The Poisoned City, page 20
As a step toward making amends, Snyder pledged that his office would post his 2014 and 2015 emails related to Flint on a Michigan.gov website.7 This was a concession to months of pressure from citizens and journalists who were unsatisfied with how Michigan’s unusual exemption for the legislature and the governor’s office from public records requests made it nearly impossible to grasp the complexities of the water crisis. Secrecy ran deep. The state had no independent entity to monitor the use of open access laws to make sure they were fair and effective. People requesting public documents were often asked to pay a hefty price for them. And while the law requires a response time of five to fifteen business days for FOIA requests, in practice, a one- to three-month wait was not uncommon. In 2015, Michigan was ranked dead last in the State Integrity Report Card from the Center for Public Integrity, with particularly low marks for public access to information.8 Also, in the first five years of his tenure, Snyder signed bills that did more to conceal the actions of state government than to reveal them, including one that shielded the identity of Michigan’s biggest political donors.
On top of that, the usual public watchdogs—local journalists—struggled to do their jobs in the face of steep cuts. There were fewer feet on the street after significant buyouts and layoffs at the Detroit Free Press and the Detroit News, the state’s largest news outlets, and only a handful of reporters at the Flint Journal. In January 2016, just as the water crisis was making international headlines, the Journal was hit with yet more cuts.9 Lindsey Smith, Michigan Radio’s lead reporter on the water story, was based on the opposite side of the state. Steve Carmody, another go-to reporter for Flint coverage, was often on the road for other stories. East Village Magazine, Flint’s monthly community news journal, depended upon volunteers.
Nearly three hundred pages of emails were put online after Snyder’s speech, and thousands more were added in the months that followed. They helped fill in the gaps to the story, and making them available was an important step in rebuilding faith in government. But as an opt-in form of transparency it felt incomplete. The governor did not compel others to release their emails, and there was no independent way to ensure that what was posted included all of the relevant communications. And it was striking that Snyder did not initially include messages from 2013, the year when the KWA’s contract was signed. Openness was still an at-will gesture for which Michigan residents and newspaper editorial boards had to plead. It wasn’t until March, after a subpoena, that the governor’s office released emails going back to 2011.
What the governor’s office knew and when it knew it were questions that would be disputed for years to come. But the emails were revealing, showcasing a pattern of information mismanagement and misplaced priorities. Snyder had said that he was first briefed “on the potential scope and magnitude of the crisis” only in late September (days after Dr. Mona Hanna-Attisha announced her findings on high lead levels). Going by the digital trail, the governor’s office was indeed told at different times that Flint was in compliance with the Lead and Copper Rule, that a problem existing in one house had been corrected, that the elevated blood-lead levels followed normal seasonal trends, and that there was nothing widespread to address. But the office had also received news that was worrisome enough for close aides to recommend intervention—as two did in the fall of 2014, in the wake of boil-water advisories and the not yet public TTHM contamination, when they asked about reconnecting Flint with Detroit.10
In fact, the executive branch was certainly looped into the concerns about Flint’s water in July 2015 (just after Miguel Del Toral delivered his report). Dennis Muchmore, the governor’s chief of staff, feared that the state was being too dismissive of Flint residents. His message circulated through the health department, which then looked at its lead data, only to conclude a few days later that there was nothing to worry about.11 In September, Muchmore emailed Snyder and his staff: the MDEQ and MDHHS, he noted, “feel that some in Flint are taking the very sensitive issue of children’s exposure to lead and trying to turn it into a political football, claiming the departments are underestimating the impacts on the populations and are particularly trying to shift responsibility to the state,” which had “put an incredible amount of time and effort” into the issue. Muchmore alerted the governor that Flint’s congressman, Dan Kildee, wanted a call with him. “That’s tricky,” he wrote, “… if you don’t talk with him it will just fan the narrative that the state is ducking responsibility. I can’t figure out why the state is responsible except that [the state treasurer] did make the ultimate decision so we’re not able to avoid the subject. The real responsibility rests with the County, city, and KWA.”12
