by Eva-Mae Eighteen

This blog is part of the ‘Environmental Justice and the Law – A Student Blog Symposium.’

In international jurisdictions, the State must address environmental injustice, but in the city of Flint, the State itself was the perpetuator of injustice. 

Like a chess game, white versus black, the Flint Water Crisis demonstrated a game of power and calculated oppression. Except in this game: one side started with only some of the pieces.

The board was set in April 2014. The players were not Kings and Queens but rather self-serving State Officials and the powerless, impoverished, and majority-Black community of Flint, Michigan. 

The opening gambit of the State involved appointing an Emergency Manager, who, in a bid to cut costs, switched Flint’s drinking water supply from Detroit to Flint River. Despite its history as a sewage and industrial dumping site, officials neglected to treat the water. Corrosive lead-contaminated water leached out from ageing pipes into thousands of homes. The city was being poisoned. 

Residents complained their water looked, tasted, and smelled foul, but each pawn moved forward was set aside by hollow reassurances by the State: “Anyone who is concerned about lead in the drinking water in Flint can relax.”

As the game unfolded, evidence was built. Researchers and scientists, akin to black Knights on a chessboard, confirmed that 17% of samples contained dangerous lead levels and lead exposure among children had tripled. Yet the sporadic nature of a Knights path across the board landed it with limited success; evidence was ignored and facts concealed by the State. Behind the scenes, the State furtively installed purified water coolers in offices and even switched General Motor’s water source due to metal corrosion. The contamination extended beyond lead, leading to one of the largest Legionnaires’ disease outbreaks in US history. As if the State’s negligence couldn’t get worse, its response of excessive chlorine treatment led to a spike in cancer-causing trihalomethanes. For the citizens of Flint, it was a losing battle. 

After a period of zugzwang, the relentless and determined efforts by citizens, activists, and scientists mounted pressure on the State like a coordinated attack across the board. Media attention intensified and public outrage grew. Checkmate. The State’s hand was forced, and in October 2015, Flint reverted to Detroit’s water supply. Within months, both Flint and Genesee County were declared states of emergency, and Governor Snyder issued a public apology.

The game concluded not with a traditional victory but an ongoing fight for justice. Beside the board lay an official tally of 12 taken lives, but given the population decrease of 20,000 since the crisis began, the true death toll is likely horrifying. Long-term health consequences, including increased cancer risk, mean the full impacts will not be understood in the lifetimes of those responsible, a bitter reminder of the troubling disconnect between authority and accountability, community and governance.

Environmental Justice

The Flint Water Crisis is a textbook example of environmental injustice, with environmental scholar Dr Mohai describing it as the most egregious illustration of environmental injustice in recent United States history. The meaning of environmental justice is multifaceted and has evolved over time. Considering the US jurisdiction and the relevance of the Environmental Protection Agency (EPA) to the Flint crisis, this blog adheres to the EPA’s own definition:

“The fair treatment and meaningful involvement of all individuals in decision-making and activities that affect human health and the environment, regardless of income, race, color, national origin, tribal affiliation or disability.”

Three types of environmental injustice sit at the core of Flint’s crisis: racial, distributive, and procedural.

Racial 

Robert Bullard, a distinguished environmental sociologist, defines environmental racism as any policy or practice that differentially affects individuals, groups, or communities based on race, regardless of intent. This opposes the US Supreme Court’s standpoint, with Arlington Heights v Metropolitan Housing Corp and Washington v Davis establishing disparate impact alone is insufficient; proof of discriminatory intent is required. 

Whilst an admission of racist intent remains unlikely, Flint’s authorities did not shy away from demonstrating their blatant indifference to the suffering of their citizens. The community’s protests and cries were chronically ignored; scientific evidence was downplayed and concealed. Even after official acknowledgment, the State’s response lacked urgency. More concern was given to the rusting of General Motors’ facilities than the poisoning of the people of Flint. Such disregard was encapsulated in internal communications between EPA officials, with one callously remarking: 

“I’m not so sure Flint is the community we want to go out on a limb for.”

