<i> Comment: The Flint Water Crisis: A National Warning of Failing Infrastructure <i>

Marquette Bene;ts and Social Welfare Law Review Marquette Bene;ts and Social Welfare Law Review

Volume 19

Issue 1

Fall

Article 5

10-2017

Comment: The Flint Water Crisis: A National Warning of Failing Comment: The Flint Water Crisis: A National Warning of Failing

Infrastructure Infrastructure

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Part of the Disaster Law Commons, Elder Law Commons, Environmental Law Commons, and the

Water Law Commons

Recommended Citation Recommended Citation

Andrew Lawton, Comment: The Flint Water Crisis: A National Warning of Failing Infrastructure , 19 Marq.

Bene;ts & Soc. Welfare L. Rev. 85 (2017).

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COMMENT: THE FLINT WATER CRISIS: A NATIONAL

WARNING OF FAILING INFRASTRUCTURE

Andrew J. Lawton*

I look at the Flint, Michigan Water Crisis from a combined

perspective that broadens the scope of one of the worst manmade

environmental disasters in the history of the United States. The

goal of this examination is to bring attention to preventable

environmental catastrophes, and put a spotlight on the policies

and governing philosophies, which aggregated into neglect to the

health of the people of Flint. I briefly analyze Michigan’s

emergency manager law’s role in fostering the poor oversight that

allowed the crisis to spiral out of control. I then pivot to the

nation’s water infrastructure and regulatory environment at

large. Finally, I examine proposals of public policy for financing

the repair and removal of toxic lead pipes from other

municipalities. This paper highlights the dire consequences of

environmental degradation through lead and poorly managed

public utilities. It is my hope that such tragedies can be prevented

by an increased public awareness.

* Candidate for Juris Doctor, Marquette University Law School, May 2018.

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86 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

TABLE OF CONTENTS

I. INTRODUCTION ......................................................................... 87!

II. FLINT: A FAMILIAR URBAN STORY IN CRISIS ...................... 88!

III. BUREAUCRATIC FAILURE ..................................................... 91!

A.! Negligence on the Part of Michigan State

Government ................................................... 91!

B. The EPA Did Not Sound the Alarm ........... 97!

IV. CAUSES OF THE INSTITUTIONAL FAILURE .......................... 99!

V. PREVENTING FUTURE FLINTS ............................................. 102!

A. Immediate Relief .......................................... 102!

B. Solutions for the Future ............................. 104!

VI. CONCLUSION ........................................................................ 106!

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2017] THE FLINT WATER CRISIS 87

I. INTRODUCTION

The Flint water crisis has proven to be one of the nation’s

worst environmental disasters.

Thousands of Flint residents

have had inadequate access to water because of government

officials’ inability to properly treat the water supply being

diverted from the Flint river.

Many have been sickened, now

suffer from lead poisoning, or worse, fatally succumbed to

mistreated water.

This paper will focus on the legal and

bureaucratic mechanisms that allowed the crisis to unfold and

persist. In Michigan, particularly, the emergency manager law

the governor instituted to improve the state’s fiscal situation

allowed the crisis to go unnoticed and worsen.

This law allowed

the governor to suspend local and city governments across the

state, and appoint a single person with the authority to manage

all operations of the city.

Flint’s crisis, at least in part, stems

from a lack of care or accountability from emergency managers or

state officials.

After looking at the local perspective of Flint, this paper’s

focus will shift to the Environmental Protection Agency (EPA) and

the legal mechanisms that existed and failed to safeguard against

the poor decision making of Flint’s emergency manager. The EPA

was deterred by a dwindling allocation of funding and failed to act

when it had the clear authority to do so.

1. Mark Berman & Brady Dennis, Flint Water Falls Below Federal Lead Limits,

but Residents are Still Asked to Use Filtered Water, WASH. POST (Jan. 24, 2017),

https://www.washingtonpost.com/news/post-nation/wp/2017/01/24/flint-water-falls-

below-federal-lead-limits-but-residents-still-asked-to-use-filtered-water/?utm_

term=.d3a30cdab9df [https://perma.cc/44KU-BVX6].

2. Id.

3. See Christianna Silva, Flint Now: Water Crisis Could Result in Manslaughter

Charge for Michigan’s Top Medical Official, NEWSWEEK (Oct. 10, 2017),

http://www.newsweek.com/flint-now-water-crisis-could-result-manslaughter-charges-

michigans-top-medical-681779 [https://perma.cc/V5SK-7Z32]; see also Jen

Christensen et al., Flint Lead Poisoning: Living With Uncertainty, Long-Term, CNN

(Mar. 5, 2016), http://www.cnn.com/2016/03/04/health/flint-lead-exposure-long-term-

pain/index.html [https://perma.cc/9VQA-KU28].

4. Brie D. Sherwin, Pride and Prejudice and Administrative Zombies: How

Economic Woes, Outdated Environmental Regulations and State Exceptionalism

Failed Flint Michigan, 88 U. COLO. L. REV. 653, 683 (2017).

5. See id. at 682-83.

6. Id at 663.

7. Watchdog: EPA Delayed Emergency Order for 7 Months in Flint Water Crisis,

CHI. TRIB. (Oct. 20, 2016), http://www.chicagotribune.com/news/nation

world/midwest/ct-watchdog-epa-delay-flint-water-crisis-20161020-story.html [https:

//perma.cc/U6KW-SHUK]; Glenn Thrush & Coral Davenport, Donald Trump Slashes

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88 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

Finally, this paper will advocate for broadly overhauling the

funding and bureaucratic structure, which failed to safeguard the

people of Flint and perhaps many other communities nationwide,

underscoring the national imperative for governments at all

levels to be properly funded for the good of public health. The

people of Flint’s concerns over the lack of the most basic of all

human needs, clean water, have been largely ignored.

The

failure to properly address this crisis is a national failing that has

serious implications for other public health crises going forward.

II. FLINT: A FAMILIAR URBAN STORY IN CRISIS

On April 25, 2014, the city of Flint, Michigan switched its

water supply from Detroit to the Flint River to save the city a few

million dollars in costs while waiting for construction to finish on

a regional pipeline to supply water from Lake Huron.

Regulations to prevent contamination of the water supply were

already in place through policies like the Safe Water Drinking

Act, which every municipality is required to comply with.

Followed properly, these legislative acts have dramatically

improved drinking water quality since enactment.

But in Flint,

these regulations were not followed properly, and scores of people

have been sickened or lead poisoned, and thousands more lacked

basic water access.

The context for this bureaucratic failure is set by a common

story throughout the American Rust Belt.

Flint is a city

Funds E.P.A. and State Department, N.Y. TIMES (Mar 15, 2017),

https://www.nytimes.com/2017/03/15/us/politics/budget-epa-state-department-cuts.

html [https://perma.cc/58AG-P8MG].

8. Ryan Felton & Oliver Milman, Flint Water Crisis: Michigan Officials Ignored

EPA Warnings About Toxicity, THE GUARDIAN (Feb. 3, 2016),

https://www.theguardian.com/us-news/2016/feb/03/flint-water-crisis-congress-

michigan-officials-ignored-epa-warnings-lead [https://perma.cc/VK2B-HDT2].

