Flint, Water Safety & Public Health Infrastructure

Wendy. E. Parmet

Director, Center for Health Policy & Law

Northeastern University

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“ The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay,

inaction, and environmental injustice.”

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Timeline

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Nov. 2011

Governor appoints Emergency

Manager (EM)

Agreement signed to switch water

supply

Apr. 2013 Mar. 2014

EM decides to use water from Flint River pending new system

Mar. 2014

Apr. 2014

Water supply is switched

June 2014

Residents complain about water quality

Aug. 2014

Flint water tests positive for e-coli; boil

water alert issued

Timeline

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Oct. 2014

GM stops using Flint water

Mayor says water is safe

Jan. 2015

EPA questions water safety

Mar. 2014

Aug. 2015

State declares two water samples showing

high lead invalid

Aug. 2015

Virginia Tech researchers publish study showing high

levels in Flint water

Aug. 2015 Jan. 2015

Outbreak of Legionnaire’s disease

detected

Timeline

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Dec. 2015 Oct. 2015

Public health emergency declared; Flint reconnects to

Detroit water

Mayor and Governor declare states of

emergency

Mar. 2016

US HHS approves extended Medicaid coverage to children

of Flint

Mar. 2014

Apr. 2016

First criminal charges brought

Dec. 2016

Congress passes $170 million aid for Flint

Sept. 2015

Dr. Mona Hanna-Attish reports blood lead levels

have doubled in Flint children since the switch

Jan. 2016

President declares state of emergency

Health Impact

• At least 87 cases of Legionnaire’s disease • 9 deaths

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• 50 % increase in children < 6 with elevated blood lead levels (> 5 ųg/dL) • 5 % of children < 6 had elevated blood lead levels:

“lead affects children’s brain development resulting in reduced intelligent quotient (IQ), behavioral changes such as shortening of attention span and increased antisocial behavior, and reduced educational attainment. Lead exposure also causes anemia, hypertension, renal impairment, immunotoxicity and toxicity to the reproductive organs. The neurological and behavioral effects of lead are believed to be irreversible.” WHO

Over 60 Civil Suits

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Photo credit: ACLU of Michigan

Federal Claims

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Constitutional:

• Substantive Due Process – State Created Danger

• Substantive Due Process – Violation of Bodily Integrity

• Equal Protection

• Contracts Clause

• Takings Clause -- Inverse Condemnation

Environmental Claims

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Safe Drinking Water Act: Lead & Copper Rule

• Requires monitoring , corrosion control & mitigation

• Requires consumer notification

• Creates Private Right of Action for Injunctive Relief

• Concerned Pastors for Social Action v. Khouri (E.D. Mich.

2016)(rejected motion to dismiss request for injunctive

relief under SDWA)

• Boler v. Early (ED Mich. 2016)(app. pending)(SDWA

violation cannot form basis for 1983 claim)

State Claims

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Gross Negligence

Conversion

Unjust Enrichment Nuisance

Breach of Contract Breach of Warranty

Consumer Protection

Substantive Due Process

Defenses & Hurdles

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• Lack of a “Right to Public Health Protection” –DeShaney v. Winnebago County –SDP claims available only in narrow circumstances

• Immunities – Federal Qualified Immunity – Michigan Tort Claims Act

Absolute immunity for highest executive officers in a jurisdiction Other officials immune except for gross negligence Cites immune with limited exceptions including for proprietary functions

• Equal Protection – must prove invidious intent

• No Public Duty Doctrine

13 Criminal Cases

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Defendants include:

• Dep’t of Environmental Quality Employees • Flint Laboratory and Water Quality Supervisor • Michigan Dep’t of Health & Human Services Employees

Charges include:

• False Pretenses • Misconduct in Office (for failing to provide safe water and protecting the public health) • Conspiracy to tamper with and tampering with evidence • Violating Michigan Safe Drinking Water Act – including manipulating collection samples • Willful neglect of duty

Mitigation Steps

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Jan. 2016 – Obama issued emergency declaration • But Flint was ineligible for a federal disaster declaration.

March 2016 – HHS approved $3.6 million expansion for Head Start and Early Head Start in Flint

May 2016 -- Expansion of Medicaid Coverage for 15,000 children in Flint

Dec. 2016 -- Congressional Appropriates $170 million for Flint and other communities

Beyond Flint: The Lead Problem

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“A Reuters examination of lead testing results across the country found almost 3,000 areas with poisoning rates far higher than in the tainted Michigan city.” Reuters Investigates, Feb. 19, 2016

12 states (of 27 reporting) have a higher percentage of children under 6 with lead levels above 5 micrograms per deciliter

8.5 % of children in Pennsylvania have high lead levels

Beyond Flint: Law Reform

Reforming Emergency Manager Laws HR 4754 (Emergency Financial Manager Reform Act of 2016) Michigan’s law upheld by federal court in 2016

Rethinking the Siloing of Public Health & Environmental Protection

Health in All Policies

Rethinking Immunities

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What happens when the harm is caused by negligence, rather than criminal actions?

How do we implement policies that protect

communities and hold government responsible for public health?