Echoing the reflections of Dr Mohai: what type of communities do warrant going out on a limb for? Affluent white communities? 

It is unsurprising the Michigan Civil Rights Commission (MCRC) unequivocally concluded that race influenced the water crisis, contending it simply would not have occurred in a white community. This conclusion underscores the inadequacy of the court’s sole focus on intent, which is too limiting a factor to distinguish between environmental injustice and environmental racism. Per Robert Bullard’s approach, the Flint crisis is undoubtedly a case of environmental racism. 

Distributive

The EPA finds distributive injustice to occur where a specific group disproportionately suffers negative environmental consequences of a decision. Consideration should be given to a community’s pre-existing health, nutrition, and healthcare availability, aiming to minimise harm to those least able to withstand it. As asserted by the MCRC, knowingly imposing health risks on the impoverished and health-compromised community of Flint exemplifies the “insidious systemic racism” that permeated Flint’s governance. Environmental justice scholar Steve Lerner depicted cities like Flint as merely “sacrifice zones,” making the lives of their citizens insignificant. 

A secondary harm further arises from a failure to consider a community’s existing health when responding to an environmental hazard. Flint Government’s response overlooked the compounded effects of lead consumption and longstanding malnutrition, necessitating a more considered response than a wealthy community would require. 

Procedural 

Finally, the EPA’s definition of ‘meaningful involvement’ inherent to procedural justice requires that citizens may participate in decisions affecting their environment and health, these contributions are considered, all potentially affected parties are included, and assistance is provided to ensure this. The Flint crisis clearly violated these guidelines, evidenced by the lack of local representation, the dismissal of resident complaints, and scientific evidence tampering. Citizens were left without a voice, unable to participate directly or through elected officials. This not only contravened environmental justice principles but also the US’ obligations under principle 10 of the United Nations Rio Convention, which promotes inclusive citizen participation in environmental concerns. 

The laws at the heart of these injustices: help or hindrance?

Emergency Manager Law

The Emergency Manager (EM) law, introduced under the Public Act (PA) 436, arguably precipitated the public health crisis in Flint. PA 436 empowers the Governor to place complete legal control of Michigan municipalities in the hands of a State‐appointed EM. 

In 2011, the Governor repealed PA 72 and implemented PA 4. This was the first step in muting the voices of the Flint community, expanding the EM’s powers beyond financial matters and nullifying the authority of locally elected officials. Citizens successfully repealed PA 4, reinstating PA 72. However, the State swiftly countered this democratic action by enacting a new and more authoritative PA 436 law within weeks. This sequence of legislative change showcases the State’s troubling disinterest for democratic processes and public participation.

Prior to the Flint crisis, Michigan’s EM law was already facing scrutiny. Litigation such as Brown v Snyder (challenging PA 4) and Phillips v Snyder (challenging PA 436) highlighted the law’s racial contours. Significantly, Judge George Caram Steeh in Phillipsidentified the PA 436 EM law as racially motivated and discriminatory in effect.

The court heard 52% of individuals placed under EMs were of colour, a stark contrast to the State’s 2% white population. Moreover, while financial indicator scores of 7 should place cities on a watch list, 6 out of 7 black communities with this score received EMs, compared to 0 of 12 white communities with the same score. This selective application of the EM law thrives on exploiting racial division. International jurisdictions demand a threat to national security to invoke the EM Law; Michigan only requires the colour of a community’s skin to be black. 

Dr Mohai criticised the EM law as the central violation of procedural justice in Flint, stripping power from locally elected officials, undermining local democracy, and rendering citizens’ votes meaningless. Phillips discarded such procedural concerns because the right to vote is not constitutionally protected, a stance the Supreme Court has repeatedly upheld. Nonetheless, before recognising this issue laid outside of the Court’s purview, Judge Steeh acknowledged the grave concerns associated with communities that lack accountable governance – concerns that transpired. Additionally, PA 436 failed to set operational requirements to consider public health in decision-making. Ed Kurtz, Flint’s Emergency Manager from 2012 to 2013, stated his priority was fiscal, not to safeguard against unsafe drinking water. The short-term financial focus of Ems is often detrimental to a community’s long-term economic stability and health. Combined with a lack of public health expertise and immunity from tort liability, the stage is set for disasters like Flint’s. 

