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06/15/2021 | Press release | Distributed by Public on 06/14/2021 10:59

Human Rights, Environmental Justice, and Climate Change: Flint, Michigan

Former Michigan Governor Rick Snyder and eight other state government officials are facing criminal charges for their alleged roles in the disastrous Flint, Michigan, drinking water crisis of roughly seven years ago. Those officials face 42 felony and misdemeanor counts, which range from perjury to official misconduct in office to extortion to obstruction of justice to willful neglect of duty to involuntary manslaughter. This drinking water debacle resulted in at least 12 deaths and at least 90 people sickened with Legionnaires' disease after untreated water from the Flint River caused bacteria and lead to leach into homes with lead service lines, poisoning the water system of this predominantly African American city.

Recognition of the relationship between clean drinking water, lead pipes, and human health is not at all new. Marcus Vitruvius Pollio, a Roman architect and engineer, recognized this relationship as far back as the first century B.C. In his influential treatise entitled, The Ten Books on Architecture, Vitruvius provided specific instructions on using clay pipes instead of lead pipes to provide houses with clean drinking water. He stated:

Clay pipes for conducting water have the following advantages. In the first place, in construction: if anything happens to them, anybody can repair the damage. Secondly, water from clay pipes is much more wholesome than that which is conducted through lead pipes, because lead is found to be harmful for the reason that white lead is derived from it, and this is said to be harmful to the human system. Hence, if what is produced from it is harmful, no doubt the thing itself is not wholesome.

This we can exemplify from plumbers, since in them the natural colour of the body is replaced by a deep pallor. For when lead is smelted in casting, the fumes from it settle upon members, and day after day burn out and take away all the virtues of the blood from their limbs. Hence, water ought by no means to be conducted in lead pipes, if we want to have it wholesome.

The Flint drinking water crisis raises substantive human rights, environmental justice, and climate change issues.

GEORGE THOMAS ON FLICKR

Thus, more than 2,000 years ago, Vitruvius realized that lead is highly toxic and, therefore, poisonous because it interferes with some of the body's basic functions. Without the benefit of modern medical technology, he was able to observe the adverse health effects of lead exposure.

Today's U.S. Centers for Disease Control and Prevention has concluded that there is no 'safe' level for lead exposure in drinking water and that the consequences of lead poisoning are lifelong and often debilitating. Even five parts per billion is a cause for serious concern because lead has the potential to harm almost every organ in the human body. Children, in particular, are at risk of experiencing behavioral and learning problems, slowed growth, hyperactivity, and anemia as a result of exposure.

In low levels, it is generally accepted among the scientific community and public health professionals that lead can cause in children:

  • Nervous system and kidney damage
  • Learning disabilities, attention deficit disorder, and decreased intelligence
  • Speech, language, and behavior problems
  • Poor muscle coordination
  • Decreased muscle and bone growth
  • Hearing damage

Although children are especially susceptible to lead exposure, lead can also be dangerous for adults. In adults, high lead levels can cause:

  • Increased chance of illness during pregnancy
  • Harm to a fetus, including brain damage or death
  • Fertility problems (in men and women)
  • High blood pressure
  • Digestive problems
  • Nerve disorders
  • Memory and concentration problems
  • Muscle and joint pain

Health studies have documented that nearly 10,000 children were poisoned by exposure to high levels of lead in the Flint drinking water. In March 2015, a test of the drinking water in one Flint home uncovered concentrations of lead more than 25 times higher than the level deemed actionable by the U.S. Environmental Protection Agency (EPA). Subsequent testing indicated lead levels that far exceeded EPA's criteria for classifying water as a hazardous waste. On a March 15, 2020, CBS News' 60 Minutes segment, the heroic Flint pediatrician, Dr. Mona Hanna-Attisha, reported that early results from 174 children showed that 80 percent of them will require special education services throughout their education because of learning disabilities.

