entail a contested case; therefore,
judicial review under Chapter 6 of the APA, including the provision regarding the scope of
review, MCL 24.306, was not applicable. See MCL 24.207(f) (a “rule” does not include “[a]
determination, decision, or order in a contested case”); Mich Ass’n of Home Builders v Dir of
Dep’t of Labor & Economic Growth, 481 Mich 496, 498; 750 NW2d 593 (2008) (“[T]he review
of an administrative rule is categorized as involving a non-contested case.”).



11
   Keep in mind that we are not tasked with making, nor do we make, any conclusive
determinations regarding the merits of the lawsuits; rather, our opinion is focused on whether the
preliminary injunction was properly issued and our analysis must be read in that context.
12
   We do note that “[a]n administrative agency’s interpretation of a statute that it is obligated to
execute is entitled to respectful consideration, but it cannot conflict with the plain meaning of the
statute.” Hegadorn v Dep’t of Human Servs Dir, 503 Mich 231, 244; 931 NW2d 571 (2019).



                                                -13-
       MCL 24.248 itself does not provide for any type of judicial review of an emergency rule
promulgated by an agency, but it also has no language prohibiting judicial review. We next
consider MCL 24.264, which provides, in pertinent part, as follows:

               Unless an exclusive procedure or remedy is provided by a statute
       governing the agency, the validity or applicability of a rule, including the failure
       of an agency to accurately assess the impact of the rule on businesses, including
       small businesses, in its regulatory impact statement, may be determined in an
       action for declaratory judgment if the court finds that the rule or its threatened
       application interferes with or impairs, or imminently threatens to interfere with or
       impair, the legal rights or privileges of the plaintiff. . . . This section shall not be
       construed to prohibit the determination of the validity or applicability of the rule
       in any other action or proceeding in which its invalidity or inapplicability is
       asserted.

        We agree with plaintiffs that MCL 24.264 gave them the right to challenge the validity of
the emergency rules under the plain and unambiguous language of the statute. See Mich Ass’n of
Home Builders, 481 Mich at 499 (“MCL 24.264 allows a plaintiff to challenge the validity of a
rule in an action for a declaratory judgment.”). An agency rule can be deemed substantively
invalid when the subject matter of the rule falls outside of or goes beyond the parameters of the
enabling statute, when the rule does not comply with the intent of the Legislature, or when the
rule is arbitrary or capricious. Mich State AFL-CIO, 230 Mich App at 15.13 A rule can also be
characterized as procedurally invalid if it was not properly promulgated, e,g., when a required
hearing was not conducted. Id. at 25; see also Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1,
8-10; 534 NW2d 467 (1995) (the failure to comply with a procedural requirement found in a
statute will render a purported rule invalid). MCL 24.264 broadly applies to all rules. There is
no restrictive language indicating or suggesting that it does not apply to a challenge of
“emergency” rules. Were this panel to recognize such an exception or limitation in MCL 24.264,
we would be reading language into an unambiguous statute that is not within the manifest intent
of the Legislature. City of Troy, 504 Mich at 212.

       Furthermore, there is no exclusive procedure or remedy provided in a different statute
governing the DHHS with respect to challenging the validity of a rule promulgated by the
DHHS. We have scoured the Public Health Code, including Part 22, MCL 333.2201 et seq.,
which encompasses the DHHS’s rulemaking authority, and there is no available procedure or
remedy in regard to challenging a promulgated rule, nor language barring a challenge. We reject
any contention that MCL 24.248—the statute authorizing the promulgation of an emergency



13
   Our Supreme Court in Ins Institute of Mich v Comm’r, Fin & Ins Serv, Dep’t Labor &
Economic Growth, 486 Mich 370, 385; 785 NW2d 67 (2010), also indicated that courts use a
three-part test to determine the validity of a rule: (1) whether the rule is within the subject matter
encompassed by the enabling statute; (2) if so, whether the rule complies with the underlying
legislative intent; and (3) if the rule meets the first two requirements, whether it is arbitrary or
capricious.



                                                -14-
rule—provides “an exclusive procedure or remedy,” as that phrase is used in MCL 24.264. The
“exclusive procedure or remedy” language of MCL 24.264 plainly and unambiguously pertains
to a procedure or remedy related to challenging the validity of a rule, not just any procedure or
remedy. Although MCL 24.248 sets forth the exclusive procedure to promulgate an emergency
rule, it has no language with regard to allowing or disallowing the challenge of an emergency
rule.

        Moreover, MCL 24.248 is not a statute specifically governing the DHHS such that it
could conceivably constitute an exception to the general applicability of MCL 24.264’s
authorization of declaratory judgment actions to challenge the promulgation of allegedly invalid
rules. MCL 24.248(1) governs the promulgation of emergency rules by any agency or agencies
in general; it is not specifically “a statute governing the [DHHS],” MCL 24.264. In our view,
MCL 24.264 reveals a general legislative intent to provide an avenue for a party to challenge a
rule promulgated by an agency, whether under MCL 24.264 itself or under another statute that
governs the agency. If the Legislature does not intend for judicial review of a promulgated rule
under certain circumstances or in connection with a particular agency, it can easily accomplish
that goal with language to that effect. And we have not been directed to any statutory language
that prohibits judicial review of the DHHS’s emergency rules. Moreover, as discussed in detail
below, this Court in Mich State AFL-CIO, 230 Mich App at 25, directly held that emergency
rules promulgated under MCL 24.248 can be contested in the courts.

