ESCAPING THE ABDICATION TRAP WHEN COOPERATIVE FEDERALISM FAILS: LEGAL REFORM AFTER FLINT.

• Author: Dana, David A.
• Position: Symposium Issue on David Caplovitz's 'The Poor Pay More'

TABLE OF CONTENTS Introduction 1330 I. The Drinking Water Regime in Theory and in Practice 1332 II. Why Do We Observe Abdication? 1340 III. The Relationship (or Lack Thereof) Between Information, Political Mobilization, and Law 1348 IV. Legal Reform as Institutional Re-Design: Moving Away from Cooperative Federalism 1349 V. The Role of Citizen Suits 1351 INTRODUCTION

Beginning in 2014, the residents of Flint, Michigan were poisoned by lead in their drinking water. (1) Federal, state, and local officials ignored citizen complaints about their drinking water, despite the fact that a university laboratory confirmed the presence of high levels of lead in the water in August 2015. (2) As a Task Force appointed by Michigan's governor concluded, "[t]he significant consequences of these failures for Flint will be long-lasting. They have deeply affected Flint's public health, its economic future, and residents' trust in government." (3)

Flint is one example of a larger phenomenon I label "the abdication trap." A great deal of health, safety, and environmental law in the United States comports with a model that has been dubbed "cooperative federalism," in which states are called upon to be regulatory partners with the federal government in the implementation of federal programs. (4) While much of the literature and the law of cooperative federalism focuses on federal-state relations, (5) the reality is that the key relationships often are not only between federal and state officials but also between state and local officials. Broadly speaking, the federal government delegates responsibility to the states, and the states delegate responsibility to a range of local entities. (6) With each delegation, there is supposed to be a commitment to ongoing supervision and, if need be, a reassumption of authority by the delegator from the delegate in order to meet the aims of the relevant regulatory regime. Especially in the environmental context, as with the Federal Safe Drinking Water Act, (7) citizen suits add another layer of complexity to governance.

This Article argues that, with respect to our federal regime for safe drinking water, what we observe is not cooperative federalism but rather a triple abdication: abdication of responsibility on the part of the federal, state, and local governments. (8) As a result, some localities inadequately test for or fail to address problems in drinking water, including problems with lead, as in Flint, Michigan. (9) The triple abdication of responsibility for addressing lead in water is in large part due to the lack of political will at the federal and state level to provide localities with the funding they realistically would need to upgrade their infrastructure to remove lead pipes. (10) The relevant actors do not want to know, or do, anything about such problems because there is simply not enough political will to secure the funding to solve them.

This Article argues that the best way to address the deficit in political will would be legal reforms in our safe drinking water regime that will provide those at risk of lead poisoning with clear, readily-understandable information regarding the risks they face. In particular, this Article proposes making not just local water authorities, but states legally responsible for testing water for lead and disclosing test results. In addition, the Article argues for water test results and other relevant information to be made available to residents in visually-powerful, interactive, on-line maps. Making states legally responsible and implementing new substantive requirements for testing and disclosure would help motivate and empower citizens to lobby for public funding and make citizen suit litigation a more effective tool to combat abdication. Prompted by the crisis in Flint, there have been calls for state-level reform, and some actual reform in Ohio, Michigan, Illinois, and California, (11) that suggest that the proposals in this Article, which would require legislation at the state level, might be politically achievable.

Part I of this Article reviews the current legal regime, which is governed by the Federal Safe Drinking Water Act and the Lead and Copper Rule, and the abundant evidence of abdication of responsibility within that regime. Part II addresses the question of why we see abdication of responsibility at the federal, state, and local levels, focusing on lead contamination's lack of political salience and hence the lack of political will as a primary explanation. Part III advocates measures to more reliably and effectively produce and disseminate information about lead in water directly to those who face risk of lead poisoning. Finally, the Article takes up some possible objections to its state-level, information-focused approach to reform.

1. THE DRINKING WATER REGIME IN THEORY AND IN PRACTICE

   Although the Federal Safe Drinking Water Act ("SDWA") (12) has been the subject of Congressional revisions since its initial passage in 1974, the basic structure has remained the same. "The 1974 law established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program." (13) Forty-nine states have assumed primary implementation and enforcement authority, and "[t]he state-administered Public Water Supply Supervision (PWSS) Program" has been and "remains the basic program for regulating the nation's water systems[.]" (14)

   States thus are the primary enforcers of the SDWA, but to achieve and maintain primacy under section 1413 of the SDWA, "states must adopt regulations at least as stringent as national requirements, develop adequate procedures for enforcement (including conducting monitoring and inspections), adopt authority for administrative penalties, and maintain records and make reports as the Federal Environmental Protection Agency ("EPA") requires." (15) As with all delegated authority arrangements, states, as the delegated enforcers of the SDWA, are not legally responsible or liable for substantive violations of the Act; the only liable parties are the "owners" and "operators" of "public water systems [that must] monitor their water supplies to ensure compliance with drinking water standards and to report monitoring to the states." (16) The state has obligations to the federal government as long as it remains the primary enforcer of the SDWA pursuant to a federal delegation of authority, but a state need not continue to occupy that role. (17)

   The SDWA not only gives a state authority to enforce the Act when the federal government has delegated primacy to it, but it also allows for federal inspections and administrative and civil enforcement actions against owners or operators of local water authorities, after providing the prescribed notice to the appropriate state officials. (18) In addition, the SDWA includes a citizen suit provision whereby any citizen may sue "any person... who is alleged to be in violation of any requirement prescribed by or under this subchapter." (19)

   In theory, then, there is both delegation and accountability in the SDWA regime, as the model of cooperative federalism requires: localities must report testing data and noncompliance to the states, and the states must report such information to the EPA. (20) Both federal and state governments can bring informal or formal enforcement actions, and the EPA retains the right to cancel its delegation of primacy to a state and become the primary enforcer of federal drinking water law in a state. (21) In theory, the involvement of three levels of government in the problem of drinking water contamination guards against failure at any one level of government. As a number of federalism scholars have argued, having multiple and even redundant sources of government regulation can help ensure that an objective is achieved, since failure by one or more sources can be checked by others. (22) In an ideal world, the SDWA regime would work such that, if localities failed to meet their responsibilities, there would be distinct checks: the states and, if the states failed to act as checks, the federal government.

   But in practice the SDWA regime does not operate at all like that, even though there are of course some federal, state, and local officials who work hard to safeguard the quality of drinking water and real improvements have been made in many localities. In actuality, to lesser or greater degrees in different parts of the Unites States, the SDWA regime resembles a collective abdication, rather than a cooperation, regime. (23) The federal government abdicates its responsibility for safe drinking water, essentially leaving the states and localities on their own. (24) The states--or at least some of them--then abdicate their responsibility for safe drinking water, leaving the matter to the localities. Finally, some localities abdicate their responsibility to provide truly safe water to the owners and operators of public water systems. As a result of this three-step abdication, some water consumers, especially in poor and rural communities, are deprived of something we should all agree they deserve as citizens of a comparatively wealthy nation, if not simply as human beings--water that is safe to drink. (25) Nor has there been effective citizen suit litigation to check the abdication by federal, state, and local actors. (26) Thus, as shown in Figure 1, the SDWA regime radically departs from the ideal-type of cooperative federalism.

   Figure 1. Expectations of Cooperative Federalism and the Corresponding Realities of Abdication Cooperative Federalism The Abdication Trap Effective federal oversight of states Federal abdication to states as regulators and localities as regulated entities Effective state oversight of localities State abdication to localities as regulated entities Localities as compliant regulated Localities' failure to comply with entities regulation NGOs/citizen...