As will be discussed in this article, the Flint drinking water crisis raises substantive human rights, environmental justice, and climate change issues.

Access to Clean Drinking Water Is a Human Right

Vitruvius also recognized the relationship between clean drinking water and public health in his influential treatise. He provided specific instructions on the selection of springs to provide houses with clean drinking water:

For it is obvious that nothing in the world is so necessary for use as water, seeing that any living creature can, if deprived of grain or fruit or meat or fish, or anyone of them, support life by using other foodstuffs; but without water[,] no animal nor any proper food can be produced, kept in good condition, or prepared. Consequently[,] we must take great care and pains in searching for springs and selecting them, keeping in view the health of mankind.

Springs should be tested and proved in advance in the following ways. If they run free and open, inspect and observe the physique of the people who dwell in the vicinity before beginning to conduct the water, and if their frames are strong, their complexion fresh, legs sound, and eyes clear, the spring deserves complete approval.

Consistent with Vitruvius's admonition, in a historic vote on July 28, 2010, the United Nations (UN) General Assembly declared that safe and clean drinking water is a fundamental human right. Resolution 64/292 specifically states that the UN: 'recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.' By a vote of 122 in favor to none against, with 41 abstentions, the General Assembly adopted Resolution 64/292. The resolution urges member countries and international organizations to provide financial resources, build capacity, and transfer technology, particularly to developing countries, 'in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.' The United States was one of the 41 countries that abstained from voting in favor of the resolution. The U.S. representative was concerned with whether this human right was an enforceable right, whether internationally or domestically.

In 2014, an unelected emergency manager appointed by the former Michigan governor to run the city made a crucial decision. Prior to April 30, 2014, Flint purchased treated water from Detroit Water and Sewerage, which contained orthophosphate, a corrosion-inhibiting chemical used to control lead and copper levels in the drinking water. When Flint switched to the highly contaminated Flint River as its water source on April 30, 2014, the orthophosphate treatment was not continued. Consequently, in the absence of any corrosion control treatment, lead levels in drinking water were expected to increase.

Thus, a major concern from a public health standpoint should have been for residents who live in homes with lead service lines, which was common throughout Flint. In 2014, residents immediately began reporting that there were color and odor problems with the water. Over the following months, however, residents were twice advised to boil water because of the presence of dangerous levels of bacteria. In January 2015, residents were told by the city that elevated levels of carcinogenic trihalomethanes were detected, but officials insisted that the water remained safe to drink. In February 2015, the public health risk escalated as lead was identified in the drinking water. In April 2015, the EPA discovered that orthophosphate had not been added. In August and September 2015, private researchers identified numerous homes with lead contamination. In October 2015, Flint switched back to purchasing treated water from Detroit Water and Sewerage.

However, according to Congressman Dan Kildee, who represents and lives in Flint, was born in Flint, grew up in Flint, and raised his family in Flint: 'Access to clean drinking water is a basic human right. It's something that's necessary to sustain human life. . . . Poisoned water is a clear reminder that in most states of this country, there is no recognition of a citizen's right to safe and clean drinking water.'

Flint: National Example of Environmental Injustice

Environmental injustice can be defined as the disproportionate exposure of Black, brown, Indigenous, and/or low-income communities to environmental harms and risks, as compared to other communities, and its concomitant adverse effects on the health and the environment of those communities. Moreover, environmental injustice refers to the unequal enforcement by federal, state, and local government regulatory agencies of protective environmental laws, regulations, policies, and programs.

At the time of the inception of the water crisis, Flint had a population of 102,434, according to the U.S. Census Bureau. However, in accordance with the EPA's Lead and Copper Rule, all large water systems (serving greater than 50,000 persons) are required to install and maintain corrosion control treatment for lead and copper. Thus, Michigan officials arguably violated federal regulations when the EPA discovered in April 2015 that the necessary corrosion control measures had not been added in Flint's water treatment process since the April 2014 source switch decision.