9. Flint Water Crisis: A Timeline, MSNBC (Jan. 27, 2016), http://

www.msnbc.com/msnbc/flint-water-crisis-timeline [https://perma.cc/L4L9-79QJ].

10. See generally Safety of Public Water Systems, 42 U.S.C. § 300 (2010).

11. Celebrating a Public Protections Milestone: The 40th Anniversary of the Clean

Water Act, CTR. FOR EFFECTIVE GOV’T (Oct. 10, 2012), http://www.

foreffectivegov.org/clean-water-act-40th-anniversary [https://perma.cc/ TMV3-JCNV].

12. Merrit Kennedy, Led-Laced Water in Flint: A Step-by-Step Look at the

Makings of a Crisis, NPR (Apr. 20, 2016), http://www.npr.org/sections/thetwo-

way/2016/04/20/465545378/lead-laced-water-in-flint-a-step-by-step-look-at-the-

makings-of-a-crisis [https://perma.cc/FY7U-QQMW].

13. STEVEN P. DANDANEAU, A TOWN ABANDONED: FLINT, MICHIGAN, CONFRONTS

DEINDUSTRIALIZATION xx (Larry Bennett & Ronald Edsforth eds., State University of

New York Press 1996).

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2017] THE FLINT WATER CRISIS 89

infamous for the closing of its auto plants, and serves as a case

study of globalization and corporate management squeezing great

industrial cities of their jobs.

After World War II, the city was

an economic powerhouse with General Motors factories producing

Chevrolet cars and Buicks.

But the plants closed in the 1980s,

which depressed the economy of Flint.

The city has never really

recovered after the loss of the auto jobs and economic activity

associated with them.

The United States census shows that by

2010, the city had lost almost a third of its population from the

1980s.

Flint has been plagued by poverty and rampant crime,

averaging a violent crime rate four times the national average.

Almost 42% of the city lives below the poverty line, and the

median income for a household is about $24,862.

Cities like Flint

are horror stories of deindustrialization: the number of people

living in the city collapses, which leads to declining tax revenues,

which means fewer public services and a vicious spiral of economic

decline.

All of these problems were further exacerbated by

economic downturns like the Great Recession in 2008.

In 2012,

Flint was facing a $19 million deficit.

These economic conditions have created a political

environment in which politicians have sought to impose strict

fiscal responsibility.

This has generally included policies of cuts

14. Id. at xx-xxi.

15. Id.; Auto Industry, MICH. HIST., http://michiganhistory.leadr.msu.edu/auto-

industry/ [https://perma.cc/3YVH-DPQZ] (last visited Nov. 2, 2017).

16. Dandaneau, supra note 13, at xxi.

17. Id.

18. U.S. CENSUS BUREAU, Flint City, Mich. (2010); U.S. CENSUS BUREAU, Flint

City, Mich. (1980).

19. Sarah Ganim & Linh Tran, How Tap Water Became Toxic in Flint, Michigan,

CNN (Jan. 13, 2016), http://www.cnn.com/2016/01/11/health/toxic-tap-water-flint-

michigan/ [https://perma.cc/C4UG-4CEU]; Reported Annual Crime in Flint,

http://www.areavibes.com/flint-mi/crime/ [https://perma.cc/E5AB-UENK] (last visited

Nov. 2, 2017).

20. U.S. CENSUS BUREAU, Flint City, Mich. (2016).

21. Annie Snider, Flint’s Other Water Crisis: Money, POLITICO (Mar. 7, 2016),

https://www.politico.com/story/2016/03/flint-lead-water-contamination-money-220391

[https://perma.cc/3867-CG5T]; Dandaneau, supra note 13, at xx.

22. Edward Hoogterp, Great Recession Leaves Michigan Poorer, Census Numbers

Show, MICH. NEWS (Oct. 23, 2011), http://www.mlive.com/news/index.ssf

/2011/10/great_recession_leaves_michiga.html [https://perma.cc/DE7P-RGWU].

23. Steve Carmody, Flint May Pursue Loan to Pay Off Remaining Budget Deficit,

MICH. RADIO (April 9, 2015), http://michiganradio.org/post/flint-may-pursue-loan-pay-

remaining-budget-deficit [https://perma.cc/JV3P-N3BB].

24. Eric Levitz, The Republican Party Must Answer for What It Did to Kansas

and Louisiana, N.Y. MAG. (Mar. 18, 2016), http://nymag.com/daily/

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90 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

to both taxes and public spending for all things, including

infrastructure investment.

This stringent governing philosophy

of the governors and legislatures in states, like Wisconsin,

Kansas, and Michigan, has led to vastly reduced public sectors

and investment.

In 2011, Michigan Governor, Rick Snyder

signed Act 4, the state’s “emergency manager law.”

This

measure had existed in some form since 1990, but was

strengthened by giving unchallenged authority to the managers

under Act 4.

The act’s goal was to help cities in financial distress

like Flint and Detroit prosper again.

The law allows a manager

to be appointed and in charge of a city’s finances and municipal

decisions, with the ability to override all measures emplaced by

the locally elected government.

The manager can then sell off

any assets he or she desires to accomplish financial solvency,

while local government is unable to challenge any decision made

by the manager.

A Federal Appeals Court recently upheld the

constitutionality of this law in September of 2016.

Like much of the Rust Belt, Michigan is plagued by aging

water infrastructure that is in dire need of upgrade and funding.

The American Society of Civil Engineers gave Michigan a grade

of D in its infrastructure investment in 2009, even before

intelligencer/2016/03/gop-must-answer-for-what-it-did-to-kansas.html [https://

perma.cc/T3BX-7KYJ].

25. Id.

26. Id.; Lindsay Vanhulle, Budget Proposal Includes Spending, Cuts, Making

Room for Tax Cut or Debt Payments, CRAIN’S DETROIT BUS. (Apr. 24, 2017),

http://www.crainsdetroit.com/article/20170423/NEWS/170429949/budget-proposal-

includes-spending-cuts-making-room-for-tax-cut-or [https://perma.cc/5M3C-N79L];

David Bailey & Stefanie Carano, Wisconsin Governor Unveils Deep Spending Cuts,

REUTERS (Mar. 1, 2011), https://www.reuters.com/article/us-wisconsin-

budget/wisconsin-governor-unveils-deep-spending-cuts-idUSTRE72041C20110301

[https://perma.cc/7MHL-7APD].

27. Josh Hakala, How Did We Get Here? A Look Back at Michigan’s Emergency

Manager Law, MICH. RADIO (Feb. 3, 2016), http://michiganradio.org/post/how-did-we-

get-here-look-back-michigans-emergency-manager-law [https://perma.cc/D77E-

JG95].

28. Id.

29. See Sherwin, supra note 4, at 682-83.

30. Id.

31. Id.

32. Matt Vasilogambros, Upholding Michigan’s Emergency Manager Law, THE

ATLANTIC (Sept. 12, 2016), http://www.theatlantic.com/news/archive/2016/09/

michigan-emergency-manager-law/499658/ [https://perma.cc/7S86-YENH].