        MCL 24.264 gives a party access to the courts through an action for declaratory
judgment, but it is silent with respect to any type of review standard that a trial court should
apply in determining whether an agency’s rule, emergency or otherwise, is invalid or whether it
was invalidly promulgated. MCL 24.264 does not indicate one way or the other whether any
deference should be given by the courts to an agency in the course of a declaratory judgment
action. And the statute does not expressly provide that underlying fact-finding by an agency can
be challenged in an action.

                             2. THE MICHIGAN CONSTITUTION

       Const 1963, art 6, § 28, provides, in part:

               All final decisions, findings, rulings and orders of any administrative
       officer or agency existing under the constitution or by law, which are judicial or
       quasi-judicial and affect private rights or licenses, shall be subject to direct review
       by the courts as provided by law. This review shall include, as a minimum, the
       determination whether such final decisions, findings, rulings and orders are
       authorized by law; and, in cases in which a hearing is required, whether the same
       are supported by competent, material and substantial evidence on the whole
       record. . . . .




                                                -15-
        The promulgation of an agency rule does not constitute a decision by the agency that is
judicial or quasi-judicial in nature; therefore, Const 1963, art 6, § 28, does not apply to the
instant cases.14

        Defendants raise a constitutional separation of powers argument with no citation of
supporting precedent that is pertinent and binding. “The powers of government are divided into
three branches: legislative, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as expressly provided in this
constitution.” Const 1963, art 3, § 2. In In re Complaint of Rovas Against SBC Mich, 482 Mich
90, 97-98; 754 NW2d 259 (2008), our Supreme Court stated:

               This case implicates the powers, and the boundaries of the powers, of all
       three branches: the Legislature, the judiciary, and administrative agencies, which
       are part of the executive branch. . . . .

              The people of the state of Michigan have divided the powers of their
       government into three branches: legislative, executive and judicial. Furthermore,
       no person exercising the powers of one branch shall exercise powers properly
       belonging to another branch except as expressly provided in this constitution.

               The legislative power of the State of Michigan is vested in a senate and a
       house of representatives. Simply put, legislative power is the power to make laws.
       In accordance with the constitution's separation of powers, this Court cannot
       revise, amend, deconstruct, or ignore the Legislature's product and still be true to
       our responsibilities that give our branch only the judicial power. While
       administrative agencies have what have been described as “quasi-legislative”
       powers, such as rulemaking authority, these agencies cannot exercise legislative
       power by creating law or changing the laws enacted by the Legislature.
       [Quotation marks, citations, and alterations omitted.]

       The Legislature gave authority to the DHHS to promulgate rules as reflected in sections
2226 and 2233 of the Public Health Code, and the Legislature provided the DHHS and other
agencies the authority to promulgate emergency rules to preserve the public health, safety, or
welfare, with the concurrence of the Governor, MCL 24.248(1). Because the DHHS, as an


14
  In Natural Resources Defense Council v Dep’t of Environmental Quality, 300 Mich App 79,
86; 832 NW2d 288 (2013), this Court explained:
               [N]ot all agencies' actions are taken in a judicial or quasi-judicial capacity.
       To determine whether an administrative agency's determination is adjudicatory in
       nature, courts compare the agency's procedures to court procedures to determine
       whether they are similar. Quasi-judicial proceedings include procedural
       characteristics common to courts, such as a right to a hearing, a right to be
       represented by counsel, the right to submit exhibits, and the authority to subpoena
       witnesses and require parties to produce documents. [Citations omitted.]




                                                -16-
agency, is part of the executive branch, Const 1963, art 5, § 2, as is, of course, the Governor,
Const 1963, art 5, § 1, the Legislature effectively gave quasi-legislative authority to the
executive branch to promulgate emergency rules under the circumstances provided in MCL
24.248(1). But the Legislature, by enacting MCL 24.264, also gave the judiciary the power to
issue declaratory judgments with respect to whether agency rules are valid or invalid, including,
as we have held, emergency rules. The exercise of this authority can result in an emergency rule
being struck down by a court, despite being promulgated by the DHHS and approved by the
Governor. Under this structural framework enacted by our Legislature, we cannot conclude that
the judiciary improperly encroaches on the province of the executive branch by preliminarily
enjoining the enforcement of an emergency rule in a declaratory judgment action such that there
is a separation-of-powers violation. Nevertheless, whether separation of powers requires a
standard or scope of review that gives some level of deference to the fact-finding by the DHHS
and Governor under MCL 24.248(1) is a separate question that we shall return to later in this
opinion.15

                                           3. CASELAW

       The parties direct much of their attention to this Court’s opinion in Mich State AFL-CIO,
230 Mich App 1, which is binding precedent. See MCR 7.215(J)(1). In Mich State AFL-CIO,
the plaintiff labor union initially obtained an injunction banning the enforcement or
implementation of a declaratory ruling and interpretive statement issued by the Secretary of State
regarding a provision in the Michigan Campaign Finance Act (MCFA), MCL 169.201 et seq.
Mich State AFL-CIO, 230 Mich App at 8-9. The labor union had successfully argued that the
Secretary of State’s declaratory ruling and interpretive statement did not find statutory support in
the MCFA and that the interpretive statement constituted a “rule” that was not properly
promulgated under the APA. Id. at 9. In response to the injunction, the Secretary of State
proceeded to promulgate emergency rules under MCL 24.248 that essentially mimicked its prior
declaratory ruling and interpretive statement construing the relevant MCFA provision. Id. at 10-
11. The labor union then obtained a preliminary injunction enjoining the Secretary of State’s
enforcement of the emergency rules. Id. at 12. The trial “court concluded that no emergency
had existed.” Id. The trial court also ruled that the emergency rules exceeded the statutory
language in the MCFA. Id. at 13.

