Flint Water Crisis: The Aftermath

At the beginning of this year I started blogging about the Flint water crisis, which was spiraling out of control and making national headlines (see my posts here and here). The headlines have moved on, but problems with water infrastructure and services linger.  Cara Cunningham Warren (University of Detroit Mercy School of Law) just released a new paper looking at the broader ramifications of Flint and cooperative federalism of water management, and reports some startling statistics: 

In 2015, at least 3.9 million Americans were exposed to lead in their drinking water at legally unacceptable levels. An additional 18 million Americans are at risk because their water systems are not in compliance with federal rules designed to detect the presence and to ameliorate the impact of lead contamination. What’s more, in 82% of the cases where the violation related to a health standard, no formal state or federal enforcement action was taken.

 The University of Southern California’s Suzanne Dworak-Peck School of Social Work has been doing some great work raising awareness of water issues.  Their online program, Nursing@USC, has offered to post an excellent visual aid explaining the evolution of the Flint water crisis on this blog.  Their infographic, and introduction to it, are below:

One year after the official announcement of elevated lead toxicity in Flint’s water supply, the city’s water is still not safe to drink. While Congress has yet to pass a bill to allocate funds, criminal charges have been filed against state officials and thousands of children have tested positive for toxic levels of lead exposure.

The impact on residents’ wellbeing is devastating—according to the World Health Organization, “the neurological and behavioral effects of lead are believed to be irreversible.” Interim solutions included drinking bottled water, purchasing filters and testing water at home, all of which required families to designate income toward fixing a crisis they could not afford. Roughly 40 percent of the city’s residents live under the poverty level, making it one of the poorest cities in the United States, struggling to pay for a resource that is considered by the U.N. to be a human right.

The crisis has yet to be resolved, just as other incidents of water toxicity have appeared in the District of Columbia, Indiana and Ohio. Clearly Flint is not the only vulnerable city, but the course of action exhibited the dangerous combination of environmental racism and lack of government oversight. The illustration below depicts the series of events that took place, which resulted in a catastrophic event from which lawmakers could learn.

This visual timeline was created by Nursing@USC, the online family nurse practitioner program at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. The program prepares family nurse practitioners to treat physical and behavioral health, address social and environmental factors, and lead positive social change.

Image produced by Nursing@USC

The Florida Record examines my commentary on the Flint water crisis

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

It's always nice when media outlets find, appreciate, and profile your research.  In the wake of the Flint water crisis I wrote about the ways in which the crisis was being used as a proxy for the age-old water privatization vs. human right to water debate.  Journalist Mark Powell of the Florida Record digs into that research in his latest piece, "Infrastructure Lacking in Wake of Flint Water Crisis, says Florida Law Professor."  Article copied below:

With the recent water crisis in Flint, Michigan, an environmental law professor at Florida International University (FIU) took the opportunity to publish a paper on the ethics, law and regulations of our greatest resource.

Ryan Stoa, a law professor at FIU who teaches water resources law, is also the co-director of the International Water Group of the Institute for Water and the Environment. In late February, he published a piece inJurist, which provides academic commentary on prevalent legal issues by law professors and academic experts. In his piece, he highlights both sides of an argument spurred by the Flint water crisis.

The mismanagement of the water supply in Flint had many calling for local government resignations and a law requiring water to be declared a human right. Digging a bit deeper, the debacle has re-invigorated the classic public versus private water supply debate.

Those in favor of water as a government-controlled resource believe it will do away with the corruption of private companies that they believe doomed Flint. In contrast, those in favor of privatization often point to the lack of proper funding in government-controlled programs, and believe Flint’s situation could have been prevented with more oversight.

“I think it is inaccurate to suggest that only one approach can work, when there are many examples of successful public water service providers and private water service providers,” Stoa told the Florida Record. “Along these lines, there are misleading assumptions on both sides.”

Stoa believes that the issue is more complicated than the amount of government involvement, stating that the public and private sectors can–and often do–collaborate to provide the resource.

“Investments in the water sector aren't always invested wisely,” Stoa said. “If funds are available to bolster existing expenditures that usually helps, but re-thinking existing policies may provide some opportunities to improve water systems as well.”

An example of this is the state of Florida, which has a complicated water law system. While Florida does not necessarily privatize its water distribution system, it does give a surprising amount of control to districts, whose parameters are drawn out along hydrologic boundaries.

These districts are often exempt from local or state government overreach unless absolutely necessary. While they are often effective when solving issues within their own districts, they struggle when dealing with problems that occur outside their boundaries.

