The Legal Discourse Surrounding the Water Crisis in Flint,Michigan: Interview with Sheila R. Foster

Dr. Sylvia Hood Washington: Sheila, I am deeply grateful that you have agreed to this interview. I hold your scholarly contribution to the field of environmental justice in high regard. I have used your work for my first book, Packing Them: An Archaeology of Environmental Racism in Chicago , 1865–1954 (2005, Lexington Books) and again when I wrote my National Science Foundation research grant , Engineering, Infrastructures and Environmental Justice (2006–2009) . My research, like many of our colleagues in the environmental justice field, always comes back down to the field of law particularly civil rights and environmental protection laws. We really want to hear your legal perspectives about the environmental situation in Flint, Michigan.

The first question that I have pertains to the Voting Rights Act of 1965. So please start with giving us your legal background as a scholar; and then share with us your thoughts about how the Voting Rights Act has played out from an environmental justice perspective for the residents of Flint. Finally, what are the legal lessons learned for future environmental justice scenarios in the United States moving forward?

Prof. Foster: So my background is that I began writing about environmental justice as a young scholar and, I think most importantly, joined up with the late Luke Cole, who was founder of the Center on Race, Poverty and the Environment. I co-authored with him what I think is now one of the standard texts in the field.

Dr. Washington: You are referring to the book From the Ground Up?

Prof. Foster: Yes, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York University Press, 2001). We wanted to look at the way in which the law interacts with a grassroots movement that was founded in communities and by community members to intervene in the decisions that local, state, and federal lawmakers make about their communities, where particular land uses are placed, and what kind of laws and decision-making processes are available to protect them and to make sure that their voices are heard.

So our book framed the debate as one that goes to the core of environmental justice and that really inquires whether our civil rights and our anti-discrimination laws reach this kind of problem and whether they have lived up to their promise. We also looked at the relationship to another body of law, which is environmental and public health law and whether there are protections, either procedural or substantive protections, that can help particularly vulnerable communities who are overexposed to environmental hazards and other toxins.

Then, separately, I have done a lot of writing on the applicability of both civil rights and environmental laws in this area, and I to try to ask, “What is it that we mean by environmental equality and environmental justice, and how effective are our laws at achieving those goals?”

There is potential there, but I think as we have seen many, many years later, 20 or even 30 years at this point, that the laws have not been particularly effective for these communities.

So on the voting rights question, part of the Voting Rights Act of 1965 and the right to vote and the equal right to vote, which is part of our Constitution in the 15th Amendment, is to ensure that people have access to and a voice in the democratic process, both to elect the officials of their choice, to have their vote count as much as anyone else's vote, to make sure that one person equals one vote, and that every person is empowered in our democratic system.

The Voting Rights Act, as with many civil rights laws, is partially a success and partially a failure. It is partially a success because African Americans have the franchise in ways that they did not over 50 years ago. It is partly a failure because African Americans are still subject to disenfranchisement in ways that are somewhat similar and somewhat different than was the case 50 years ago.

Dr. Washington: The reason why I ask you this question is because I am a member of the State of Illinois' Environmental Justice Commission, which has seen a great deal of community environmental justice issues that are struggling with equal environmental protection and environmental enforcement. As an environmental justice historian, I will say there had been some hope prior to 1965 attached to using this franchise to correct unequal environmental protections. Flint occurred when African Americans have the franchise—and at least the theoretical ability for self-determination and protection of public health. One would have thought these environmental equalities would have naturally evolved for the city after a series of African-American mayors and then at least a democratically elected European-American mayor just prior to the city being taken over by an appointed emergency manager. This obviously did not happen. Can you explain to us why you think the current situation is the one that transpired?

Prof. Foster: My understanding of what partially happened here is that the mayor and local officials were not fully empowered to make the kinds of decisions that normally they might have made, particularly with an African-American mayor and a majority African-American city to protect its residents, when the decision to switch water sources was made.

Because of the state takeover of Flint, state officials far removed from the local franchise, from local residents, were making these decisions. That is my understanding of partly the way this has unfolded over time.

So when a state-level official, whether it is the governor, or the Department of Environmental Protection, or any other agency at a level higher than the local level, the fear always is that they will make decisions and be less accountable to the local populace and less sensitive to the concerns of the local populace, simply because they are a step removed and they are making decisions for the entire state.