      On appeal, this Court affirmed the trial court’s ruling, albeit for different reasons. Id. at
25. The Court first indicated:

               Rules adopted by an agency in accordance with the APA are legislative
       rules that have the force and effect of law. In this case, the secretary adopted the
       emergency rules pursuant to § 48 of the APA. We conclude that the emergency
       rules are legislative rules that, if valid, have the force and effect of law. [Id. at 14-
       15 (citation omitted).]



15
  As mentioned earlier, this includes contemplation whether agency fact-finding is entirely
unreviewable under any circumstance.



                                                 -17-
       The Court then addressed whether the emergency rules were substantively valid, which,
as we noted earlier, implicated a three-part test that considers: “(1) whether the rule is within the
subject matter of the enabling statute; (2) whether it complies with the legislative intent
underlying the enabling statute; and (3) whether it is arbitrary or capricious.” Id. at 15 (quotation
marks and citations omitted).16 After analyzing the issue, the Court held:

                Accordingly, for purpose only of our preliminary injunction analysis, we
       conclude that the trial court apparently misjudged the strength of the union's
       demonstration that it is likely to prevail on the merits of its claim for declaratory
       relief that the secretary's emergency rules are substantively invalid. However, we
       emphasize that if and when this matter comes to trial, the actual determination of
       this claim is for the trial court in the first instance. [Id. at 17.]

        The Court next addressed whether the trial court erred by finding that no emergency
existed. Id. The Court cited and reviewed Mich Petroleum Ass’n v State Fire Safety Bd, 124
Mich App 187; 333 NW2d 506 (1983), in which this Court affirmed a lower court decision that
rejected an argument that no emergency existed for purposes of emergency rules promulgated
under MCL 24.248. Mich State AFL-CIO, 230 Mich App at 18. The Mich State AFL-CIO panel
stated that “it appears that the test adopted by Michigan Petroleum was whether the adopting
agency lacked a substantial basis for its finding that the public interest required promulgation of
the emergency rule” and that “[t]he opinion also seemed to include an abuse of discretion aspect
to the test.” Mich State AFL-CIO, 230 Mich App at 19 (quotation marks and citations omitted).
The Court in Mich State AFL-CIO was “not convinced that the ‘substantial basis’ or ‘abuse of
discretion’ tests are the appropriate tests.” Id. at 20. The panel accurately indicated that the
“substantial basis” test employed in Mich Petroleum was not supported by any citation of
authority. Mich State AFL-CIO, 230 Mich App at 19; Mich Petroleum, 124 Mich App at 193-
194. We also note that the analysis in Mich Petroleum was cursory and that Mich Petroleum is
not binding precedent. MCR 7.215(J)(1).

       This Court moved on with its analysis and, quoting in part the language in MCL
24.248(1), observed as follows:

             An emergency rule is justified if three conditions are satisfied: (1) the
       agency “finds that preservation of the public health, safety, or welfare requires
       promulgation of an emergency rule without following the notice and participation


16
   The Court effectively treats this three-part test as the authority for challenging an agency rule;
the panel did not refer to or cite MCL 24.264. We find it interesting that the three-part test, when
it is traced back to its origin, including through Supreme Court rulings, comes from this Court’s
opinion in Chesapeake & Ohio R Co v Mich Pub Serv Comm’n, 59 Mich App 88, 98-99; 228
NW2d 843 (1975), which cited nothing in support of the test. Therefore, it appears that there is a
statutory and a common-law basis to challenge an agency’s rule. This does not take away
anything from our reliance on MCL 24.264 in analyzing the separation of powers issue and in
searching for a standard or scope of review relative to agency fact-finding tied to rule
promulgation.



                                                -18-
       procedures required by section 41 and 42;” (2) the agency “states in the rule the
       agency's reasons for that finding”; and (3) “the governor concurs in the finding of
       emergency.” [Mich State AFL-CIO, 230 Mich App at 21.]

After examining the definition of “public welfare” in Black’s Law Dictionary (6th ed), this Court
ruled:

              [I]n order to bypass the general rule-making procedural protections
       contained in the APA, the secretary in this case was required to find that the
       preservation of the political interests of the public at large, or of a whole
       community, as distinguished from the advantage of an individual or limited class
       required promulgation of an emergency rule. [Mich State AFL-CIO, 230 Mich
       App at 22 (quotation marks omitted).]