33. 2009 Michigan Infrastructure Report Card, AM. SOC’Y OF CIV. ENGINEERS 1,17

(2009), http://sections.asce.org/michigan/michiganreportcard/_files/ASCEMI-Infra

structure-Report.pdf [https://perma.cc/4CCY-Q46M].

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2017] THE FLINT WATER CRISIS 91

Governor Snyder signed the emergency manager law.

This

includes a D report card rating for drinking water infrastructure,

and a C rating for treating wastewater.

The group estimates

that $13.8 billion is needed just in Michigan over the next 20 years

to make the necessary upgrades for safe drinking water, and an

additional $3.7 billion is needed for treating wastewater.

Slashing public expenditure while balancing the need to

make necessary infrastructure upgrades is challenging.

These

budget priorities and pressures in a struggling city like Flint

encouraged the emergency manager—whose primary focus was

stabilizing the city’s budget—to push the city to save a few million

dollars by immediately switching Flint’s water source while the

city prepared to pipe in water from Lake Huron.

While the city

council symbolically supported the piping project to Lake Huron

by a 7-1 vote, the council did not make any decision in regards to

switching the city to the Flint River, and because of the emergency

manager law, had no power to make the decision anyway.

III. BUREAUCRATIC FAILURE

A. Negligence on the Part of Michigan State

Government

The responsibility for the Flint water crisis falls, first and

foremost, on the officials of Flint and Michigan who repeatedly

failed to heed warning signs.

The most obvious failure is that

the state government simply failed to properly test the water to

assure that it was safe for drinking.

Given the city’s industrial

nature, the Flint River was victim to industrial runoff and waste

since at least the 1830s.

Furthering the river’s poor health, the

auto manufacturers contributed their own share of chemicals over

the booming industrial periods.

Raw sewage was also disposed

34. Id. at 1.

35. Id. at 15, 48.

36. Key Facts About Michigan’s In, AM. SOC’Y OF CIV. ENGINEERS (2017),

https://www.infrastructurereportcard.org/wp-content/uploads/2016/10/Michigan-

Final.pdf [https://perma.cc/8N9B-4Y5E].

37. See generally Vasilogambros, supra note 33.

38. Sherwin, supra note 4, at 683, 698.

39. Id. at 661.

40. Id. at 663, 696.

41. Id. at 661.

42. Id. at 658.

43. Id. at 659.

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92 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

of in the river, and evidence of runoff of ammonia, chlorine, and

phenol in the river is present.

Multiple environmental

disasters, including several accidental exposures to waste from

ruptured sewer lines, also contribute to the river’s poor health.

As early as 1999, James Helmstetter, the Genesee County

Director of Environmental Health, stated, “[a]s far as we know,

no [community] uses the Flint River for a drinking water source,”

in response to concerns about the excess pollution in the river.

According to experts, this repeated pollution made the river

nineteen times more corrosive than the previous water system

used by Flint from Detroit.

Given the river’s history and

exposure to various forms of pollution, the consequences of not

testing the water were catastrophic.

In the summer of 2014, just a few months after the switch

from the Detroit water supply to the Flint River, residents in

parts of Flint were told by Flint officials to boil their water due to

elevated levels of E. Coli in the tap water.

In June 2014, there

was an outbreak of Legionnaires disease, a pneumonia that forms

when water is exposed to untreated sewage.

The outbreak

sickened eighty-nine and killed nine.

To treat these problems,

the city put disinfectants into the water supply, a byproduct of

which was Trihalomethane (THM), a compound linked to organ

failure as well as cancer.

State officials publicly said that the

outbreak of Legionnaires could not be linked to the Flint River

water supply, but privately, state officials expressed concerns in

internal emails of just that as early as October of 2014.

January of 2015, an environmental health supervisor stated he

believed the outbreak closely corresponded with the switch to the

Flint River water supply,

but a spokesman for the State

44. Id.

45. Id. at 659-60.

46. Id. at 660 (quoting Tim Carmondy, How Flint River Got so Toxic, THE VERGE

(Feb. 26, 2016), https://www.theverge.com/2016/2/26/11117022/flint-michigan-water-

crisis-lead-pollution-history [https://perma.cc/24QB-CZG2]).

47. Ganim & Tran, supra note 19.

48. Sherwin, supra note 4, at 661.

49. Id. at 661-62.

50. Id. at 662-63.

51. Id. at 663.

52. Id. at 662.

53. Leonard N. Fleming & Michael Gerstein, Email: Legionnaires Assertion

Would ‘Inflame Situation’, THE DETROIT NEWS (June 19, 2017),

http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2017/06/19/flint-

emails-legionnaires-water/103026954/ [https://perma.cc/3YPR-3XMW].

54. Jim Lynch, Michigan Officials Warned of Legionnaries’ Link, THE DETROIT

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2017] THE FLINT WATER CRISIS 93

Department of Environmental Protection declared the suggestion

“beyond irresponsible.”

In February of 2015, a utilities administrator tested the lead

levels in the Flint family home of Lee Ann Walters.

The

administrator told her that lead levels in her water showed 104

parts per billion in one test, and 397 in another, both far above

the federally mandated action level of 15 parts per billion.

Her

four-year-old tested positive for lead poisoning.

The city

continually assured her and the community that the water was

safe to drink.

Walters contacted the EPA, and water specialist

Miguel Del Toral traveled to Flint to conduct a test of her water.

Del Toral’s test revealed the water contained lead levels of 13,200

parts per billion, which is twice the level of what is considered

hazardous waste by the EPA.

The high concentration of lead in the water can be attributed

to the toxic, bacteria-infested water’s severe corrosiveness.

Because the Flint River’s water is nineteen times more corrosive

than the water from Detroit, toxic lead particles began flaking off

Flint’s pipes, allowing lead to leach into the city’s water.

Residents immediately complained to the city about the color,

smell, and taste of the water.

State officials continued to assure

residents that their water was completely safe to drink, as

Michigan employee Michael Prysby did when he issued a press

release for the Michigan Department of Environmental Quality

(MDEQ) on April 25, 2014, stating, “[t]he quality of the water

being put out meets all of our drinking water standards and Flint

water is safe to drink.”

NEWS (Feb. 4, 2016) http://www.detroitnews.com/story/news/michigan/flint-water-

crisis/2016/02/04/flint-water-crisis-lehionnaires/79828822/ [https://perma.cc/6CS5-

B5W9].

55. Sherwin, supra note 4, at 664.

56. Id. at 664, 694.

57. Id. at 664, 693.

58. Id. at 664.

59. Id.

60. Id.

61. Id.

62. Ganim & Tran, supra note 19.

63. Id.

64. Julie Bosman et al., As Water Problems Grew, Officials Belittled Complaints

From Flint, THE NEW YORK TIMES (Jan. 20, 2016), https://www.nytimes.com

/2016/01/21/us/flint-michigan-lead-water-crisis.html [https://perma.cc/E5QM-QTJ7].