From its inception, the racially charged EM law set out to marginalise minority communities. Its racial dimensions targeted black low-income communities, mandating the violation of their procedural justice rights. This law not only aggravated existing environmental injustices but also fuelled the creation of further disparities in Flint.

Safe Drinking Water Act

In contrast to the EM Law, the Safe Drinking Water Act (SDWA) was enacted to safeguard environmental justice by ensuring safe drinking water across the US. Particularly pertinent to the Flint crisis is the Lead and Copper Rule, promulgated by the SDWA, which recognises the severe health consequences of contamination and sets maximum permissible concentrations in public water systems. Where these standards are breached, citizens are empowered to bring ‘citizen suits’ in court. 

Complaints of SDWA violations surfaced quickly after the water supply switch in 2014, yet it was not until 2016 that the EPA issued an Emergency Response Order. During these years, despite complaints, official guidance to boil water, and scientific evidence of SDWA infringements, the EPA remained idle. This inaction represented a glaring failure of the EPA’s environmental justice commitments. 

A critical SDWA flaw that contributed to this inactivity, as identified by environmental academics Jacobson et al., is the EPA’s authority to delegate enforcement responsibilities to private actors. Against official advice, the appointed Michigan Department of Environmental Quality (MDEQ) permitted the water switch without Optimal Corrosion Control Treatment, violating the Lead and Copper Rule. The agency’s neglect to correct this mistake, alongside the submission of inaccurate information to the EPA, undoubtedly hindered the EPA’s timely intervention. While the Governor’s Task Force placed primary blame upon MDEQ for Flint’s crisis, the errors committed by both agencies were facilitated by the SDWA, which permitted the initial delegation of authority. 

Erin Hodgson, an environmental justice scholar, found barriers to successful citizen suits central to the EPA’s delayed intervention. This also served as a critical obstruction to procedural justice. A crucial impediment is the sixty-day notice period, upheld in Hallstrom v Tillamook City, which hampers immediate action to emergencies. This is critical in emergencies like Flint, where prolonged lead exposure poses severe health consequences. Additionally, citizen suits are restricted if the EPA or State can demonstrate their “diligent” efforts toward resolution, a criterion often met with minimal evidence. In cases where evidence is not immediately available (because, for instance, officials have not taken any action), the sixty-day period gives officials ample time to assemble trivial proof. Meanwhile, citizens are gagged and their health stricken. The lack of awareness about citizen suits poses arguably the most significant barrier, leaving this remedy so underutilised it is almost inaccessible. 

Although intended to protect environmental justice, the SDWA has inadvertently perpetuated injustice. Delegating powers to private agencies without robust oversight, coupled with the convoluted process for citizen suits, led to prolonged government inaction in Flint. Consequently, safe drinking standards were not enforced, exacerbating environmental injustice rather than addressing it.

A Deeper Issue

Both the SDWA and EM laws centralised power in the hands of officials who disregarded Flint’s best interests. The appointment of an EM with unfettered authority intensified the already complex nature of the SDWA: not only leaving citizens poisoned but also without a voice. However, the roots of Flint’s injustice run deeper than the decisions made within the remits of these laws. Flint’s story is incomplete without recognition of the vestiges of colonialism, racism, and segregation embedded into its DNA. 

The “separate but equal” doctrine, receiving judicial reinforcement by the Supreme Court in Plessy v Ferguson, prevailed over half a century. However, this romanticised concept was far from the truth.

The reality: 

“Two societies, one white, one black – separate and unequal.”