         The Court then reviewed the Secretary of State’s finding of an emergency, determining
that the basis for the finding was the original “injunction that enjoined the enforcement of the
secretary’s declaratory ruling.” Id. at 23. But the panel noted that the injunction had only
enjoined the Secretary of State from enforcing the declaratory ruling against the labor union and
its affiliated organizations. Id. The Court pointed out that the declaratory ruling could still be
enforced by the Secretary of State against all other entities subject to the MCFA. Id. The Court
failed “to perceive how preservation of the political interests of the whole community is
threatened where the secretary is generally free to attempt to enforce its interpretation of . . . the
MCFA except against the limited class of the political committees of the union and its affiliated
organizations.” Id. at 24. Accordingly, the Court concluded that the emergency finding by the
Secretary of State related only to the advantage of a limited class. Id. The panel then ruled:

               A rule is invalid and may be stricken by a court if the agency failed to
       follow proper procedure. Generally, this principle applies where the agency fails
       to promulgate a rule in accordance with the APA's notice-and-participation
       procedures. However, we see no reason why this principle should not apply to
       emergency rules should the agency fail to follow the procedures and standards
       enunciated in § 48 of the APA, particularly where these procedures and standards
       take the place of the general rule-making procedural protections contained in the
       APA. It thus appears that the secretary's emergency rules are procedurally invalid
       because the secretary's finding did not meet the statutory threshold imposed by
       the Legislature. We note that we have treated this issue as an issue of statutory
       construction, which is a question of law that we review de novo. However, we
       would arrive at the same conclusion even if the “substantial basis” and “abuse of
       discretion” tests enunciated in Michigan Petroleum are the appropriate tests. [Id.
       at 24-25 (citations omitted).]

        Therefore, this Court held that the trial court had not erred by determining that the labor
union was likely to prevail on the merits of its claim that the emergency rules were procedurally
invalid. Id. at 25. The Court ended its opinion with the following summarization:

              [W]e conclude that the trial court apparently misjudged the strength of the
       union's demonstration that it is likely to prevail on the merits of its claim for


                                                -19-
       declaratory relief that the secretary's emergency rules are substantively invalid.
       However, we conclude that the trial court did not err in determining that the union
       is likely to prevail on the merits of its claim for declaratory relief that the
       emergency rules are procedurally invalid. No persuasive arguments have been
       made that the trial court erred in its consideration of the other preliminary
       injunction factors, and we will not, therefore, second-guess the trial court in this
       regard. The grant of a preliminary injunction with respect to the emergency rules
       preserved the status quo pending a final hearing and did not grant any of the
       parties final relief before a hearing on the merits. Accordingly, we conclude that
       on the facts of this particular case the trial court did not abuse its discretion in
       preliminarily enjoining the enforcement of the emergency rules. [Id. (citation
       omitted).]

        We first note that Mich State AFL-CIO fully supports our earlier determination that
emergency rules promulgated under MCL 24.248(1) can be challenged in court and are subject
to possible invalidation on the basis of procedural or substantive deficiencies. With respect to
conclusively identifying a standard or scope of review of an agency’s finding that the
surrounding circumstances required promulgation of an emergency rule, Mich State AFL-CIO is
not of much assistance. The Court was not convinced that a “substantial basis” or an “abuse of
discretion” test was the appropriate test, but it did not definitively reject those tests, even
determining that it would have reached the same result under both of the tests. The Court
employed de novo review, treating the issue as one of statutory construction. And the Court did
indeed interpret MCL 24.248(1) as not being applicable when a rule only preserves the welfare
of a limited class or an individual and not the welfare of the public at large. It does not appear
that there was any factual dispute that the welfare of only a limited class was preserved under the
emergency rules. Thus, the Court was not forced to assess a factual finding, resolve a factual
dispute, or identify a standard or scope of review relative to a factual finding made by the
Secretary of State in the process of promulgating the emergency rules. The appeal was
ultimately decided on the Court’s legal interpretation of “public welfare.”



       4. RESOLUTION – GIVING DEFERENCE TO THE DHHS AND GOVERNOR

        Initially, we do agree 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. Defendants fully complied with the
procedures for promulgating the emergency rules under MCL 24.248. We disagree with this
Court’s characterization in Mich State AFL-CIO that the emergency rules in that case were
procedurally invalid; rather, the Court ruled that the factual circumstances, given its construction
of MCL 24.248(1), did not justify invocation of emergency rules, which is not a procedural flaw
or failure. Regardless, it does not matter what moniker is used in describing an invalid rule; an
invalid rule is an invalid rule.

      Next, we conclude 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.
Although this Court’s decision in Mich State AFL-CIO was focused and primarily based on


                                               -20-
construction of MCL 24.248(1), the interpretation was ultimately and necessarily applied to the
essentially undisputed fact that only a limited class was benefited by the emergency rules. In
other words, the Court held that preservation of the public health, safety, or welfare did not
require promulgation of the emergency rules without following the notice and participation
safeguards. Furthermore, the language in MCL 24.264 that authorizes declaratory judgment
actions to challenge the validity of a rule does not place any limits or restrictions on the legal
basis of a challenge, thereby allowing an argument that erroneous agency fact-finding rendered a
rule invalid. This still leaves the question whether any deference should be given to agency fact-
finding.

        As discussed earlier, MCL 24.248 and MCL 24.264 do not provide any standards for
reviewing agency fact-finding that occurs in promulgating a rule or in deciding whether to
promulgate an emergency rule. And the standards for reviewing agency fact-finding in MCL
24.306 and Const 1963, art 6, § 28, have no application outside of contested cases and agency
decisions that are judicial or quasi-judicial in nature. Promulgating a rule entails neither
circumstance. The caselaw that recognizes that deference must be given to fact-finding by
administrative agencies, which we recite below, links the deferential standard to the evidentiary-
review provisions in MCL 24.306 and Const 1963, art 6, § 28. MCL 24.306(1)(d) authorizes a
court to set aside an agency’s decision when it is “[n]ot supported by competent, material and
substantial evidence on the whole record.” Const 1963, art 6, § 28, similarly provides that an
agency’s decisions, findings, rulings, and orders are reviewed, in part, to determine whether they
“are supported by competent, material and substantial evidence on the whole record.” With
respect to both the statutory and constitutional provisions, this Court has emphasized that
“[c]ourts should accord due deference to administrative expertise and not invade administrative
fact finding by displacing an agency's choice between two reasonably differing views.” Dignan
v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002); see
also MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974);
Monroe v State Employees’ Retirement Sys, 293 Mich App 594, 607; 809 NW2d 453 (2011);
Lewis v Bridgman Pub Sch (On Remand), 279 Mich App 488, 496; 760 NW2d 242 (2008).