65. Merrit Kennedy, Lead-Laced Water in Flint: A Step-By-Step Look At The

Makings Of A Crisis, NPR (Apr. 20, 2016), http://www.npr.org/sections/thetwo-

way/2016/04/20/465545378/lead-laced-water-in-water-in0flint-a-step-by-step-look-at-

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94 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

To control corrosion of pipes, cities are required by the EPA

to add corrosion control to the water supply to be within

compliance of the Federal Safe Water Drinking Act of 1974.

The

act requires consistent testing and proper notice to users of the

water when contaminants are detected.

Corrosion control of

lead pipes originated from the EPA in a 1991 regulation known as

the Lead and Copper Rule (LCR), which tried to mitigate the

immense costs required for upending the entire plumbing of the

U.S. to remove lead pipes

(which was banned from use in

1986);

as a stop gap measure, corrosion control chemicals create

a protective film coating on the inside of pipes to reduce the

leaching of lead from these pipes.

The MDEQ simply failed to

require the city to implement this proper corrosion control, and

the corrosion of the pipes in the city caused irreversible damage

that couldn’t be fixed by belatedly applying the corrosion control.

The addition of the proper, basic corrosion control to the Flint

water supply would have cost the city approximately one hundred

dollars per day.

Marc Edwards, a scientist from Virginia Tech whose team

broke the story of the Flint contamination to the national media,

said that the MDEQ failed to meet testing protocol of water set

out by the EPA in critical ways.

In February of 2015, the same

month Lee Ann Walter’s water was tested positive for harmful

levels of lead exposure, a state official at MDEQ inaccurately told

an EPA official that Flint had proper corrosion control in place.

Additionally, the state denied that it was required to comply with

corrosion control until further testing had been completed.

The

the-making-of-a-crisis [https://perma.cc/NUT7-N8YC ] (citing Press Release, City of

Flint, Mich. City Hall, City of Flint Officially Begins Using Flint River as Temporary

Primary Water Source (Apr. 25, 2014) (on file with City of Flint, Mich. City Hall).

66. Ganim & Tran, supra note 19; Sherwin, supra note 4, at 688.

67. Sherwin, supra note 4, at 688.

68. Id.

69. Id. at 688-89.

70. Id. at 691.

71. Id. at 692.

72. Ganim & Tran, supra note 19.

73. Sherwin, supra note 4, at 693.

74. Id. at 694; Lindsey Smith, State Admits Flint Did Not Follow Federal Rules

Designed to Keep Lead Out of Water, NPR MICH. RADIO (Oct. 18, 2015),

http://michiganradio.org/post/state-admits-flint-did-not-follow-federal-rules-designed-

keep-lead-out-water [https://perma.cc/4MG3-MQ7H].

75. Mark Brush, Who’s to Blame for Flint’s Water Crisis? Virginia Tech

Researcher Points the Finger at MDEQ, NPR MICH. RADIO (Oct. 1, 2015),

http://michiganradio.org/post/whos-blame-flints-water-crisis-virginia-tech-

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2017] THE FLINT WATER CRISIS 95

state justified its sparse monitoring and quality standards by

pointing to a change in the Lead and Copper Rule regulation in

the year 2000, which allowed water quality departments more

relaxed standards for reporting and monitoring.

Edwards found

the lead sampling the city conducted to be ineffective and

deliberately minimizing the results with incorrect testing

methodology.

On July 28, 2015, the MDEQ tested seventy-one

samples where the 90

percentile measured at 18.8 parts per

billion with lead, notably 3.8 parts per billion higher than the

federally mandated action level of fifteen.

On August 20, 2015,

two of the higher testing samples of lead parts were removed by

the MDEQ and water operating company, which reduced the 90

percentile measurement down to 12.2 parts per billion.

The

MDEQ claimed a sampling error.

Marc Edwards further pointed out the failure of MDEQ

testing in a blog post:

“By law [under the Safe Water Drinking Act], at

least 50 percent of the homes sampled must be

verified to have lead pipe, and the remainder of

homes sampled must have been built before 1986

and known to have lead solder. There is no basis for

believing that this requirement was met in either

the 2014 or 2015 LCR sampling events conducted by

the City. Hence, the City of Flint has not had a valid

LCR sampling event since the switch to Flint River

water.”

Health officials were failing in their duty to do basic testing

of the waters, and were using the LCR as an excuse for inaction.

researcher-points-finger-mdeq [https://perma.cc/B7HA-CUBL].

76. Lead and Copper Rule: Drinking Water Requirements for States and Public

Water Systems, U.S. ENVTL. PROTECTION AGENCY, http://www.epa.gov/dwreginfo/lead-

and-copper-rule [https://perma.cc/G2MH-NQCH] (last visited Oct. 6, 2017).

77. Sherwin, supra note 4, at 694.

78. Id. at 695.

79. Id.

80. Id.

81. Marc Edwards et al., Commentary: MDEQ Mistakes and Deception Created

the Flint Water Crisis, FLINT WATER STUDY UPDATES (Sept. 30, 2015),

http://flintwaterstudy.org/2015/09/commentary-mdeq-mistakes-deception-flint-water-

crisis/ [https://perma.cc/S5JW-DZ6B].

82. Brush, supra note 75; Lindsey Smith, Michigan Pushes to Have Nation’s

Toughest Lead Water Rules, NPR MICH. RADIO (Nov. 13, 2017),

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96 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

There is also evidence that state officials outside of the MDEQ

were concerned that the water switch was causing harm early

on.

In October of 2014, emails from staffers within the

governor’s office expressed concern of a possible connection

between the Legionnaires outbreak and the new water supply.

Michael Gadola, Governor Snyder’s legal counsel at the time, said

the city “should try to get back on the Detroit system as a stopgap

ASAP before this thing gets too far out of control.”

As late as July of 2015, only a few months after tests were

showing harmful levels of lead, an MDEQ spokesman said,

“anyone who is concerned about lead in the drinking water in

Flint can relax.”

Despite these huge warning flags and the

emergence of a real public health crisis, when the federal EPA

issued orders to Flint to act on the crisis, the MDEQ asserted that

the EPA lacked authority to order it to do anything:

We would note that under Section 1431, the

administrator has the authority to consult with the

State and local authorities to confirm the

correctness of the information on which [the order]

is based and to ascertain the action which such

authorities are or will be taking. We welcome such a

consultation.

As of November 22, 2016, 2.5 years after the crisis began,

residents of Flint still did not have guaranteed access to clean

drinking water.

The current Mayor of Flint isn’t confident that

https://www.npr.org/2017/11/13/563692086/michigan-pushes-to-have-nations-

toughest-lead-water-rules [https://perma.cc/C79F-H597].

83. Matthew Dolan & Paul Egan, Top Snyder Aides Urged Going Back to Detroit

Water, DETROIT FREE PRESS (Feb. 26, 2016), http://www.freep.com

/story/news/local/michigan/flint-water-crisis/2016/02/26/flint-water-crisis-snyder-

detroit/80926138/ [https://perma.cc/JBH2-A5GX].