The racist underpinnings of the “separate but equal” era were starkly evident in practices like the draining and scrubbing of public swimming pools after their single weekly use by African Americans. This period also saw the popularity of minstrel shows and widespread discrimination in employment and service provision. The Supreme Court case Corrigan v Buckley endorsed racially restrictive covenants that prohibited African Americans from residing in white neighbourhoods; a form of racism institutionalised by lending policies. The Home-Owners Loan Corporation denied federal loans to neighbourhoods “nuisanced” by “infiltrations of lower grade population or different racial groups.” Additionally, the Federal Housing Administration specified that neighbourhoods with “more than 10% Negroes or race other than white” would be ineligible for loans. Whether or not individual actors had racial biases, a neighbourhood’s property values and overall wealth depended on complete segregation, making white flight financially “smart.” Exacerbated by realtors’ blockbusting practices, integrated communities quickly became re-segregated. Black families were systemically relegated to poverty, forced to make disadvantageous home purchases that depreciated despite continued mortgage repayments, ultimately eradicating their ability to build wealth through home ownership.

The economic ramifications extended to public education, where investment was scarce, resulting in poor educational outcomes for children. Whilst Brown v Board of Education rejected the ‘separate but equal’ doctrine in schools, indirect discrimination was unaddressed. Consequently, racialised policies such as assigning school placements based on home addresses maintained systemic segregation, effectively drawing a circle around Black families on a map and relegating their children to dilapidated and overcrowded schools; meanwhile, their white peers attended newer, underutilised schools that were closer to their homes. 

Whilst merely a glimpse into the racial discrimination that positioned Flint as one of the most segregated cities in the US, it is clear Flint’s citizens never stood a chance. Returning to the chessboard metaphor introduced at the beginning of this blog, the true opening move was not the change of water supply but the century of systemic racism, which laid the groundwork for the injustices that ensued. The EM law and SDWA may have aggravated the injustice, but the actual root of the environmental injustice lies in the city’s deeply entrenched history of racial discrimination.

Reform

As articulated by the MCRC, fixing the water supply and repairing the harms of the water crisis, like removing a tumour, will not prevent further racial discrimination if the cancer remains. Safe drinking water is a human right that should not depend on skin colour. Yet, this systemic problem is critical and ongoing in majority-black cities like Jackson, Alabama, and Tennessee – highlighting the need for action on a national scale.

This crisis not only deteriorated water pipes and GM’s facilities but also the residents’ trust in governmental agencies. Restoring this trust requires greater education on systemic racism and its effect in perpetuating disparity. Officials cannot seek to simply do better in the future, policies must be implemented to counteract the continuing harm caused by historic racism. The proposed 2009 Environmental Justice Plan, which, if implemented, may have prevented the tragedy in Flint, offers a valuable framework. A similar strategy would entail an environmental justice plan that ensures meaningful participation, interagency cooperation, and a means for the public to demand responsive State action. Additionally, State employees should receive environmental justice training, promoting improved decision-making through a deeper understanding of structural racialisation and implicit biases.

The laws discussed must also be reformed so as not to aggravate but to address future environmental injustices. EM powers should not be assigned to an unelected appointee where a capable elected mayor is eligible, ensuring accountable democratic governance. If an unelected EM is necessary, their accountability to elected officials must be guaranteed to safeguard procedural justice. Regarding the SDWA, the EPA must more closely monitor its delegated authorities. The sixty-day notice period should be amended to enable emergency suits for severe health threats and greater awareness must be raised about these. Finally, as the current interpretation of ‘diligently’ serves to silence citizens while the State minimises efforts to resolve the problem, a stricter interpretation should be introduced.

What next?

As we mark the tenth anniversary of the crisis this year, Flint continues its enduring struggle for justice. In 2023, a federal judge approved a $626 million settlement for the children of Flint. Whilst a significant victory, water remains contaminated in Flint to this day. Despite the State’s initial promises of reform on the day of reckoning, after seven years and six legal warnings, commitments to the court and the community are yet to be honoured. To date, 15 officials have been indicted, including Governor Snyder, with two counts of wilful neglect. Still, only one individual has been convicted, and the Attorney General announced the cease of further criminal prosecutions last year. The prospects seem poor, but hope is not lost. Earlier this year, a federal court found the State in contempt of its lead pipe replacement obligations. If there is one positive lesson to learn from this tragedy, it is the formidable power of collective action. Flint’s resilience and unity served as a bulwark against systemic racism, proving even the most entrenched injustices can be faced when a community stands together.