        This deferential standard, while not expressly set forth in either Const 1963, art 6, § 28,
or MCL 24.306, grew out of and is viewed as being part of the “substantial evidence” test found
in the Michigan Constitution.17 See Detroit Symphony Orchestra, 393 Mich at 122-124
(reviewing documents concerning the Constitutional Convention in 1962 with respect to the
meaning of “substantial evidence” and recognizing that it entails giving due deference to an
agency’s fact-finding); see also In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994) (“When
reviewing the decision of an administrative agency for substantial evidence, a court should
accept the agency's findings of fact if they are supported by that quantum of evidence. A court
will not set aside findings merely because alternative findings also could have been supported by
substantial evidence on the record.”). Accordingly, because MCL 24.248 and MCL 24.264 are


17
   “Substantial evidence” has been defined as evidence that a reasonable mind would accept as
being adequate to support a decision, and it is more than a scintilla but can be substantially less
than a preponderance of evidence. Lewis, 279 Mich App at 496.



                                               -21-
not subject to the substantial evidence test, we cannot extend the due deference standard to those
statutes on the basis of caselaw construing MCL 24.306(1)(d) and Const 1963, art 6, § 28.

       Nevertheless, the principle of giving due deference to an agency with regard to fact-
finding because of its expertise has become well established in our civil jurisprudence. We note
this Court’s discussion in Mich Basic Prop Ins Ass’n v Office of Fin & Ins Regulation, 288 Mich
App 552, 560-561; 808 NW2d 456 (2010), regarding the nature of administrative agencies:

               Administrative agencies are created by the Legislature as repositories of
       special competence and expertise uniquely equipped to examine the facts and
       develop public policy within a particular field. Administrative agencies possess
       specialized and expert knowledge to address issues of a regulatory nature. Use of
       an agency's expertise is necessary in regulatory matters in which judges and juries
       have little familiarity. The relationship between the courts and administrative
       agencies is one of restraint, and courts must exercise caution when called upon to
       interfere with the jurisdiction of an administrative agency. Judicial restraint tends
       to permit the fullest utilization of the technical fact-finding expertise of the
       administrative agency and permits the fullest expression of the policy of the
       statute, while minimizing the burden on court resources. [Quotation marks,
       citations, and alterations omitted.]

        We now invoke the separation of powers doctrine to incorporate a due deference standard
with respect to agency fact-finding under MCL 24.248 and MCL 24.264. We earlier rejected
any notion that the separation of powers doctrine precludes judicial review altogether in regard
to a decision by an agency and the Governor to promulgate and enforce an emergency rule under
MCL 24.248. We reached this conclusion because the Legislature, which enacted MCL 24.248,
also enacted MCL 24.264, which provides for judicial review of the validity of rules in
declaratory judgment actions.18 But the silence in MCL 24.264, as well as in MCL 24.248,
regarding any standard or scope of review to apply in judging factual findings by an agency
connected to the promulgation of a rule provides an avenue to interject the application of
separation of powers principles to create a standard that is deferential to the agency’s factual
findings. If the judiciary is given free reign to ignore factual findings made by an agency in
promulgating rules and allowed to impose its own findings, the judiciary effectively tramples on
the powers of the executive branch and improperly and effectively engages in quasi-legislative
conduct.19



18
  We also note that the dissent in Mich State AFL-CIO, 230 Mich App at 26-43, opined that no
judicial review was allowed regarding the factual finding of an emergency, which position the
majority essentially ignored.
19
  We agree with Professor Don LeDuc’s view that the failure “to give deference to the factual
conclusions of an agency charged by the Legislature with responsibility to administer a statute
and to substitute its judgment for that of the highest official in the executive branch regarding the
existence of an emergency are both violative of the Constitution’s separation of powers
provisions.” LeDuc, Michigan Administrative Law, § 4.38, p 244.



                                                -22-
        Accordingly, 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. To be clear, however, giving due deference to agency fact-finding 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.

                                        E. DISCUSSION

                      1. LIKELIHOOD OF SUCCESS ON THE MERITS

        We hold that even giving due deference to the DHHS and the Governor, we cannot
conclude that the Court of Claims erred by finding that plaintiffs had demonstrated a likelihood
of success on the merits at this stage of the proceedings with respect to their claim that the
emergency rules were procedurally invalid.20 The gist of defendants’ position that emergency
rules had to be promulgated is set forth in the introductory paragraph of their brief on appeal:

               Michigan undisputedly faces a youth vaping crisis, and each day that
       passes, this crisis is causing immediate and lasting harm to the public health of
       this state. E-cigarette use among high school and middle school students
       continues to skyrocket at alarming rates. And kid-friendly flavored vaping
       products targeted to hook children on nicotine continues to present a grave public
       health emergency in our state. Nicotine is highly addictive and negatively impacts
       the developing brain. Research shows that youth who use such products are
       significantly more likely to start smoking combustible cigarettes—
       notwithstanding the documented and well-known negative health consequences
       associated with the use of cigarettes. [Emphasis added.]

