How can the government ever make up its wrongs to the residents of Flint? And how likely is it that it actually will?
For 18 months, toxic water flowed through Flint’s pipes, exposing residents to lead, carcinogens, E. coli, and deadly bacteria—the result of a state emergency manager’s 2014 decision to switch the city’s water supply to the salt-laden Flint River without using an anti-corrosion agent.
There are dirty hands at every level of government, and an ocean of damages: Ten people dead from a Legionnaire’s outbreak likely linked to the water; thousands of children put at risk of lead poisoning; countless reports of hair loss, high blood pressure, and rashes; $1.5 billion dollars in corroded pipes and water heaters.
As investigations proceed into why local, state, and federal officials failed to prevent the problem–and why they failed to act long after they knew of it—residents, leaders, and advocates are calling on state and federal governments for relief and restitution in a variety of ways.
Wednesday, the American Civil Liberties Union of Michigan, the Natural Resources Defense Council, a local religious non-profit, and Flint resident Melissa Mays filed suit against a number of city and state officials, arguing that they are violating the federal Safe Drinking Water Act, even now that Flint has switched back to the Detroit Water and Sewerage Department, its original water source.
“The damage done to the city’s pipes from the Flint River water means that lead will continue to contaminate the city’s drinking water,” the lawsuit argues. It asks the court to order officials to follow federal requirements for testing and treating water to control for lead, and to order all lead water pipes be swiftly replaced at no cost to Flint residents.
Other lawsuits have also emerged. Advocates and residents have filed at least three against the city of Flint, the state of Michigan, Governor Snyder, and a handful of officials (some of whom have already resigned from their posts) seeking damages for injuries and health issues. Two of those suits seek class-action status.
There are a number of hurdles that these lawsuits face to be heard in court, but the biggest one is sovereign immunity, the legal doctrine that says the government can’t commit a legal wrong. In Michigan, sovereign immunity protects top-brass state employees from most cases of negligence, so long as they were performing their duties. It’s the reason why relatively few lawyers are clamoring to represent Flint residents in individual or class-action lawsuits; the state is extremely well-armored.
However, the Safe Drinking Water Act waives this immunity, so it’s very possible that this latest lawsuit will see its day in court. And one of the other lawsuits filed in November finds its footing in the federal constitution, arguing that state and local government infringed on Flint citizens’ civil right to “bodily integrity.” State government can’t claim sovereign immunity there, either. A "forward-thinking" judge might be open to that kind of argument, Jean Eggen, a law professor specializing in toxins at Delaware Law School, told Reuters.
Responding to requests for aid from Michigan Governor Rick Snyder, President Obama has promised $80 million to the state, mainly to help fix Flint’s water infrastructure and restore drinking water to safety. That’s on top of $5 million that the President directed to Flint a few days earlier, when he declared the crisis a federal emergency. It’s up to Snyder’s administration to determine how to distribute the new pot of funds.
“The residents of Flint could benefit greatly from that type of money,” Flint Mayor Karen Weaver told the Detroit Free Press. “We are waiting to see how much of the $80 million will be allocated to the city of Flint and how much of it will go elsewhere, but it’s a step in the right direction.”
In addition to pledging $28 million in state funds to helping Flint (and calling in the Michigan National Guard), Governor Snyder has also appealed President Obama’s rejection of a federal disaster declaration for Flint—which, if made, could open up another $96 million. It seems unlikely that President Obama will bend to Snyder’s appeal, but he could still seek other sources of federal funding to support the city’s recovery.
Besides sending money to the region, the feds could also press Congress to enact a no-fault compensation plan. This would settle all claims by the citizens of Flint and fully compensate them for death, injury, and property damages—without putting much emphasis on who is liable. After the World Trade Center attacks in 2001, Congress established the September 11th Victim Compensation Fund, which paid out nearly $7 billion. A similar fund was established days after a disastrous dam break during the Ford administration.
The chances of this happening for Flint? Pretty slim, according to Robert L. Rabin, a Stanford law professor and an expert on torts and compensation schemes. Even when government seems clearly liable, establishing these kinds of plans “is just really difficult as a legislative policy matter,” Rabin says, especially given Congress’ present gridlock. For example, despite calls for compensating victims of Hurricane Katrina, no such plan was ever established—even after the U.S. Army Corps admitted that massive flaws in the design and construction of its levees were what caused widespread destruction in New Orleans. The political will simply wasn’t there. And even if it is today in the case of Flint, Congress’s gridlock is awfully tight.
Incredibly, Flint water customers have never stopped being charged throughout this crisis—to the tune of $100-$200 per month. Michigan Attorney General Bill Schuette has said that he is working with the department’s Consumer Protection Division to pursue ways of compensating Flint residents for what they’ve paid for the toxic water.
"I would certainly not bathe a newborn child or a young infant in this bad water, and if you can't drink the bad water you shouldn't pay for it," Schuette told reporters Monday.
How far back will Flint bill-payers be refunded? “That’s what we’re working on determining at this point,” Andrea Bitely, Director of Communications for the Michigan Attorney General’s Office, tells CityLab. “We are looking at it like we would any other defective product as to how we can remedy the situation.”
But Flint’s toxic water was much more than a “defective product.” Mounting evidence shows it was the outcome of grave failures by officials at all tiers of government (many of whom have already resigned, or been suspended). Beyond compensation and relief for the harm that’s already done, there is an urgent need to consider the policies and regulations that pushed Flint down this path.
Why, for example, was Flint forced to sacrifice drinking water safety to balance its budget? Why didn’t the federal EPA act on the Michigan Department of Environmental Quality’s failure to include an anti-corrosion agent? Why, for months, were regulators more concerned about Flint as a public-relations concern than as a public health crisis?
There are no clear answers to these questions yet (though environmental racism may be one explanation). But as the crisis in Flint gets Americans from California to Ohio wondering what’s in their own pipes, and just what shape those pipes are in, now is the time for legislators and regulators to make sure this very preventable crisis never happens again—and to try to pick up the pieces of a city’s shattered trust in government.