Moreover, those state officials knew or should have known how contaminated the Flint River was and is. It was common knowledge that, after decades of industrial dumping by Flint's mammoth General Motors (GM) plant and its suppliers, the Flint River became polluted. Moreover, shortly after the April 2014 decision to use Flint River water, GM announced that the water was causing corrosion on newly machined engine parts. A question may be posed: Was the 2014 decision by the state-appointed emergency manager to switch to Flint River water based on people who lived in Flint?

Demographically, the racial makeup of the city is as follows: 57 percent are Black; 37 percent are white; and 6 percent are other races. Flint is one of the poorest cities in the United States in that about half of all households earn less than $26,330 a year, and 41.2 percent of the population live below the federal poverty line. Social scientists have pointed out that the closing or relocation to elsewhere of various GM plants in Flint in the 1980s and early 1990s left the city with a shrinking economy and dwindling population. Furthermore, ineffective city planning, the lack of economic diversity, and increased competition for funding and resources with the suburbs all played a part in Flint's depressing poverty rate.

Moreover, in a February 2016 American Journal of Public Health article entitled, 'Flint, Michigan: A Century of Environmental Injustice,' Professor David Rosner argued that the Flint water crisis in the former GM stronghold was a byproduct of a century of exploitation by the auto industry. Consequently, he discussed Flint's 'industrially polluted landscape.' For example, Flint is home to 25 superfund sites, which is land that has been contaminated by hazardous wastes and identified by the EPA as a candidate for cleanup because it poses a risk to human health and the environment. Currently, Flint has 12 active superfund sites at which site assessment, removal, remedial, enforcement, cost-recovery, or oversight activities are being planned or conducted under the federal hazardous waste cleanup program.

In sum, Flint is a majority poor Black city disproportionately exposed to environmental harms and risks as a result of the disposal practices of the auto industry over decades. Then, it suffers a major water crisis as a direct result of decisions made by state officials. In March 2016, Governor Snyder's nonpartisan Flint Water Advisory Task Force released its final report, which stated that Flint's poor, largely African American population 'did not enjoy the same degree of protection from environmental hazards as that provided to other communities.' The task force characterized the water crisis as a clear-cut example of environmental injustice.

Climate Change Adversely Affects Drinking Water

The UN Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation has declared that 1 to 2 billion people may not have access to adequate water because of climate change.

Flint has started replacing service lines connecting homes and businesses to city water mains in the wake of the water crisis. Since 2016, Flint has inspected more than 25,000 service lines and replaced 9,554 lead and galvanized pipes. Another 3,000 service lines need to be inspected. The program is roughly 85 percent complete but behind schedule. The COVID-19 outbreak caused a delay in the lead pipe replacements.

The 2018 Detroit Water Quality Report discussed the fact that immuno-compromised people may be more vulnerable to contaminants in drinking water than the general population. A July 2009 study entitled, Lead Exposure and Its Impact on Immune Systems: A Review, discussed the growing concern among health and environmental scientists of the impact of exposure to heavy metal on human health. The Flint children have been poisoned by lead and, therefore, have had their immune systems compromised.

Climate change will only exacerbate this public health problem, according to the September 2019 report by Columbia University's Earth Institute. The report entitled, How Climate Change Impacts Our Water, discussed how heavy rains will increase surface runoff, and that this moving water will strip nutrients from the soil and pick up pollutants. Consequently, those contaminants will adversely affect the nation's water supplies. The report pointed out that the Fifth National Climate Assessment finds that water quality is already diminishing in many parts of the United States, 'particularly due to increasing sediment and contaminant concentrations after heavy downpours.'

Due to more extreme weather events linked to climate change, the water levels of the Great Lakes vary dramatically year to year. The water level of Lake Huron in 2020 continued to rise because of the record rains. Unfortunately, the runoffs are flushing a greater number of contaminants into Lake Huron, which is an important water source for Detroit Water and Sewerage, and, consequently, Flint.