84. Id.

85. Id.

86. Lindsey Smith, Leaked Internal Memo Shows Federal Regulator’s Concerns

About Lead in Flint’s Water, NPR MICH. RADIO (July 13, 2015),

http//:michiganradio.org/post/leaked-internal-memo-shows-federal-regulator-s-

concerns-about-lead-flint-s-water [https://perma.cc/A932-G5EK].

87. Sherwin, supra note 4, at 703 (quoting Letter from Keith Creagh, Dir., Mich.

Dep’t of Envtl. Quality, to Gina McCarthy, Adm’r, EPA (Jan. 22, 2016),

http://www.epa.gov/sites/production/files/2016-01/documents/mdeq-response_0.pdf

[https://perma.cc/84X2-L9LX]).

88. Katie Herzog, Flint Still Doesn’t Have Safe Drinking Water, BUS. INSIDER

(Nov. 22, 2016).

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2017] THE FLINT WATER CRISIS 97

she can recommend residents drink their tap water without a

filter for at least another two years either, when crews are

expected to finish removing every lead service line in the city.

B. The EPA Did Not Sound the Alarm

The EPA also bears some blame in the agency’s decision not

to publicly raise the alarm. The EPA had the combination of

complaints from Flint citizens, warnings from EPA employees,

and the total authority through the Safe Water Drinking Act to

act on enforcing existing law that may have prevented the worst

damage now felt by Flint.

Proposed solutions by the EPA ignore

the fact that these existing regulations were simply unenforced.

While such regulatory changes might be a positive step, they do

not effectively address the serious deficiencies of the inter-agency

handling of the crisis as it unfolded.

In July 2015, after Miguel Del Toral conducted the test

showing lead contamination greater than twice the level of

hazardous waste in a home, he sent a memorandum to his

superiors: “[r]ecent drinking water sample results indicate the

presence of high lead results in the drinking water, which is to be

expected in a public water system that is not providing corrosion

control treatment.”

EPA superiors, who appeared more

concerned with the appearance of sounding alarmist, brushed Del

Toral’s concerns aside.

EPA supervisor Jennifer Crooks said in

an email, “I’ll bet that the state will take this personally since they

are responsible . . . which isn’t a bad thing, but they may get VERY

defensive.”

When the internal memo was leaked to the ACLU

89. Jonathan Oosting, Flint: ‘All Clear’ For Drinking Water Still Years Away, THE

DETROIT NEWS (Mar. 7, 2017), http://www.detroitnews.com/story/news/michigan/flint-

water-crisis/2017/03/07/flint-water-conference/98862674/ [https://perma.cc/G4KV-

943M].

90. Bosman et al., supra note 63; Safety of Public Water Systems, 42 U.S.C. §

300i (2002); see generally Sherwin, supra note 4.

91. See generally U.S. ENVTL. PROTECTION AGENCY, LEAD AND COPPER RULE

REVISIONS WHITE PAPER, Oct. 26, 2016, https://www.epa.gov/sites/

production/files/201610/documents/508_lcr_revisions_white_paper_final_10.26.16.pdf

[https://perma.cc/EAC9-UPZL].

92. ENVTL. PROTECTION AGENCY, HIGH LEAD LEVELS IN FLINT, MICHIGAN-

INTERIM REPORT, June 24, 2015, http://flintwaterstudy.org/wp-content/

uploads/2015/11/Miguels-Memo.pdf [https://perma.cc/ZQ95-M28A].

93. Todd Spangler & Paul Egan, Emails: EPA Indecision Led to Inaction in Flint

Crisis, DETROIT FREE PRESS (May 13, 2016), http://www.freep.com/

story/news/local/michigan/flint-water-crisis/2016/05/12/epa-concerns-contradictions-

flint/84299484/ [https://perma.cc/6WMU-8H2A].

94. Id.

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98 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

in July of 2015, Region 5 director Susan Hedman apologized to

the Flint mayor for the information not being fully vetted.

The

discrediting of Del Toral was underscored by the Flint Mayor’s

statement saying, “[i]t’s dangerous for a candidate to make

allegations that are not based on fact,” and an MDEQ spokesman

who said, “rogue employee” wrote the report.

Despite the emergency powers that allow the EPA to act in

this situation

, they appeared more interested in applying non-

public pressure to Michigan behind the scenes, as to not upset

Michigan state officials at MDEQ. This was evidenced by

Jennifer Crooks in another email where she wanted to avoid the

information coming off as “from my perspective . . .

aggressive/controversial.”

“If there was ever a case where [the]

EPA should exert emergency powers and take primacy away from

an agency, this is it,” Marc Edwards said in a statement,

referencing the text of the Safe Water Drinking Act which

provides the EPA with broad authority to dictate local

municipalities:

SDWA section 1431, 42 U.S.C. §300i gives the EPA

Administrator broad authority to act to protect the

health of persons in situations where there may be

an imminent and substantial endangerment.

Specifically, section 1431 provides that, upon

receipt of information that a contaminant that

is present in or likely to enter a public water

system or an underground source of drinking

water, or there is a threatened or potential terrorist

attack or other intentional act, that may present an

imminent and substantial endangerment to the

health of persons, the EPA Administrator may

take any action she deems necessary to protect

human health.

100

95. Lindsey Smith, After Blowing the Whistle on Flint’s Water, EPA “Rogue

Employee” Been Silent. Until Now, MICH. RADIO (Jan. 21, 2016),

http://michiganradio.org/post/after-blowing-whistle-flints-water-epa-rogue-employee-

has-been-silent-until-now [https://perma.cc/J9JV-QLNJ].

96. Id.; The EPA Flint Abdication, THE WALL STREET J. (Mar. 17, 2016)

https://www.wsj.com/articles/the-epas-flint-abdication-1458258027 [https://perma.cc/

S47B-7CW4].

97. Brush, supra note 75.

98. Spangler & Egan, supra note 93.

99. Brush, supra note 75.

100. Safe Drinking Water Act (SDWA) and Federal Facilities: Enforcement, U.S.

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2017] THE FLINT WATER CRISIS 99

The failure to act on this authority in the face of an unfolding

catastrophe showcases a toxic political environment. It was

deemed less harmful for administrators in Michigan and the EPA

to simply sit on its hands, ignoring irrefutable evidence that

something was terribly wrong, than to act in the public interest.

IV. CAUSES OF THE INSTITUTIONAL FAILURE

In proposing solutions, agencies and authors including the

EPA, suggest making changes to the Safe Water Drinking Act, the

LCR, in addition to providing better education for local

municipalities, and generally requiring better reporting to bring

concerns forward faster.

101

But what these solutions ignore is

that the EPA had sufficient emergency authority powers to

respond to the Flint crisis like the extreme environmental

catastrophe it was.

102

Michigan state officials—like those at the MDEQ—had

ample information to understand the basic dangers the Flint

water had.

103

Furthermore, both officials in Michigan and the

EPA disregarded and lied about clear evidence that Flint’s water

had effectively been poisoned, and that its citizens were

experiencing harmful effects.