Another report surfacing in the news showed that Veolia, the consulting firm hired to advise the city on its water troubles, had recommended investing $50,000 in corrosion control in early 2015. The company, though, had made this suggestion only in response to aesthetic concerns about brown water. It made no mention of lead.13 Asked why there was nothing in its report about the dangers of not having corrosion control, Veolia said its brief was to focus on taste, color, and odor issues, and on disinfection by-products. Lead contamination was “not part of our scope of work.”14
Against all the backtracking and finger-pointing, praise rained down on Curt Guyette and Michigan Radio for their early coverage of Flint. Guyette was named Journalist of the Year by the Michigan Press Association, an extremely unusual honor for someone working not at a traditional news organization but at the ACLU. He and his collaborators also made a lengthier film—Here’s to Flint, a forty-five-minute documentary that was broadcast nationally via Democracy Now!. Michigan Radio’s online traffic more than tripled from the average in early 2016 and its “Not Safe to Drink” report would soon win some of the industry’s most prestigious awards.15 The accolades made the station’s Steve Carmody uneasy. He was proud of what the news service had done, but he also thought about what might have been different. “It just gnaws on me,” Carmody said, “that when people were saying they can’t drink this water in May or June of 2014, I was taking, ‘Don’t worry, it’s safe’ as an answer from state officials.” He should have seen the crisis earlier, he felt. “It just sticks in my craw.… That will bother me for the rest of my career.”
In retrospect, Michigan Radio, like other news outlets, might have pushed harder, earlier, against official claims that the water was fine. When “there was so much mystery locally” about the water, writers for Flint’s East Village Magazine did their best to report the facts, said Nic Custer, the managing editor. But, he added, “I realize how some of the stuff I put down, that was given to me by people at the city or state level, were just plain lies. It just wasn’t reality.” His voice rose in frustration. “We sat here and argued. I said our water’s poisoned, they said no it’s not, you’re fine.”16
In fifteen years or so, Carmody expects to retire from journalism. “I know on my very last day, I’m going to do a story about Flint water. Not because it’s my last day, and I feel like I have to, or because it’s an anniversary, but because it’s still going to be hurting people in this community.”
II.
In Love Canal, the chemical company that created the toxic dump and the city that built homes on top of it suffered embarrassment and bad press. But liability was another matter. After about fifteen years of legal wrangling, a federal court found that the company was responsible for cleanup costs—it reached a large settlement with New York State—but it was cleared of wrongdoing and not held liable for punitive damages. That is, it wasn’t responsible for the human harm the chemicals caused.17 In the groundwater contamination case in Southern California, made famous in the film Erin Brockovich, the company responsible for the cancer-causing pollution settled the lawsuit without admitting fault. In Toms River, New Jersey, a company that made chemical dyes poisoned the community’s drinking water for decades, and it did everything it could to hide its actions. That case, too, ended in settlement with no admission of wrongdoing. Likewise with a notorious case of water contamination in Woburn, Massachusetts, in the 1980s that was featured in the book A Civil Action. A number of class action suits have been filed against industries profiting from leaded gasoline, paint, and other lead-based products. The suits charged that the industries, which had manufactured a campaign of doubt about the toxic consequences of lead, knew, or should have known, that their products hurt people. Most of these failed in court.
When it comes to the environment and public health, accountability is a slippery thing to pin down. That’s especially true if the contaminants are invisible and their ill effects take years to reveal themselves. Identifying the forces responsible for causing harm becomes even harder when the violation is viewed through the prism of environmental justice, which looks at the links between place, pollution, and power. The EPA created its Office for Environmental Justice in 1992, one year after the passage of the Lead and Copper Rule. Its goal is to ensure that all people are equally protected by environmental laws, and that no groups of people “bear a disproportionate share of the negative environmental consequences”—pollution and toxic hazards—caused by government, industry, or business.18 Environmental justice hinges on two simple democratic concepts: people are entitled to have a meaningful voice in decisions that affect the health of where they live; and, while majorities may rule, minority groups have the same inalienable rights, which cannot be taken away by others.
