Michigan prosecutors last Thursday announced that 9 individuals have been indicted on a total of 42 counts related to a series of alleged actions and inactions that created the Flint water crisis.
Interestingly, the Chief Judge of the Seventh Circuit in Genesee County appointed Judge David Newblatt to act as a one-man grand jury to investigate crimes related to the crisis. Indictments were issued after that sole grand juror secretly listened to and evaluated the evidence presented for 12 months.
“But why these criminal cases are so significant is it is incredibly rare that a public official is charged criminally for government actions or inactions related to environmental matters.”
Secrecy of grand jury proceedings have not allowed for release of the grand jury evidence underlying the charges, but as many will remember, in April 2014, the public water supply serving more than 100,000 homes, schools and businesses within the City of Flint was switched from water sourced from the Detroit water system using Lake Huron to the Flint River, in an effort to save $5 Million in the first 2 years. There is no real factual dispute that as a result of the corrosivity of the water, lead from aging pipes leached into the water supply. General Motors stopped using the public water in October 2014 after determining it was corroding automobile parts. It is alleged that as many as 12,000 children were exposed to drinking water with high levels of lead. It is also alleged that the water supply change was the cause of an outbreak of Legionnaire’s Disease that killed 12 people and affected another 85, but that link appears a bit fuzzy.
A large scale lead pipe replacement effort has been underway since 2016. On August 20, 2020, the victims of the water crisis were awarded a combined settlement of $600 million, with 80% going to the families of affected children and in November that settlement increased by a predetermined formula to $641 million.
But, again, the big news is that former Michigan Governor Rick Snyder and 8 other former officials were charged criminally. Read Rick Snyder’s Grand Jury Indictment, which may be long on the shadow it casts against those who may seek public service (or for that matter public work), but short on any facts. Two were charged with involuntary manslaughter. The indictments make clear the charges flow from the government determination in 2014 to switch the water supply from the Detroit water system to the Flint River as a cost cutting measure without properly considering the possible impact on human health.
“In 2021, people across the U.S. are beginning to question determinations made by public officials to have adopted building codes and indoor air quality standards that result in reduced energy use versus prioritizing ventilation to protect human health, having the effect of creating office buildings, schools, and homes with indoor air quality conditions ripe for the airborne spread of SARS-CoV-2 (the current designation for what had been the Novel Coronavirus 2019).”
At a time when matters of environmental social justice are at the fore, communities have, maybe for the first time, vocally questioned government funded cleanup of nonpotable water courses, largely used by the wealthy to boat and otherwise recreate, in lieu of using the public dollars to cleanup lead in drinking water?
Moreover, this has renewed the debate over why local governments are providers of water and what the role of the private sector should ideally be?
In 2015 the Detroit Free Press described the Flint water crisis as “an obscene failure of government,” and it is beyond dispute that federal, state and local government failed. and there is no doubt this is a particularly egregious instance of environmental harm. Hence the reason for the criminal charges against public officials, as rare as that is. But that has caused some to ask why federal EPA officials were not indicted, the agency that has ultimate oversight authority of drinking water quality? Many expect more and similar criminal charges against public officials in other instances in the years to come.
The defendants turned themselves in and were arraigned last Thursday, but many will recall the people spoke in the Michigan election of 2018 when this environmental crisis was timely, Democrats swept all of the statewide offices held by Republicans (Republican Governor Rick Snyder was term limited). Anyone concerned if the criminalization of bad environmental public policy is a good thing should follow the cases.