Therefore, when you make decisions for the entire state and you have part of the state, as the case in Flint, where you have populations that are socially and economically vulnerable, and when you have to make a particular tradeoff about who should pay the cost of a decision that will save money or meet other state ends, racially and economically vulnerable populations often will get the bad end of that deal. And that is exactly what happened here.

So I think it is important that the decisions were made at a level higher than the local level. The people of Flint, with a majority African-American community and with an African-American mayor, are essentially in charge of their community and the mayor is accountable and the local legislative body, the Flint City Council, is accountable directly to the residents of Flint, and the fact that they were not the ones to make this call is highly problematic. In many instances, the people that are at a lower level do not have the same access to these decision makers as more powerful and economically influential interests, and who may not even be at the forefront of the decision makers' minds, even notwithstanding what other interests are at play.

But it sounds like with the governor, and even the state agencies, there is a level of indifference there.

Dr. Washington: Let me read an excerpt from an article that I recently read. The article is called “Failure at Every Level.” It says that, “The task force commissioned by Michigan governor Rick Snyder… in their final report found that nearly every agency tasked with protecting people acted with intransigent unpreparedness, delayed inaction. And among the groups signaled out by the report, the governor, the governor's office and the county health department, the city government, and even the federal protection agencies were found to be lacking in their responses.” So let's get back to the point on voting: African Americans have the franchise, but where is it really getting us? How does the Flint case shift the historical paradigm that your vote can help you bring into office representatives who will protect your environmental and public health interests and the interest of your community?

Prof. Foster: Going a little deeper into voting rights law and jurisprudence, it is not just about having the franchise and the right to vote. In a majority-run democracy, one's vote can be diluted as a minority group, and also one's voice can be diluted because it is a winner-take-all system. That is, if you are part of the minority and the majority is not on your side, what happens to your interests? They get completely submerged. And so I do not think having the franchise is the issue. The issue is empowerment. How is it that a minority interest in a majority-take-all society gets its voice heard—gets to elect the representatives of their choice who have their interests in front? When we elect governors, I am not sure that is the point of entrance for that kind of empowerment.

Dr. Washington: And [Gov. Snyder] was the one who appointed the emergency manager.

Prof. Foster: Yes, that goes to the problem of putting the emergency managers at the local level, particularly in communities whose interests may get lost or ignored, or worse yet, will not be attended to in a larger system of democracy, such as the election of a president or a governor, which is, again, a winner-take-all system.

But if you are in the minority in a state where the majority has elected a governor and you are not the group responsible largely for putting the governor in office, then the governor need not have your interests at the forefront of his or her mind when they make decisions like this. So I am suggesting that one of the problems with state-appointed emergency managers who take over cities—and we have seen this in Camden, New Jersey, and also in Detroit, among other places—that are majority African American and that have high rates of unemployment and poverty, the result is that it has a disenfranchising effect on those residents.

Dr. Washington: An environmentally disenfranchising effect in the case of Flint.

Prof. Foster: Not just regarding environment, but on a whole host of issues if you have a state-appointed administrator running your city, instead of a democratically elected mayor to whom all decisions stop at this person's desk and that person is accountable to the local populace. On the [Flint water] decision in particular, it seems to me that if the mayor had been more empowered, and the citizens therefore had been more empowered, something would have been done about this right away, or perhaps the original decision may not have been made in the same way.

Dr. Washington: Another problem that has surfaced in the investigations to date was that, “city officials failed to follow the regulations of the 1991 Lead and Copper rule on multiple levels, including in the water system's lack of corrosion control.”

According to the recent testimony by Mae Wu, Senior Attorney with the Health Programs and National Resources Defense Council, the case of Flint shows us how much the EPA really has to strengthen the 1991 Lead and Copper rule. There were several technical decisions where the city failed to comply with this rule. How is that possible legally? Those in office and agencies are claiming that Flint is “a lesson learned,” but the reality is that it is a lesson learned with long-term devastating health consequences for children and adults. This is not just one noxious incident where a community can recover from bad-smelling water. There have been a number of environmental health issues tied to the high levels of lead in the water for both adults and children.

So how do you legally address these environmental health costs? How do you address the responsibilities of municipal and state officials, again, some who were elected (and some of them appointed by elected officials) making these gross determinations that do not comply with existing environmental laws specifically created for public health safety?