Just as it was once difficult to prove that the symptoms of lead poisoning were the direct result of lead exposure, so it is hard to prove environmental injustice. In law, so much depends on showing intention, or motive, to cause harm. But in environmental crimes—a school built on top of hazardous chemicals, a water system turned toxic—it is unlikely that anyone purposefully tried to poison children or deliberately contaminated the drinking water. The people weren’t targeted one way or another. And no single decision can be blamed for the harm. Much like the structural forces over several decades that left Flint half-empty, evil intent is not necessary for evil consequences.19
If you asked people in Flint what a just outcome would look like, accountability in a court of law would be one essential piece of it. That’s how democracy is supposed to work, after all. In late 2015 and 2016, a host of lawsuits were filed relating to the poisoned water: lead, Legionella, damaged plumbing, lost property values, expensive bills paid for water that was not fit to drink. Jan Burgess, the legally blind woman who sent an early complaint to the EPA, became the lead plaintiff in a suit against the federal agency. Melissa Mays was a lead plaintiff in several class action suits. LeeAnne Walters, now living in Virginia, filed an individual suit on behalf of her four children, who still had health issues.
As with other historic environmental cases, these were expected to take years to resolve, unfolding even as the plaintiffs kept an eye on their children, wondering how, or if, they had been hurt. The Flint cases also involved unique challenges because they were aimed at public agencies and public servants (and the engineering consultants who worked on their behalf), rather than a private company. In Michigan, high-ranking officials have legal immunity for decisions made in the course of doing their jobs. (Lower-ranking officials may still be charged with “gross negligence.”20) Immunity did not, however, protect the state from charges of violating residents’ constitutional rights. Some cases argued that the crisis had betrayed the plaintiffs’ “fundamental liberty interest to bodily integrity” or that it was racially discriminatory. However the charges were framed, though, the cases faced an uphill battle. The law, as it stands now, just isn’t well equipped to respond to something like this.
But there was one early victory, and it was big. Almost three years after the ill-fated water switch, a federal judge approved a historic settlement in the class action lawsuit filed by Melissa Mays, the Concerned Pastors for Social Action, the Natural Resources Defense Council, and the ACLU of Michigan (where Curt Guyette was still at it). As part of the deal, the state agreed to pay $87 million for the city to locate eighteen thousand lead and galvanized steel water lines and replace them with copper by 2020, at no cost to homeowners. All households with an active water account were covered, including those with overdue bills, but not vacant homes. The state was also obliged to put an additional $10 million in reserve for potential cost overruns and emergencies, and to pay $895,000 to cover the plaintiffs’ legal costs.
The deal outlined a strategy for the state’s relief efforts. Support from Washington waned when Flint’s federal emergency declaration expired, after an extension, in August 2016. The state kept the water distribution sites open but, per the settlement, it could begin closing them as demand tapered off. (Five closed in 2017, and, to the grave dismay of Flint residents, the program shut down entirely, with very little warning, in April 2018.21) It would, however, expand the program for installing and maintaining water filters for residents. That included Spanish-language advertising. People would still be able to call the city’s 211 phone line for free water deliveries within twenty-four hours, though that service could be canceled pending the results of future water tests. The Medicaid expansion for Flint residents would be extended through March 2021.
The settlement was cause for great celebration. “Flint proved that even while poisoned … we are not just victims. We are fighters,” said Mays after it was approved. “While this does not fix everything, it’s a good start.”22 The New York Times editorial board cheered them on: “Michigan Is Forced to Do Right By Flint, Finally.”23
Advocates for Flint’s children got another big win in April 2018 when, in a partial settlement for a separate class action case, the state agreed to spend $4.1 million to create a school-based screening program for tens of thousands of children who were exposed to the water. Directed by Dr. Mona Hanna-Attisha, it would help determine the health and special education needs of the children, and it would also provide training for school staff to better identify children who may be harmed by lead.24 But all this was hardly the end of the state’s dealings in court. Michigan continued to defend itself against charges of individual suffering and unequal protection. One point of contention: whether or not emergency managers should be considered state officials. The state said they should not.