104

The proposed reforms that target

the alleged confusion in water control action might be welcomed

by public observers, but the notion that these reforms would have

prevented the Flint crisis neglects to address the criminal

negligence of MDEQ officials.

105

It should have been obvious with

basic research to MDEQ workers that the Flint water was toxic

and corrosive. Clear warning signs went ignored even after

numerous complaints.

106

Failures to admit or recognize these

facts has created a severe health crisis that could result in the cost

of hundreds of millions of dollars in social and economic costs for

Flint, a city already reeling from the decline of the auto

ENVTL. PROTECTION AGENCY, https://www.epa.gov/enforcement/safe-drinking-water-

act-sdwa-and-federal-facilities [https://perma.cc/742G-HEEC], (last visited Oct. 29,

2017) (emphasis added).

101. Sherwin, supra note 4, at 719.

102. Safety of Public Water Systems, 42 U.S.C. § 300hh (2006).

103. See Sherwin, supra note 4.

104. Id.

105. Sara Ganim & Ray Sanchez, Flint Water Crisis: New Criminal Charges Are

Brought, CNN (Aug. 3, 2016), http://www.cnn.com/2016/07/29/us/flint-water-crisis-

charges/ [https://perma.cc/XC9C-5WDZ].

106. Id.

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100 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

industry.

107

The EPA should have recognized the Flint water crisis

unfolding as a major public health emergency that required

immediate action. The EPA’s hesitance to sound public alarm

bells represents a horrifying failure of the core of what a federal

environmental agency is supposed to do. The necessary

regulations for the EPA to act were present and totally

sufficient.

108

It rightly thought that it had proper authority to

intervene when it did, and yet it still waited nearly a year after

the initial reporting level for lead contamination was met and

internally reported by one of its agents.

109

A better problem to address might be the institutional

culture that has contributed to the behaviors of state and federal

agencies here. What could be a far more determinative factor in

causing this crisis are the cold realities of finance and politics.

110

The EPA is now a frequent target to the most critical

condemnations and political battles in Washington.

111

In June of

2015, Republicans in the House Appropriations Committee

passed a bill that slashed the EPA’s funding by nine percent.

112

The committee chair hailed the cuts as necessary to rein in an

“unnecessary, job-killing regulatory agenda.”

113

Senate Majority

Leader Mitch McConnell called Obama administration regulatory

actions “an all-out assault on the American economy.”

114

January, 2016, a year after the Flint crisis became a national

news story, Speaker of the House Paul Ryan wrote an op-ed

criticizing unrelated water regulations the EPA was proposing:

“Congress will continue to make sure people who depend upon

107. Josh Sanburn, Flint Water Crisis May Cost the City $400 Million in Long

Term Social Costs, TIME (Aug. 8, 2016), http://time.com/4441471/flint-water-lead-

poisoning-costs/ [https://perma.cc/X3EB-YS47].

108. Safety of Public Water Systems, 42 U.S.C. § 300 (2006).

109. Smith, supra note 95.

110. Sherwin, supra note 4, at 697.

111. Jack Fitzpatrick, Cuts to EPA Staff Would Entail Political Battle Over

Regional Offices, MORNING CONSULT (Apr. 24, 2017), https://morningconsult.com

/2017/04/24/cuts-epa-staff-entail-political-battle-regional-offices/ [https://perma.cc/

FU9H-XKRK].

112. Devin Henry, House Panel Approves $30.17B Bill Cutting EPA Funds,

Blocking Rules, THE HILL (June 16, 2015), http://thehill.com/policy/energy-

environment/245137-house-panel-approves-3017b-bill-to-cut-epa-funds-block-climate

[https://perma.cc/UE6N-HNFG].

113. Id.

114. Geof Koss, Tempers Flare as Senate Panel Oks Interior-EPA Spending Bill,

GREENWIRE (June 18, 2015), https://www.eenews.net/stories/1060020491

[https://perma.cc/2Z5S-E8VY].

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2017] THE FLINT WATER CRISIS 101

this indispensable resource are not imperiled by an overzealous

federal bureaucracy.”

115

Lawsuits regarding proposed power

plant and water regulations against the EPA have become

increasingly common as well.

116

The point is not that everything the EPA proposes or does is

good or bad. The point is that the EPA is now seen by many states

and conservative leaders as an enemy regulatory agency and

political tool of radical environmental policy. As a result, the EPA

is facing a declining budget, numerous lawsuits, and severe

pushback from states.

117

Given all of this, it is easier to

understand why the director of the EPA region overseeing Flint,

especially after reading Del Toral’s report, tried to quietly apply

pressure to MDEQ officials to start adding proper corrosion

control rather than asserting EPA emergency authority against a

state in the face of a public health catastrophe.

118

The political

willpower to insert itself into the negligent action of state officials

carries necessary blowback. In released emails, EPA employees

expressed concern about the defensiveness they were likely to get

from telling MDEQ about problems in Flint.

119

And indeed, state

officials at MDEQ were openly defiant until the crisis was in full

swing.

120

Spokesmen and others in Michigan continually assured

Flint residents their water was fine, even though they were being

given every indication that it was not.

121

The EPA has exercised

its emergency powers under section 1431 before,

122

but the agency

has never faced the kind of local governmental pushback that it

has received from Michigan officials during this crisis.

115. Paul Ryan, Water Rules Show EPA’s Overreach, OMAHA WORLD-HERALD

(Jan. 13, 2016), http://www.omaha.com/opinion/paul-ryan-water-rules-show-epa-s-

overreach/article_79487f96-cca1-5afa-a194-4d63a398c2aa.html [https://perma.cc/H4

3U-PR5P].

116. Timothy Cama, Two Dozen States Sue Obama Over Coal Plant Emissions

Rule, THE HILL (Oct. 23, 2015), http://thehill.com/policy/energy-environment/257856-

24-states-coal-company-sue-obama-over-climate-rule [https://perma.cc/GF8E-6EJ2].

117. Id.; see also Henry, supra note 112.

118. Spangler & Egan, supra note 93.

119. Id.

120. E-mail from Keith Creagh, Dir. Of Mich. Dep’t. of Envtl. Quality, to Gina

McCarthy, Adm’r U.S. Envtl. Protection Agency (Jan. 22, 2016) (on file with the Dep’t

of Envtl. Quality).

121. Kennedy, supra note 65.

122. U.S. ENVTL. PROTECTION AGENCY, ADMINISTRATIVE ORDER ON

CONSENT (Mar. 19, 2013), https://www3.epa.gov/region10/pdf/sites/yaki

magw/consent_order_yakima_valley_dairies_march2013.pdf [https://perma.cc/454N-

GTPN]; U.S. ENVTL. PROTECTION AGENCY, ADMINISTRATIVE ORDER ON

CONSENT (Nov. 20, 2006), https://www.epa.gov/sites/production/files/2016-05/

documents/sdwadupont06.pdf [https://perma.cc/SE9N-43DN].

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102 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

Michigan officials at all levels were under intense pressure

to squeeze the budgets of troubled cities like Detroit and Flint,

and were disregarding common sense measures of public health

and safety.

