FLINT OF OUTRAGE.

Author:Massaro, Toni M.
Position:Flint, Michigan water contamination
 
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INTRODUCTION

Government officials (2) in Michigan engaged in shocking acts. In April 2014, they replaced safe public water supplied to Flint from Lake Huron with improperly treated water supplied from the polluted Flint River. (3) Contact with certain pollutants caused leaching in the pipes, and resulted in seriously contaminated water. The officials did this despite evidence that the Flint River water was unsafe, (4) despite the availability of the safe Lake Huron water source, (5) and despite a City resolution to secure future safe water from a new, alternative source as early as 2016. (6) The surrounding communities--which, unlike Flint, are predominantly white communities--continued to use the uncontaminated Detroit water. (7) Officials then intentionally concealed data and made false statements in an attempt to downplay the health dangers posed by using Flint's tap water, (8) and forwent treatment of the contaminated water that allegedly would have cost only $150 per day. (9) Consequently, scores of Flint residents indisputably were exposed for eighteen months to water with unsafe lead levels and other corrosive elements that inflicted health and property damage. (10) Indeed, the problems persisted into late 2016 when a federal district judge concluded residents were still drinking contaminated water and ordered government officials to immediately provide them with a minimum of ninety-six half-liter bottles of water per week and offer instructions in multiple languages regarding the lead levels of city water and how to install filters. (11)

These actions prompted criminal charges (12) and civil lawsuits (13) that alleged, inter alia, that the government actions violated Flint residents' substantive due process and equal protection rights. Plaintiffs sought an order declaring that defendants' conduct was unconstitutional, as well as injunctive relief, monetary damages, punitive damages, and attorneys' fees. (14) This Article addresses the constitutional claims raised against Michigan and various state actors in Mays v. Snyder, (15) and shows why the Flint nightmare illuminated both the strengths and many weaknesses of constitutional law as applied to complex cases like this one.

The United States Supreme Court has consistently refused to constitutionalize affirmative rights to basic human needs such as food, medical care, education, and housing. (16) Constitutionalizing a right to clean water thus would be audacious. Knowing this, plaintiffs asserted ostensibly more restricted liberties: a right to bodily integrity and a right to freedom from third-party harms that were violated when the government knowingly funneled untreated, harmful water to them. (17)

But even these narrower claims are quaky and would have wide implications, given the prevalence of contaminants in water supplies in the United States, and the complexities of setting water quality standards. Courts thus may be chary of imposing elevated scrutiny on government decisions in this area of environmental law.

The "shocks the conscience" due process test likewise faced obstacles. The test is rarely satisfied and often critiqued for its subjectivity. (18) Courts are loath to second-guess official decisions based on this amorphous standard.

Finally, the equal protection claims were doctrinally fragile. The fateful government decisions involved a common public water source of an entire town. Multiple actors--not one with a clear, coherent, and hostile intent to harm all Flint residents--contributed to the water contamination crisis. Courts may be reluctant to confer suspect class treatment on "all residents" even though the community is poor, politically vulnerable, and predominantly composed of racial minorities.

And yet, the Flint water crisis was outrageous. Clean water is a basic human need. Flint water was grossly contaminated. This was a man-made disaster that could have been avoided with a minimum of foresight and at relatively little expense. (19) Flint residents had no meaningful political power over the fateful decisions. (20)

Not all outrageous government acts violate the Constitution, but the ones at stake in the Flint crisis did. That every thing was wrong in Flint should not have meant that nothing was, as a matter of constitutional law.

This Article proceeds as follows. Part I describes the facts surrounding the Flint water crisis. Part II describes the due process and equal protection theories advanced by the plaintiffs in Mays, and the state actors' responses to them. Part III analyzes the plaintiffs' due process and equal protection theories, and outlines the virtues and weaknesses of each of them. It concludes that "thick rights" theories--ones that involve fundamental rights and suspect classifications--were not the best claims in this case. However, it maintains that government officials should have been held accountable under the "thin right" theory that their conduct shocked the conscience in particularly egregious, unconstitutional ways. Part IV discusses the wider implications of the shocks the conscience test for future cases in which poverty, race, and government ineptitude impose disproportionate environmental harms on vulnerable communities.