If justice for Flint meant charges against those whose decisions created and prolonged the crisis, there was some hope. The criminal and civil investigations initiated by the Michigan attorney general began with an abundance of resources: the team had up to eighteen lawyers, twelve investigators, and a host of supporting staff. By October 2016, it had spent $2.3 million of the $4.9 million that was initially allocated to it by the Michigan legislature; as the cases proceeded, though, its means dwindled. And it had an odd bifurcated role. Led by a special prosecutor, the investigation had been promised independence. But Attorney General Bill Schuette was obliged to represent the state’s interests, and he did so by fighting for the state in all those other lawsuits. Millions of state dollars also paid the defense bills for just about everyone involved with Flint’s water at the environmental and health departments, and the city, as well as the former emergency managers. Michigan was essentially funding both the prosecution and the defense of the Flint water cases.25 Schuette was also widely expected to run for state governor in 2018, succeeding the term-limited Snyder, which led many to wonder if the investigation wasn’t just so much political peacocking. So it was dizzying to see Schuette stand up at press conferences and use sharp language to announce the first three indictments.
The sensational news came in April 2016. Stephen Busch and Mike Prysby of the MDEQ faced charges of misconduct, neglect of duty, tampering with evidence, and violations of the Michigan Safe Drinking Water Act. They were also accused of impeding an investigation into the Legionnaires’ outbreak, which later brought involuntary manslaughter charges. “We allege and we will prove that Mr. Busch and Mr. Prysby altered test results which endangered the health of citizens and families of Flint,” Schuette declared. Busch in particular had falsely claimed to the EPA that the Flint plant had optimized corrosion control, and both men were charged with ordering Michael Glasgow, the utilities administrator, to alter the 2015 report on lead in the city’s water to misleadingly lower the levels. When the indictments were announced, both men were suspended from their jobs. The third person charged was Glasgow himself. The man who had flagged the modified test results and had worried about the treatment plant’s capabilities from the very beginning swiftly reached a plea deal with investigators. He said that the MDEQ officials explicitly told him to change the report.26
More indictments came in July: six state employees were hit with criminal charges, three at the MDHHS and three at the MDEQ. Among other charges, the prosecutors included the acts of burying an epidemiologist’s report that showed a spike in blood-lead levels in Flint’s children after the city’s water switch, deleting emails about the report, and ignoring its findings. They were charged variously with misconduct in office, conspiring to commit misconduct in office, and willful neglect of duty. The MDEQ’s Liane Shekter-Smith was also later charged with involuntary manslaughter. After her initial reassignment—to handle open records requests, of all things—the drinking water chief had been suspended and then terminated months earlier. She remained the only person who was fired because of the Flint water crisis.
By the end of 2016, the criminal investigation had reached another tier of responsibility. Emergency managers Darnell Earley and Jerry Ambrose were variously indicted for false pretenses, obstructing an investigation, and involuntary manslaughter.27 “All too prevalent in this Flint water investigation is a priority on balance sheets and finances rather than the health and safety of the citizens of Flint,” Attorney General Bill Schuette said.28 The cases focused on the strategy to fund the Karegnondi Water Authority: the administrative consent order, or ACO. Schuette called it a “sham,” though it did not escape notice that one of his own assistants had signed off on the deal.29 Earley, who defended himself shortly after the switchback to Lake Huron water in a column he penned for the Detroit News, had stepped down from his post as emergency manager for the Detroit school district many months earlier, when the Flint crisis was exploding in national news. In his op-ed, Earley argued that the switch to the KWA was initiated by local leaders who “were in no way coerced” by the state or the EM, and that his job was to “oversee the implementation of the previously accepted and approved plans.… It did not fall to me to question, second guess or invalidate the actions taken prior to my appointment.” Investigators didn’t see it that way, however. In addition, Howard Croft, the former public works director, was accused of aiding and abetting Earley and Ambrose, and working to require the use of water treated at a plant that was unfit for service. Later, an involuntary manslaughter charge was added to his case, too.31