123

Emergency managers like the one in Flint are put

in charge to manage the city with the purpose of getting the deficit

under control. These managers act as political appointees with

no local accountability to the people that are most impacted by

these decisions.

124

Critical observers have noted the

disproportionate effect on the poor and minority communities of

Flint, even suggesting that officials would be less likely to ignore

such warning signs in more affluent, white communities.

125

pragmatic view from the eyes of Michigan officials obsessed with

budgetary matters makes a crisis such as this all but inevitable,

particularly for a poor community like Flint.

126

In the wake of the

financial crisis that squeezed state resources, the most pressing

concern in their eyes was the red ink in the budget. As of June

14, 2017, fifteen people, including two former emergency

managers of Flint, have been charged by Michigan’s Attorney

General for crimes related to the crisis ranging from involuntary

manslaughter to obstruction of justice.

127

V. PREVENTING FUTURE FLINTS

A. Immediate Relief

Flint is one of many aging industrial cities that were at risk

for a manmade catastrophe such as this.

128

The EPA has flagged

many other cities in the rust belt, like Milwaukee, WI, as having

the same kinds of risks with lead pipes delivering drinking

water.

129

Even replacing these lead lines for houses in cities can

123. Bosman et al., supra note 83.

124. Id.

125. Shawna J. Lee et al., Racial Inequality and the Implementation of Emergency

Management Laws in Economically Distressed Urban Areas, 70 CHILD AND YOUTH

SERVICES REV. 1, 1, 6 (2016).

126. Bosman et al., supra note 83.

127. Sara Ganim, Michigan Officials Charged in Flint Legionnaires’ Outbreak,

CNN (June 14, 2017), http://www.cnn.com/2017/06/14/health/flint-water-crisis-

legionnaires-manslaughter-charges/index.html [https://perma.cc/DA7D-W3NR].

128. Michael Wines & John Schwartz, Unsafe Lead Levels in Tap Water Not

Limited to Flint, N.Y. TIMES (Feb. 8, 2016), https://nyti.ms/2jLogr4

[https://perma.cc/L8NZ-JCWS].

129. John Seewer & David Eggert, Lead Pipes Lurk in Older Neighborhoods Across

the Nation, SUN-SENTINEL (Jan. 23, 2016), http://www.sun-

sentinel.com/news/nationworld/sfl-lead-pipes-lurk-in-older-neighborhoods-across-the-

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2017] THE FLINT WATER CRISIS 103

disturb the water systems and release toxic flakes.

130

Short of an

entire infrastructure upgrade in both public and private property

throughout these cities, the danger of lead or other harmful

contamination to water supplies will be prone to potential

bureaucratic failures or changes in water chemistry.

The solution to both the problems of institutional indifference

in enforcing regulation and decrepit water infrastructure must

come from the federal government. State governments, usually

by law, cannot run budget deficits.

131

Their resources and tax

bases are smaller, and the problems of water infrastructure

investment will cost billions for nearly every state government,

and by some estimates, up to several trillion dollars

nationwide.

132

Contamination issues and lack of supply without

these upgrades will cost local economies like those in Flint

millions of dollars in worker output and domestic spending.

133

The federal government, on the other hand, is not under the

constraint of running a balanced budget, as it can issue debt.

134

It has the resources, but currently lacks the will to make the

massive investment needed to make base level improvements in

public health. Current programs like the Drinking Water State

Revolving Fund and Clean Water State Revolving Fund provide

capitalization grants and financing mechanisms to provide local

infrastructure upgrades.

135

However, the improvements are

financially too small to make a large impact on national

infrastructure, and are at best stopgap measures to a national

problem that could lead to public health crises like Flint. In the

short term, what is widely accepted is the need for Flint and

similarly situated cities to provide lead filters to at risk residents

nation-20160123-story.html [https://perma.cc/2QP2-YYKZ].

130. Cheryl Corley, Chicago’s Upgrades to Aging Water Lines May Disturb Lead

Pipes, NPR (Apr. 14, 2016), http://www.npr.org/2016/04/14/474130954/chicagos-

upgrades-to-aging-water-lines-may-disturb-lead-pipes [https://perma.cc/T266-L3H8].

131. NAT’L CONF. OF ST. LEGISLATURES, STATE BALANCED BUDGET REQUIREMENTS

EXECUTIVE SUMMARY (Apr. 12, 1999), http://www.ncsl.org/research/fiscal-policy/state-

balanced-budget-requirements.aspx [https://perma.cc/M8XY-Z6N7].

132. 2013 Report Card for America’s Infrastructure, AM. SOC’Y OF CIV. ENGINEERS

1, 5 (Mar. 2013), http://2013.infrastructurereportcard.org/ [https://perma.cc/Q7CP-

CEAQ].

133. Sanburn, supra note 107.

134. GRANT A. DRIESSEN, CONG. RESEARCH SERV., R40767, HOW TREASURY ISSUES

DEBT (2016).

135. U.S. ENVTL. PROTECTION AGENCY, LEARN ABOUT THE CLEAN WATER STATE

REVOLVING FUND (CWSRF) (2017), https://www.epa.gov/cwsrf/learn-about-clean-

water-state-revolving-fund-cwsrf [https://perma.cc/LD2A-ZE4G].

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104 BENEFITS & SOCIAL WELFARE LAW REVIEW[Vol. 19.1

who may have lead service lines.

136

A combination of local, state,

and federal government funding needs to be allocated to these

communities immediately to prevent the present and real threat

of lead exposure, particularly for children, who are most at risk.

In the past twenty years, there have been great strides in new

filtration technologies like Granular Activated Carbon (GAC),

which has a lead removal effectiveness of over ninety-nine

percent, while also requiring only a fraction of operating costs

compared to other standard brand filters.

137

The best short-term

solution is to apply massive and immediate filtration investment

to communities with lead pipes, delaying and mitigating the

potential long term social and economic costs associated with

accidental lead exposure through water systems, and therefore

providing the necessary relief of emergency conditions to allow the

fostering of carefully drafted plans by experts and lawmakers for

the long term.

B. Solutions for the Future

For long-term solutions to lead contamination in the water

supply, the United States will need to upgrade its entire aging

water infrastructure system, including replacing all the lead

service lines nationwide. What the federal government needs to

do is supercharge the funding for water structure and water

quality upgrades throughout the country in both infrastructure

spending and EPA enforcement. These are basic public health

investments that could boost economic activity, create thousands

of infrastructure jobs, and prevent more man-made catastrophe

like Flint from happening in the future. This funding will relieve

pressures on state budgets and embolden the EPA to act with

greater authority for the public good. The logistics of creating

such legislation and enforcement are straightforward. The

challenges of such legislation come from the political difficulty of

pushing through a bill with the price tag of trillions of dollars in

a clash of political will and fiscal choice.

But the costs of not upgrading the United States’ water

infrastructure are devastating.