  1. FAILING FLINT

    Flint is a failing city. It suffers from a declining population, pervasive poverty, and very poor quality of life. In 1960, the population was over 200,000. (21) Today, fewer than 100,000 people reside there. (22) Over 40% of the population lives below the federal poverty line. (23) Crime rates are high. (24) Statistics that measure overall health are low. (25) Economic prospects are bleak. (26) And its multifaceted misery has a stark, racially disparate impact: over 50% of Flint residents are African American. (27)

    Flint's state and municipal stewards failed its residents in multiple ways. The failures were so glaring that the State took over emergency management of the city in 2011. (28) Yet these managers, too, failed Flint. The water crisis is a particularly sickening--in every sense--example of all of these failures.

    1. Water Supply History

      The City purchased its water system from a private owner in 1903. (29) In 1965, it contracted with the Detroit Water and Sewerage Department (DWSD) to provide its water. (30) Water provided by DWSD was properly treated for corrosion control. (31)

      The City also kept an emergency backup--the Flint Water Treatment Plant (FWTP)--to that water supply. The FWTP drew water from the Flint River, and was operated only four times each year to maintain its readiness. (32)

      In 2000, Flint's thirty-five-year contract with DWSD expired. It was thereafter renewed annually, subject to termination by either party. (33) Charges began to spike, with an average annual increase of over six percent. (34) The escalating cost of water aggravated Flint's already dire economic situation. In an effort to mitigate water costs, (35) or perhaps in an effort to stimulate the local economy with a new public works project, (36) the City looked for an alternative supply. It did so under the direction of its emergency managers. (37)

      Michigan has an Emergency Manager Law, (38) which divests locally elected officials of decisionmaking power and places a state-appointed emergency manager in charge. The law is triggered when, as was true in Flint, a municipality is in dire financial straits. (39) The emergency manager assumes the responsibilities of elected officials for the city and has dramatic powers over past, present, and future city contracts. (40)

      The appointment of an emergency manager complicates the assignment of accountability for key decisions and also raises serious questions of democratic authority. Not only were Flint residents given contaminated water, but they also had no real political say in the matter.

    2. From DWSD to FWTP

      In April of 2013, the City Council voted to approve the Flint emergency manager's decision to join the Karegnondi Water Authority (KWA) instead of DWSD. (41) KWA was created to provide a water supply pipeline from Lake Huron. (42) The City's decision to use KWA prompted DWSD to provide notice of intent to end its contract with Flint in April 2014. (43)

      The City of Flint and the City of Detroit, which were both under emergency management control during this time, could not agree on means of providing water service to Flint after April 2014 until KWA was fully operational. (44) Flint thus began using its emergency back-up water supplier, FWTP, on a full-time basis. (45)

      The switch to Flint River water was done without adequate preparation of staff, proper testing of the water, or proper plant upgrades. (46) Sampling of the water to assure it met applicable water safety standards was done improperly, leading to likely violations of the Safe Drinking Water Act (SDWA). (47)

      FWTP did not properly treat the water for corrosion under the standards outlined in 40 C.F.R. [section] 141.82. (48) The Michigan Department of Environmental Quality (MDEQ) erroneously decided the corrosion control standards set by the EPA Lead and Copper Rule and the Safe Drinking Water Act were not required of FWTP until after two six-month monitoring periods elapsed. (49) There were three main problems with FWTP's initial treatment after the switch to the Flint River supply was made. First, they failed to treat the water with an orthophosphate, which decreases corrosiveness and protects the natural mineral layer built over lead pipes that prevents leaching. (50) Second, they failed to properly monitor and treat the pH of the water, which decreased from 8 in December of 2014 to the more acidic value of 7.3 in August 2015; in comparison, the City of Boston maintains a pH of 9.6 as a part of its corrosion control plan. (51) Third, chloride based flocculants were added to a water source that already had a high concentration of chloride, which increased the corrosiveness of the water. (52)

      The residents of Flint immediately complained that the FWTP...

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