        Again, MCL 24.248(1) provides that “[i]f an agency finds that preservation of the public
health, safety, or welfare requires promulgation of an emergency rule without following the
notice and participation procedures required by [MCL 24.241 and MCL 24.242] . . ., the agency
may dispense with all or part of the procedures . . . .” We construe this language to allow for the
promulgation of emergency rules but only if compliance with APA notice, hearing, and
participation procedures will prevent an agency from being able to preserve the public’s health,
safety, or welfare. The evaluation requires contemplation of evidence showing the effect on the
public health, safety, or welfare if enforcement of a proposed rule is delayed during the
timeframe necessary to comply with notice, hearing, and participation procedures. Evidence of
the events or circumstances that would likely transpire during the period of delay needs to be
assessed for purposes of determining whether the public health, safety, or welfare would be
sufficiently compromised so as to constitute an emergency and justify promulgation and


20
   But, as noted earlier, we do not believe that “procedural” invalidity is the proper
characterization.



                                               -23-
enforcement of emergency rules. The number of individuals whose health, safety, or welfare
would be affected during the period of delay and the nature and seriousness of the impact on
those individuals would be key factors to consider.

        We think it would be helpful to provide a hypothetical, albeit a very simplistic,
generalized one. If a delay in promulgating and enforcing a rule to satisfy APA notice and
participation procedures would result in harm to 3% to 5% of the population, which would
otherwise not have occurred without the delay, but the harm was fairly minor, it would be
reasonable to conclude that the preservation of the public health, safety, or welfare would not
require promulgation of an “emergency” rule without following procedural safeguards. If that
hypothetical is tweaked so that the harm is elevated to likely death, it would be reasonable to
conclude that the preservation of the public health, safety, or welfare would require promulgation
of an “emergency” rule without following procedural safeguards. If we return to minor harm
being involved but with 90% of the population being affected, an “emergency” rule would likely
be justified.21

        In the instant cases, defendants presented evidence that would lend support for a
determination that use of e-cigarettes or vapor products by minors is an ever-worsening and
serious public health concern and that flavored nicotine vapor products are at the forefront of
driving and exacerbating the problem and leading youths to future nicotine addiction.
Prohibiting altogether the sale and distribution of flavored nicotine vapor products would
ostensibly curb youth vaping trends to some extent. Plaintiffs countered defendants’ evidence
with testimony by expert Amelia Howard that called into question the studies that defendants
relied on.

        Giving due deference to defendants’ factual finding that the preservation of the public
health, safety, or welfare required the promulgation of emergency rules absent notice and
participation procedures, we nonetheless cannot conclude that the finding is reasonable. The
case did not present a choice between two reasonably differing views on whether an emergency
existed. Defendants did not, in any form or fashion, tailor the evidence or their arguments to the
period of delay that would have occurred if notice, hearing, and participation procedures had
been undertaken. Defendants did not present evidence indicating, showing, suggesting, or giving
an opinion on: the number of youths who could be expected to start vaping for the first time
during the period of delay because flavored nicotine vapor products remained on shelves; the
danger of those first-timers becoming addicted to nicotine based solely on the use of flavored
nicotine vapor products during the period of delay; and whether youths already using flavored
nicotine vapor products would have a decreased chance of a healthier or addiction-free outcome
if there was a period of delay.22 Bluntly stated, defendants did not produce evidence that an
emergency situation existed such that a period of delay would make any relevant difference in
preserving the public’s health, welfare, or safety. In sum, on the basis of the evidence presented


21
     The percentages used in our hypotheticals are for illustration purposes only.
22
  The equation should also involve consideration of the effect, if any, of 2019 PA 18, and
whether, if there was no delay, any youths would turn to regular cigarettes.



                                                 -24-
at this stage of the proceedings, we agree with the Court of Claims that plaintiffs are likely to
succeed on the merits regarding their shared request that the emergency rules be declared invalid.
Defendants will still have the opportunity to attempt to gather the necessary evidence when the
merits of plaintiffs’ lawsuits are litigated.23

                                   2. IRREPARABLE HARM

        The Court of Claims found that plaintiffs had carried their burden of demonstrating
irreparable harm. With respect to ACC, the Court of Claims determined that it had presented
evidence of loss of goodwill and competitive position in the marketplace, which constituted
irreparable harm because of the difficulty in calculating damages and because a significant loss
of goodwill cannot be compensated by an award of economic damages. The Court of Claims
found that the emergency rules effectively banned ACC from using its tradename and branding,24
caused ACC to lose a significant portion of its sales, resulted in store closings, and were
destroying the business. With respect to Slis, the Court of Claims determined that he had
demonstrated irreparable harm because the emergency rules caused Slis to shutter his business,
resulted in his customers obtaining flavored vaping products from Wisconsin, and will lead to
the loss of his entire business.

        Defendants argue that, in regard to ACC and lost goodwill, the Court of Claims erred on
the issue of irreparable harm because ACC did not make a particularized showing that
irreparable harm would in fact flow from rebranding itself to the extent necessary to comply with
the emergency rules. Defendants contend that half of ACC’s online sales occur out of state,
which is beyond the reach of the emergency rules, and that the emergency rules would only
temporarily bar ACC’s misleading advertising practices as to the online sales in Michigan.