138

Estimates on the current

136. Jonathan Oosting & Michael Gerstein, Expert: Withouht Filter, No Water Safe

From Lead Pipes, Detroit News (Spet. 28, 2016),

http://www.detroitnews.com/story/news/michigan/flint-water-

crisis/2016/09/28/snyder-flint-water-crisis/91213822/ [https://perma.cc/E3ND-QYPQ].

137. Mohamed Ahmedna et al., The Use of Nutshell Carbons in Drinking Water

Filters for Removal of Trace Metals, 38 WATER RESEARCH 1062, 1066-1067 (2004).

138. Am. Soc’y of Civ. Engineers, supra note 133, at 18.

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2017] THE FLINT WATER CRISIS 105

amount of water wasted each day in the United States through

leaky infrastructure total to around seven billion gallons per

day.

139

An increasing population, the potential effects of climate

change, and contamination issues on a strained water supply will

only exacerbate the current water shortages that much of the

country faces.

140

And it’s not just California that would be

effected. Forty states are projected to have water shortages in the

next few years, according to a Government Accountability Office

Survey in 2013.

141

These conditions have the potential to

downsize prospects for economic growth and standards of living

for people all around the United States. The United States could

greatly benefit in treating water more like the precious

commodity it is. By instituting real pricing for water and

committing to strenuous conservation policies practiced by less

water rich nations,

142

the United States could control water costs

and assure sufficient national supplies during periods of drought

or stress.

If water shortages and quality concerns are not enough to

entice lawmakers into large infrastructure projects, perhaps the

estimated economic benefits would. The Economic Policy

Institute estimates that with just $250 billion of debt financed

investment into infrastructure projects, the United States

economy would expand by $400 billion, with a net increase of

three million jobs and increased levels of employment over the

seven-year life of that investment.

143

Such investments would

also potentially improve economy wide productivity growth.

144

The savings from a reduction in water loss would also help, given

139. Adam James, The U.S. Wastes 7 Billion Gallons of Drinking Water a Day: Can

Innovation Help Solve the Problem?, THINK PROGRESS (Nov. 3, 2011),

https://thinkprogress.org/the-u-s-wastes-7-billion-gallons-of-drinking-water-a-day-

can-innovation-help-solve-the-problem-f7877d6e3574/ [https://perma.cc/BM9M-

9GDE].

140. James McBride, The Beleagured U.S. Water System, COUNCIL ON FOREIGN

RELATIONS (July 8, 2017), https://www.cfr.org/backgrounder/beleaguered-us-water-

system [https://perma.cc/3Q77-N4AA].

141. Elaine S. Povich, Drought is Not Just a California Problem, USA TODAY (Apr.

18, 2015), https://www.usatoday.com/story/news/nation/2015/04/18/california-

drought-nationwide/25999193/ [https://perma.cc/4HFT-S58N].

142. See SETH SIEGEL, LET THERE BE WATER: ISRAEL’S SOLUTION TO A WATER

STARVED WORLD 17-45 (2015).

143. Josh Bivens, The Short- and Long-Term Impact of Infrastructure Investments

on Employment and Economic Activity in the U.S. Economy, ECON. POL’Y INST. (July

1, 2014), http://www.epi.org/publication/impact-of-infrastructure-investments/

[https://perma.cc/JJX2-VWFC].

144. Id.

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the cost of pumping seven billion gallons of water per day that

goes to waste.

145

Those water savings could be rolled into new

agriculture or industrial development, as well as improving

municipal functions and costs. These economic benefits would

provide an infrastructure upgrade that could be the foundation

for further growth and better urban development.

VI. CONCLUSION

What should be the final motivating straw for lawmakers,

however, is looking at the devastating effects of water

contamination that to this day are plaguing Flint.

146

The

economic impact and social costs of dealing with the crisis will not

be fully realized for decades.

147

While the fixes proposed by

legislators to require notifying the public of water quality issues

or requiring clarifiers in the Lead Copper Rules aren’t

meaningless, the emergency regulatory mechanisms were already

in place for the EPA to enforce failures in inspection and water

treatment in Flint.

148

These mechanisms were either ignored or

not given proper weight to the magnitude of the developing

problems in the city. It just isn’t clear that anything will be as

effective at preventing another Flint crisis in the short term but

the embarrassment of the EPA and MDEQ officials. But that

embarrassment will eventually subside. The EPA has flexed its

ability to exercise emergency authority powers before under

section 1431, particularly against private entities.

149

But this

author could not find a comparable instance in which the EPA was

under the pressure of state and local government resisting and

disputing facts on the ground. Proposed legislative fixes requiring

stricter standards simply reinforce what was already the job of

both state and federal agencies.

150

But a dedication to water

145. James, supra note 141.

146. Herzog, supra note 87.

147. Sanburn, supra note 107.

148. Spangler & Egan, supra note 93.

149. U.S. ENVTL. PROTECTION AGENCY, ADMINISTRATIVE ORDER ON

CONSENT (Mar. 19, 2013), https://www3.epa.gov/region10/pdf/sites/yaki

magw/consent_order_yakima_valley_dairies_march2013.pdf [https://perma.cc/KX68-

ZV5Z]; U.S. ENVTL. PROTECTION AGENCY, ADMINISTRATIVE ORDER ON

CONSENT (Nov. 20, 2006), https://www.epa.gov/sites/production/files/2016-

05/documents/sdwadupont06.pdf [https://perma.cc/SE9N-43DN].

150. Greg Botelho, No Simple Fix: Infrastructure, Health Issues Loom Large in

Flint Water Crisis, CNN (Jan. 19, 2016), http://www.cnn.com/2016/01/19/us/flint-

water-crisis-whats-next/index.html [https://perma.cc/BBQ2-UDV8]; Josh Sanburn,

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2017] THE FLINT WATER CRISIS 107

infrastructure innovation at the federal level would relieve some

of the budgetary pressures off these agencies and other state

governments to hopefully discourage future negligent or careless

action. In March of 2017, the EPA awarded $100 million to

Michigan to improve water infrastructure in Flint.

151

This much

needed funding was supplemented by the State of Michigan after

it agreed to settle a class action lawsuit and set aside $97 million

to replace the water lines of at least eighteen thousand Flint

households by 2020.

152

In continuing to pursue the dire needs of

water infrastructure repair, this country has the opportunity to

make major improvements in national public health, and to head

off future disastrous water crises like Flint.

Why the EPA is Partly to Blame for the Flint Water Crisis, TIME (Jan. 22, 2016),

http://time.com/4190643/flint-water-crisis-susan-hedman-epa/

[https://perma.cc/MZ2P-QJ7R].

151. EPA Awards $100 Million to Michigan for Flint Water Infrastructure

Upgrades, U.S. ENVTL. PROTCETION AGENCY (Mar. 17, 2017),

https://www.epa.gov/newsreleases/epa-awards-100-million-michigan-flint-water-

infrastructure-upgrades [https://perma.cc/49DC-6QMV].

152. Chris Boyette, Michigan and Flint Agree to Replace 18,000 Home Water Lines

by 2020, CNN (Mar. 27, 2017), http://www.cnn.com/2017/03/27/us/flint-

settlement/index.html [https://perma.cc/L27T-A37T].

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