Conclusion

Michigan officials and community-based organizations need more 'tools in the toolbox' to ensure that another Flint situation does not ever occur. Michigan needs an Environmental Rights Amendment (ERA); environmental justice legislation; and climate justice legislation.

First, an ERA, placed in the bill of rights section of a state constitution, creates a constitutional mandate that each person, regardless of race, color, national origin, or income, has an inalienable right to clean air, clean land, and clean water that is enforceable by state courts. These 'Green Amendments' are manifestations of constitutional environmentalism and provide a mechanism to imbed environmental justice for all as a substantive obligation of government, not merely as an aspirational goal. Where ERAs exist (Montana, Pennsylvania, Rhode Island, Hawaii, Illinois, and Massachusetts), they are the primary statement of environmental policy in a state.

Michigan has evocative language in its constitution. Currently, Article IV, Section 52, provides: 'The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.' Section 52 is a statement of legislative power. It is not a mandatory duty. The constitutional mandate is satisfied by the enactment of general legislation such as the Michigan Environmental Protection Act. Moreover, it does not confer standing to any citizen to bring a claim for a violation of the state's constitution.

Imagine, for a moment, if Michigan had a simple and straightforward ERA like New York's impending self-executing provision, which states, 'Each person shall have a right to clean air and water, and a healthful environment.' That proposed ERA (Article I, Section 19) will be inserted in the state constitution's bill of rights section, together with the right to freedom of worship, the right to freedom of speech and press, as well as the right to equal protection of the laws. The proposed ERA will be put before the voters via a November 2, 2021, referendum.

Second, where a state constitution has an ERA, state law providing for environmental justice for all becomes more achievable. On January 1, 2020, New York added Article 48 to its Environmental Conservation Law. Among other things, Article 48 declares that it is now state policy that 'all people, regardless of race, color, religion, national origin or income, have a right to fair treatment and meaningful involvement in the development, implementation and enforcement of laws, regulations and policies that affect the quality of the environment.' Moreover, it is now state policy that 'no group of people, including a racial, ethnic or socioeconomic group of people, should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, or commercial operations, or the execution of federal, state, local, and tribal programs and policies.' New York clearly has a robust environmental justice program. One could easily surmise that if Michigan had comprehensive environmental justice legislation similar to New York's, the concerns of Flint residents would have been addressed differently by state officials.

Third, sea level rise and heavier rainstorms driven by global warming are sending more water into lakes, rivers, and streams as well as neighborhoods. On July 18, 2019, New York's Climate Leadership and Community Protection Act was enacted into law, which called for a dramatic decrease in greenhouse gas emissions to address the grave threats posed by climate change identified in the law. Of importance, the law established the Climate Justice Working Group, which advises the Climate Action Council that has the responsibility of developing the final criteria for identifying disadvantaged communities based on considerations related to public health, environmental hazards, and socioeconomic factors. Flint probably would have been identified as a disadvantaged community under this law.

In conclusion, section 101(c) of the National Environmental Policy Act of 1969, the first major environmental law in the United States, states: 'The Congress recognizes that each person should enjoy a healthful environment. . . .' Although the United States has enacted numerous laws to protect the environment and human health, federal courts have not rendered a decision establishing this as an expressed legal right. However, state courts have rendered decisions indicating that there is an enforceable substantive right to a clean and healthful environment based on state constitutions. Community-based organizations in Flint, most assuredly, would argue that the principle 'that each person should enjoy a healthful environment' should be taken literally.

Authors

Barry E. Hill

Visiting Scholar, Environmental Law Institute; Adjunct Professor, Vermont Law School

Barry E. Hill is a visiting scholar at the Environmental Law Institute and an adjunct professor at Vermont Law School. He served as director of the U.S. Environmental Protection Agency's Office of Environmental Justice from 1998-2007.