23
   We do question the reasoning of the Court of Claims that defendants had not shown the
existence of an emergency because the studies, reports, and surveys they relied on were old and
stale. The age of the studies, reports, and surveys did not necessarily mean that there was not a
present, ongoing emergency, although current information would provide stronger evidence. We
note that the Governor cited a 2019 study regarding the continuing increase in youth vaping in
her certificate of need for extension of the emergency. Additionally, the Court of Claims, citing
federal cases and pointing to the older studies originally relied on by defendants, stated that an
agency cannot create an emergency by way of its own failure to act in timely fashion. We reject
this approach in applying MCL 24.248(1) and note that the federal rulemaking statute has a
general “good cause” requirement with respect to skipping procedural safeguards, 5 USC
553(b)(3)(B), which is not contained in MCL 24.248(1). An unreasonable delay in seeking to
promulgate emergency rules does not mean that there is no continuing or worsening emergency.
Moreover, if emergency rules are needed, even though they should have been promulgated
earlier, the people of our state are entitled to protection and should not be put at risk because the
DHHS moved too slow.
24
  Rule 3(1) of the emergency rules bars a retailer from using fraudulent and misleading terms in
selling vapor products, and Rule 3(2) defines fraudulent or misleading terms as including, in
part, the word “clean.”



                                                -25-
Defendants maintain, therefore, that ACC failed to show that it would have to rebrand itself
entirely or that the extent of the required rebranding “would in fact cause loss so certain,
pervasively destructive, and incalculable as to be irreparable.” With respect to Slis, defendants
argue that he failed to show that loss of his business was in fact the necessary consequence of the
emergency rules. Defendants contend that the emergency rules still left room for Slis to make
sales, considering that Slis could sell flavored nicotine vapor products outside of Michigan, that
he could still sell tobacco-flavored vapor products and flavored vapor products lacking nicotine
in Michigan, and that the emergency rules were only temporary.

         In Thermatool Corp, 227 Mich App at 377, this Court discussed the irreparable-harm
factor, observing:

                In order to establish irreparable injury, the moving party must demonstrate
       a noncompensable injury for which there is no legal measurement of damages or
       for which damages cannot be determined with a sufficient degree of certainty.
       The injury must be both certain and great, and it must be actual rather than
       theoretical. Economic injuries are not irreparable because they can be remedied
       by damages at law. A relative deterioration of competitive position does not in
       itself suffice to establish irreparable injury. [Citations omitted.]

        In Atwood Turnkey Drilling, Inc v Petroleo Brasileiro, SA, 875 F2d 1174, 1179 (CA 5,
1989), the Fifth Circuit of the United States Court of Appeals observed:

                Petrobras directs our attention to cases holding that a preliminary
       injunction is an inappropriate remedy where the potential harm to the movant is
       strictly financial. This is true as a general rule but an exception exists where the
       potential economic loss is so great as to threaten the existence of the movant's
       business. [Citations omitted.25]

The threat of bankruptcy and the possibility of going out of business can constitute irreparable
harm. Id.

       As an initial point and as argued by Slis, there is a question whether plaintiffs would have
any claim for money damages against the state defendants in light of immunity principles. See
Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). We do note that ACC
alleged an unconstitutional takings claim against defendants and seeks $840,500 in just
compensation for lost product. But this claim is for loss of product only and not loss of business.
The Court of Claims did not speak to the matter, and we decline to resolve the issue because it is
unnecessary for us to do so.

       With respect to ACC, defendants’ arguments only address the goodwill and rebranding
issue connected to ACC’s having the word “clean” in its name. But the Court of Claims also


25
  Decisions of lower federal courts are not binding on this Court, but may be considered for their
persuasive value. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).



                                               -26-
based its decision on the significant loss of sales, store closings, and the possible collapse of the
business, all of which found factual support in the record. “When an appellant fails to dispute
the basis of a lower court's ruling, we need not even consider granting the relief being sought by
the appellant.” Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015). On this basis
alone, we can affirm the finding of irreparable harm in regard to ACC.

        Moreover, the Court of Claims was correct that “[t]he loss of customer goodwill often
amounts to irreparable injury because the damages flowing from such losses are difficult to
compute.” Basicomputer Corp v Scott, 973 F2d 507, 512 (CA 6, 1992). Whether “the loss of
customer goodwill amounts to irreparable harm often depends on the significance of the loss to
the plaintiff’s overall economic well-being.” Apex Tool Group, LLC v Wessels, 119 F Supp 3d
599, 610 (ED Mich, 2015) (quotation marks and citation omitted).26 Defendants argue that there
was an evidentiary failure in regard to goodwill because ACC did not show any particular harm
due to the loss of goodwill or that rebranding would not have been successful. Defendants’
position, however, demands too much of ACC and is the very reason that loss of goodwill can
constitute irreparable harm, i.e., the difficulty in measuring harm. David Haight of ACC testified
that their products were branded with the ACC name, that the ACC name had been used for ten
years, including online, and that ACC’s customers knew and had become familiar with the ACC
name.