Prof. Foster: Typically those kind of controls are enforced at the state level, and so I am a little surprised to hear that there were such failures at the local city level, as opposed to the state. My understanding was the Michigan Department of Environmental Quality failed to do its job to bring these regulations or these controls to bear on the situation, knowing that the situation was made at the state level to make the switch.

Even if there were failures, which it sounds like there were at the local level, the question to me is where is the locus of enforcement power?

Dr. Washington: Exactly.

Prof. Foster: Even if the locals were not doing their job, this is really a state-level responsibility. Yes, it goes up to the EPA level, but the bottom line is not only has the EPA delegated its authority downward to state-level agencies to enforce these laws, but the states themselves have a separate set of environmental laws and regulations that are often more stringent than the federal laws.

I think there is no getting around the fact that this is a failure at the state level, whose officials are supposed to protect local communities across the board, where environmental justice considerations should come into play, particularly with vulnerable local communities who already are overexposed to pollution. There should be an extra level of protection when any decision like this is even on the table, knowing that exposure to additional hazards or toxins can be more detrimental to these communities, not just because of their economically and socially vulnerable status, but because of their vulnerability to being overexposed to a host of environmental hazards and toxins.

As such, the locus of responsibility—the heart of where we should be focused—is at the state level. And this was a tremendous failure of environmental protection, of equal protection at the state-level agency, and obviously with the governor.

Now, if the Michigan agency that exists to take care of the environment and the people, the public health of the state, is not doing its job, then it allows local officials to not to do their job. But let us be clear. The environmental and safety laws that are not building- or land-use specific, those laws are typically local. But environmental and public health safety laws are state-level responsibilities.

Dr. Washington: The environmental debacle in Flint, Michigan involves both the Safe Water Drinking Act and the 1991 Lead and Copper rule. For the Safe Water Drinking Act, isn't the municipality responsible for ensuring its implementation and having the required controls properly enforced for the public health of residents?

Prof. Foster: Yes, the Safe Drinking Water Act, you mean the federal one?

Dr. Washington: Yes.

Prof. Foster: Yes, and the reason we have state environmental agencies is because Federal officials cannot be in every state, so we have created state agencies and have delegated responsibility for enforcement of federal environmental laws and regulations to those agencies.

And so, in the context of this crisis—yes, the Feds can tighten up their regulations and rules but the people that are tasked to enforce them are the state agencies. And that is why I say there is really no way around that, legally. This is a state-level failure to enforce both federal rules, and then on top of it, the states often have their own more protective rules, with some states even going above the federal floor really that the federal agency sets, such as is often the case in California, to be more protective. And then the states are, of course, responsible for enforcing those laws.

So whatever way you cut it, I am suggesting, this really goes back to the state agency not enforcing the federal laws and its own laws for protection of local communities.

Dr. Washington: What do you think about the human rights violations assessment by the United Nations earlier this year and their recommendations for reparations for African Americans? Do you think that Flint falls into this example of why reparations are necessary for African Americans in the United States during the 21st Century?

Prof. Foster: The short answer is yes. I am not a human rights lawyer in the sense that I am not really familiar with what is happening with the question of reparations at the international level. The question of reparations is not necessarily as pertinent to the international human rights regime, which many view as not having any legal teeth, as it is at the federal or state, or even local level.

Human rights laws come both from common law among the countries, but mostly from international treaties that are signed by nation-states, and the treaties are very hard to enforce in our courts and particularly when you go below the federal court level.

I am not so knowledgeable nor even, I think, hopeful about the power of human rights law, but I would separate the question of reparations from human rights. Certainly human rights can include a right to reparation, whether that is enforceable or not. But the question of how we repair and heal legacies and decades, and arguably centuries, of injustices in this country against the descendants of slaves is still an open one.

Dr. Washington: So do you think that all the decisions that emerged in Flint—the placement of an emergency manager once again in an African-American town, the emergency manager's decision to do a benefit-cost analysis for water treatment with the outcome of a majority/minority town being biologically damaged for at least a generation or two (especially for the children and pregnant women who drank that marginalized water) do you not believe that is part of the reparations scenario for structural racism in the United States?

Prof. Foster: Actually, I do. I do not think it is necessarily linked to a human rights claim legally. Reparations can be a form of compensation and reparative justice that federal legislators or states can undertake outside of a human rights regime. South Africa, quite famously, but other countries as well have done this on their own; but you do need some political will.

