Flint Water Crisis: Unresolved Questions and a Time for National Reflection

Feb. 19, 2021, 9:01 AM

The trauma of the Flint water crisis, one of the greatest preventable humanitarian crises in American history, has never receded from the lives of the residents of Flint, Mich. The return of the crisis in the national news, however, gives us a time to reflect.

A $641 million federal civil class action settlement has been preliminarily approved, ostensibly the law’s best effort to make the victims “whole.” On a different legal front, nine former public officials, including former Michigan Gov. Rick Snyder (R), have been indicted on 41 criminal charges.

How should America ultimately understand the legacy of the crisis? A foundational truth is that systems of spatial-structural racism lie at the roots of the Flint water crisis. I provided testimony to the Michigan Civil Rights Commission’s hearings on the role of race in the tragedy.

The commission’s report concluded: “Our review of Flint’s history clearly establishes that past racism played an important role in creating the conditions that allowed the water contamination crisis to occur…. Race, racialization, racism (particularly spatial), and de facto discrimination are the heart and soul of this crisis.” These problems remain unaddressed.

The Role of Spatial-Structural Racism

Decades of redlining, deindustrialization, White flight, collapsing housing values and endemic poverty inevitably led to municipal stress in Flint and in many other legacy cities. With a structural deficit and falling revenues, the city was forced to cut its expenditures faster than its revenues fell. This is impossible.

But rather than seeing this municipal distress as evidence of spatial-structural racism, Snyder and the Republican Legislature applied a racialized lens of collective blame and imposed an anti-democratic regime of emergency management as their solution to the city’s problems.

The suspension of democracy in Flint only heightened the vulnerability of its citizens. At a time of financial distress, proponents of the Karegnondi Water Authority (KWA) opportunistically acted to gain approval of a new pipeline. KWA manipulated rules limiting the capacity of the financially distressed city to borrow money by manufacturing an administrative consent order relating to a lime sludge lagoon and bootstrapping this new lending authority to justify financing for an unnecessary and redundant water supply.

After manipulating state finance rules for private ends, KWA failed to engage in full cost accounting for the project and raise the external funds needed to upgrade Flint’s ancient water treatment plant. With bond money to pay for Flint’s share of the pipeline, but not for the water treatment plant, the city cannibalized the funds it was paying for clean water from Detroit to pay for treatment plant upgrades, and began drawing water directly from the Flint River.

Improvements at the plant were inadequate to meet the needs when water began to flow. The rest of the story is well known—the poisoning of an entire city and irreparable lead poisoning of the city’s infants and children.

Unresolved Issues and Unanswered Questions

That much is known, but there are a number of unresolved issues. One is the actual role of Snyder and other prominent public officials in the crisis.

The recent criminal indictments may be the last best chance to answer many unanswered questions about what the governor knew and when he knew it concerning the use of the Flint River as a water source and the growing public health crisis. Serious questions also remain about a potential cover up and delay in responding to a growing and deadly Legionella outbreak, motivated by a desire to avoid even greater political backlash over the water crisis.

Additional concerns remain over the adequacy of the proposed settlement of federal civil class action claims. Without doubt, the $641 million settlement is significant. It may reflect the most that law is capable of doing. Nevertheless, there is no way it can make the victims whole, particularly the children suffering irreparable damage from lead poisoning.

The state Legislature should address these concerns from a life-cycle perspective, anticipating and providing for the needs of these children as they grow and age. These children are victims of state violence. The state has a life-long obligation care for them.

Origins of the Crisis Need Examination

Surprisingly, insufficient attention has been paid to the origins of the crisis—the KWA itself. There was apparently an an inappropriately cozy relationship between KWA and state officials, particularly at the Michigan Department of Environmental Quality, throughout the approval process. Questions remain about political campaign contributions to Jeff Wright, simultaneously KWA CEO and Genesee County Drain Commissioner, and KWA contractors.

Questions also remain about allegedly false and misleading statements made in the documentation for the sale of bonds, as well as the identity of bond purchasers. If public officials had acted in the public interest, rather than the private interest of KWA, there never would have been a Flint water crisis.

Sadly, a clear and present danger remains for the residents of Flint and all other legacy cities in Michigan. The emergency manager law that was roundly criticized at the time of the crisis remains on the books today, without a single revision or amendment.

The spatial-structural racism called out by the Michigan Civil Rights Commission remains as toxic and dangerous as ever. Like a horror story in search a sequel, other tragedies like the Flint water crisis are still too easy to imagine.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Peter J. Hammer was named the A. Alfred Taubman Professor of Law at Wayne State University Law School in fall 2018. Hammer has taught at Wayne Law since 2003 and is the director of the Damon J. Keith Center for Civil Rights at Wayne Law. He testified at the Michigan Civil Rights Commission’s hearings on the role of race in the tragedy.

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