        With respect to both ACC and Slis, defendants’ contention that the harm is only
temporary misses the mark given that the emergency rules have now been extended another six
months and that the plaintiffs presented evidence indicating that the businesses were in financial
distress and danger even under the initial six-month period that the emergency rules were in
effect. Furthermore, although defendants maintain that the DHHS has indicated that the
emergency rules do not prohibit the sale or transportation of flavored nicotine vapor products to
persons outside of Michigan, the rules themselves do not specifically exempt such activity. And
even if that is the case, there is no indication that online sales of flavored nicotine vapor products
outside of the state would prevent the collapse of the businesses. In regard to Slis, he testified
that the emergency rules were resulting in a large loss of customers because most of them used
flavored vapor products. He also indicated that his inventory was deteriorating and would
definitely expire if an extension of the emergency rules was ordered, which has now occurred.



26
   Although the discussion was not in the context of analyzing the propriety of a preliminary
injunction, this Court in Unibar Maintenance Servs, Inc v Saigh, 283 Mich App 609, 631; 769
NW2d 911 (2009), touched on the difficulty in proving certain damages:
               [T]he purpose of compensatory damages, which is to make the plaintiff
       whole, indicates that exemplary damages may be construed as appropriate for
       injuries to a corporation that cannot be measured or estimated in monetary terms.
       Clearly, a loss of reputation as a skillful company is unquantifiable and
       recoverable as exemplary damages, as may be a loss of goodwill, or any damage
       to other types of company reputation amongst either employees or customers.
       [Citations omitted.]




                                                -27-
Slis further testified that he would have to close the doors to the business and file for bankruptcy
if the emergency rules remained in force. This evidence sufficed to support the determination by
the Court of Claims that Slis would suffer irreparable harm if a preliminary injunction did not
issue.

       In sum, the Court of Claims did not clearly err in concluding that both Slis and ACC
would sustain irreparable harm if the emergency rules were not enjoined.

                                 3. BALANCING THE HARMS

        The Court of Claims concluded that the harm that would befall plaintiffs if no
preliminary injunction were issued would outweigh the harm that would occur to defendants
should a preliminary injunction be issued. The Court of Claims indicated that plaintiffs had
demonstrated a risk of irreparable harm absent a preliminary injunction, which was greater than
any risk of harm to defendants with an injunction in place, especially where defendants had not
articulated that they would suffer any harm. The Court of Claims also stated that defendants
would not suffer any harm if they were forced to comply with the APA’s notice and participation
procedures before implementing the rules regulating vapor products. The Court of Claims
concluded that “the harm to defendants as state entities is neither compelling nor noteworthy.”

        Defendants essentially argue that a preliminary injunction enjoining enforcement of the
emergency rules harms them by preventing defendants from carrying out their constitutional and
statutory duties to protect and preserve the health, safety, and welfare of the people of this state,
which in turn results in harm to the people themselves and the state’s financial health. The
preliminary injunction does not undercut the overall ability of the DHHS to promulgate valid
emergency rules that meet the requirements of MCL 24.248(1), or from taking other appropriate
steps to preserve the public’s health, safety, and welfare. Under defendants’ rationale, the harm
to them would always trump the harm to a party challenging an emergency rule because
defendants could claim that an injunction prevents them from protecting the public.27 Also, the
Legislature has already stepped in and taken some governmental action on the youth vaping
“crisis” by amending the YTA, 2019 PA 18. We conclude that the Court of Claims did not
clearly err regarding its finding on the balancing of harms.

                                  4. THE PUBLIC INTEREST

       The Court of Claims concluded that the public-interest factor favored neither plaintiffs
nor defendants, finding compelling public interests on both sides of the issue. On one hand, the
Court of Claims explained, an unknown number of minors would likely start using flavored
nicotine vapor products. On the other hand, if the emergency rules were enforced, there was
evidence that adult users of flavored vapor products would return to using combustible tobacco
products, which the Court of Claims characterized as “more harmful” than vapor products.


27
   To the extent that defendants’ argument entails consideration of harm to the public, we believe
that said consideration pertains to the last factor that we shall examine—impact on the public
interest.



                                                -28-
        Defendants argue that the Court of Claims erred because the evidence was overwhelming
regarding the health dangers of nicotine addiction and that youths were starting down the path to
nicotine addiction through the use of flavored nicotine vapor products, while plaintiffs’ evidence
that depriving adults of flavored nicotine vapor products would return many of them to smoking
regular cigarettes was anecdotal and statistically unsupported.

        Defendants are correct that they presented a plethora of evidence and studies showing the
increase in and dangers of youths using flavored nicotine vapor products. As noted by the Court
of Claims, however, plaintiffs “produced . . . literature citing improved health outcomes for
former combustible tobacco users who switch to vaping products.” The testimony of plaintiffs’
witnesses also supported the view that the end of flavored nicotine vapor products would drive
many users back to smoking cigarettes. We cannot conclude that the Court of Claims clearly
erred in finding this factor neutral, but even if there was error and the factor should have been
found in favor of defendants, reversal would still not be warranted considering that the other
three factors favored the issuance of a preliminary injunction.

                                       V. CONCLUSION

        We hold that the DHHS and the Governor are entitled to due deference with regard 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 on the basis
of the evidence presented by the parties. 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 factor regarding the public
interest did not. We hold that the Court of Claims did not abuse its discretion by granting
plaintiffs’ motions for a preliminary injunction.28

       We affirm. Having fully prevailed on appeal, plaintiffs may tax costs under MCR 7.219.



                                                            /s/ Jane E. Markey
                                                            /s/ Kathleen Jansen
                                                            /s/ Mark T. Boonstra




28
   Given our ruling, it is unnecessary to address the other various issues and arguments raised in
this consolidated appeal.



                                              -29-
