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Criminal Case in Flint Water Crisis Puts Governors on Notice

Jan. 14, 2021, 8:44 PM

Criminal charges against former Michigan Gov. Rick Snyder and other state officials for their roles in the Flint water crisis will put state governors nationwide on notice.

Legal observers say that’s because the charges, announced Wednesday, show governors could be held to an unprecedented level of accountability for drinking water quality in their states.

Environmental justice advocates say such charges are long overdue for cases like Flint, where public officials and government staff take actions that can directly harm the public—particularly more vulnerable communities.

The charges mean that all state governors should be aware that they can be held legally liable for upholding drinking water standards in their states, and that they can’t look away while their residents are being poisoned, said Cynthia Lindsey, a Detroit attorney involved in a class action related to the Flint water crisis.

“It sets a new precedent for state and federal water regulators that they better be cognizant of the fact they will NO longer be able to hide under the shield of Governmental Immunity,” she said in an email.

‘Very Specific’

Snyder (R) was arraigned Thursday on two misdemeanor charges of willful neglect of duty in state court in Genesee County, Mich. Eight other former government officials were also charged, including some with felony perjury and involuntary manslaughter.

The complaint argues Snyder and the other officials were aware of the lead poisoning occurring in Flint and didn’t responsibly execute their duties as public officials, said Robert Sedler, a retired constitutional law professor at Wayne State University.

But Sedler questioned whether the Flint charges would set widespread legal precedent. He said the governor was in a unique situation, and had a “major responsibility” to act because the state was directly involved with Flint water following his appointment of an emergency financial manager for the city in 2011.

“The Flint water crisis was very specific to Michigan,” he said.

‘Racial Reckoning’

Regardless of precedent, the charges are an example of the “racial reckoning underway in the country,” said Vermont Law School professor Patrick Parenteau. Democratic attorneys general have played an important role in driving that effort, he said.

“Activists have been saying for decades that some of these issues are so egregious that there should have criminal implications,” said Peggy Shepard, co-founder of WE ACT for Environmental Justice. “Certainly there have been civil cases where penalties are pursued but criminal violations just haven’t been.”

The Flint case has been a sore spot for environmental justice advocates. They argue that better funded environmental groups didn’t make lead contamination concerns a priority, and still haven’t made low-income communities and communities of color a priority.

“It was a failure of government, but it was also a failure of the advocacy community because Flint wasn’t an elite community,” Shepard said.

The Flint disaster has “created a new cadre of environmental activists,” said Michigan Sen. Minority Leader Jim Ananich, who pushed the U.S. government to expand revolving loan funds for state and local water infrastructure improvements. Those activists also pushed other states to be more vigilant about fluorinated chemicals in drinking water, and increased the effort to get lead out of schools and to get filters on water fountains.

“That is 100% because of Flint,” Ananich (D) said. “All of us basically assume that when we turn our tap on in America we’ll be fine. We’re realizing that we must be much more vigilant, no matter where we live. That’s the positive that came out of Flint.”

‘Dangerous Precedent’

Greater accountability for state governors could lead to unintended consequences, observers say.

If Snyder is convicted, state governors may try to avoid knowing too many details about the status of water systems in their state so they can’t be held liable for knowing about a problem and not acting on that knowledge, said Brent Fewell, founder of Earth & Water Law in Washington.

“I think it sends a pretty dangerous precedent, to be honest with you,” he said. “Are we expecting the governors to know every single one of those cases and what to do? No. They hire people they rely upon—experts.”

However, Seth Kerschner, an attorney with the White & Case law firm, was skeptical that pursuing a criminal case could have unintended consequences.

“Local water authorities typically have a pretty clear requirements with regard to public involvement and oversight of decision-making and there are, in most places, public meeting requirements and local public records laws,” Kerschner said. “Those would make it hard for government officials to drive their decision-making underground.”

The charges could be a “wake-up call” that leads governors to make sure that their staff have a better understanding of unintended consequences, said Alan Roberson, executive director of the Association of State Drinking Water Administrators.

“Some governors may choose not to know, but I know our members know, and they take it seriously,” Roberson said.

—With assistance from Ellen M. Gilmer and Alex Ebert.

To contact the reporters on this story: Bobby Magill at bmagill@bloombergindustry.com; Dean Scott in Washington at dscott@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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