Despite Florida’s model, it’s easy to see how this model could fail and prove just as ineffective as other systems across the United States. As Stoa points out in his article, the American Society of Civil Engineers gives the country's water infrastructure a D+ rating, yet Congress continues to defund water maintenance.

“Much of our water infrastructure was built to tame and control the natural environment; some of that infrastructure has been effective,” Stoa said. “But re-thinking existing policies may provide some opportunities to improve water systems.”

Water Privatization vs Human Rights: Lessons from Flint

This blog post initially appeared on JURIST.  It can be accessed in its original form here.

Flint River.  Photo: Sarah Razak.

When I teach Water Resources Law to my students, I often start each semester by juxtaposing two competing conceptualizations: water as a private commodity vs. water as a human right.  The contrast demonstrates the diversity in approaches to water management, while foreshadowing the public-private tensions that permeate contemporary water law debates.  Some students are attracted by the promises of privatization, including capital investments to upgrade infrastructure and the efficiencies of allowing market forces to allocate water where it is most valued.  Other students push back, noting the fundamental human need for water as a justification for holding water resources in common, while citing the negative externalities that frustrate attempts to monetize water accurately. 

Both viewpoints are playing out in the wake of the Flint, Michigan water crisis.  Last month I wrote about the rhetoric following the crisis, noting that many critics were echoing the human right to water perspective.   One Michigan state representative even proposed a bill that would declare water to be a human right.  To many observers, the crisis was caused by water managers holding financial considerations above public health and environmental justice.  Indeed, Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was largely a financial one, as the move was projected to save the city $19 million over eight years.  When the Flint city council voted to return to Detroit water, the city’s emergency manager opposed the move on financial grounds.  To many, water cannot be managed with such financial tunnel-vision, and a human right to water might rebalance water managers’ priorities.

But in the last several weeks, another view has (re)emerged.  Some have called for further privatization of water resources.  To these critics, the Flint water crisis is a crisis of public governance, one that may have been avoided had a private utility been in charge.  A private utility would still have received government oversight, while avoiding the messy political battles necessary to receive infrastructural investments.  A private utility, furthermore, would not have enjoyed sovereign immunity, providing an incentive to avoid litigation arising from water contamination.

So, which view is the right view?  It is important to get this right, to extract some broader lessons learned instead of dismissing the Flint ordeal as flukey mismanagement.  On the contrary, water infrastructure is crumbling across the country.   The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, and despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  The upshot of all this is that more and more pressure will be placed on water managers to provide safe, clean drinking water despite all these challenges. 

Just this week, the long-running water troubles experienced by residents of St. Joseph, Louisiana made headlines.  Their water has iron levels thirty-two times higher than the US EPA’s recommendations.  State engineers blame the iron concentration on faulty infrastructure in need of repair.  The small town’s representatives, though, have done little to address the problem.   In places where human and financial resources are scarce it will be difficult to promote sound water management, whether public officials are managing water resources directly or overseeing private operators.  As long as infrastructure continues to deteriorate and little to no resources are allocated to address water problems, we can expect to see more cases like Flint, Michigan, and St.Joseph, Louisiana.

For critics on both sides of the privatization vs. human right spectrum the Flint water crisis is Exhibit A for the need to reform.  Unfortunately, water resources can be mismanaged in many different ways, whether privately or publicly held.  Water users in Flint paid a staggering $864 a year for water.  But a report by Food and Water Watch found that on average private utilities charge more for water than public utilities.  Complicating the matter further are the many water management frameworks that constitute a public-private enterprise.  Around the country there are examples of both public and private water providers working well, while others are struggling to meet the needs of their communities in safe, sustainable, and equitable ways. 

Regardless of which end of the spectrum you’re on, what should be clear is that water is a vital human resource, and to manage it well requires investment and expertise.  In the face of crumbling infrastructure and shrinking budgets, it will be tempting for water managers of any utility to short-change the system in favor of short-term payoffs.  Short-changing Flint’s water quality in favor of cost-saving measures was not a unique trade-off, but rather a circumstance public and private utilities will likely find themselves facing in the future.  If Flint provides one lesson learned, then, it’s that water regulators may want to reconsider the costs and benefits of short-term water management thinking.  The nation’s water infrastructure is in need of repair, and water resources are in need of responsible governance.  There may be more than one way to accomplish those objectives, but it will be hard to do so without significant investments.