Of course, you can force the hand of politicians or the moral/ethical case for it through a human rights lens, and that is probably what is happening at the international level. But ultimately you need politicians to actually create a legal regime of reparations that apply to their states. You will not simply get that from trying to enforce human rights in the United States.

Do we need reparations? Absolutely. Do I believe in them? Absolutely. Would they apply to Flint? Absolutely. But if you are asking me legally whether there is some kind of claim out there that we can bring to bear, a legal claim that will provide reparations in the near future, I think if we could have done it, we would have done it as a country by now. Reparations have to come from a court order or Congress. It has to come from one of these sources. So you have human rights on the international level and you have Congress and our elected officials on the national level. You have state-level officials, the very ones who could not make the correct decision from the beginning. So when people mention reparations, the first thing I ask is: who is going to create a system of reparations, make the resources available, and then dole them out in a way that make sense?

Dr. Washington: But there is $240 million for making these engineering, structural changes in Flint. Is there any legal redress for people who have already been physically and psychologically damaged by this incident?

Prof. Foster: That is why we have a system of environmental laws, to prevent people from being damaged because we used to have a world in which we did not have environmental regulation and laws, and people were exposed. They were harmed. Then we went into court and tried to compensate or repair the damage. But like you said, with this kind of public health damage, once you damage your health you cannot put people back to where they were before the harm happened. That is the problem.

So we have a system of prevention under a version of the precautionary principle that says “when you do not know whether you are going to hurt people by exposing them to this, do not expose them until you find a safe level.”

Not enforcing those laws has tremendous, tremendous consequences as we see in Flint. It is not like getting into a car accident and going to court and saying, “I have been harmed or been discriminated against. Put me back to where I would have been had this not happened. Pay me back pay. Fix my car,” etc. This is harm that cannot be reversed or reimbursed, especially when you are talking about exposure of children.

Again, the reason we have laws that say “do not expose” is because we understand once exposed there is often irreparable harm at the cellular level.

Dr. Washington: The studies by Virginia Tech and even with the EPA were speaking of lead contaminated water at 25 parts per billion (ppb) where there should have been a limit of 15 ppb. In one house, they measured a lead level that was over 2,000 ppb. That is psychologically disturbing to me.

We know about lead. Environmental health scientists, physicians and epidemiologist have known for decades about the damage that lead can do to the human body at levels far lower than 25 or even 15 ppb.

Prof. Foster: Actually, we have laws against exposing people at that level—that is the 15 ppb. We have laws. And that is my whole point, it is not like we are taking risks and we are not sure what the harm is, and we are not sure whether we need laws to protect against it.

Dr. Washington: This is a very different type of legal situation. How do you characterize this? The laws existed. The environmental health science was known. We knew what could happen if these levels were to exceed 15 ppb, and now we have these decisions made in defiance of the Safe Water Drinking Act and the 1991 Lead and Copper rule, as far as I am concerned, with known risks to public health outcomes.

Prof. Foster: It is almost criminal. I do not see how it is that different than an intentional or a reckless violation of a law that says you are not supposed to cause grave bodily harm or death to people.

There are also criminal provisions of environmental laws that mainly punish private actors, not state actors who are enforcing the laws. But private actors who are recalcitrant in their compliance and efforts to comply, even after having been told that they need to.

We have this idea even in environmental law that you know what kind of harm exposure does. You continue to expose people, notwithstanding standards that the agencies are trying to apply to you, and then you keep ignoring that and you keep exposing. But that is for private actors.

But what do we have for state officials who did not just not do their job, but turned the other cheek?

Dr. Washington: Well, that is the accusation.

Prof. Foster: Right. I think at all levels there was this indifference, reckless indifference. It was more than negligence, I think, at this point. But that rises to the level of a kind of culpable state of mind that we would apply criminal laws to. The problem is that the state, and state officials, are typically immune.

Dr. Washington: What do you think should be happening now? We now have ongoing primary election debates for the upcoming presidential election in November and candidates from both parties covering many topics—from immigration, anti-terrorism, future free trade agreements, and Black Lives Matter. As an environmental historian, for me, Flint is one of the most devastating environmental and public health travesties in United States history. With regulations in place for decades to protect human health flagrantly ignored when they should have been enforced with children's health damaged in the thousands. What should the politicians be saying now about Flint? What is the remedy for this?

Prof. Foster: The reason that we have laws to prevent this type of situation, this kind of foreseeable harm, is because of our understanding about the limits of the law. At some point, there is no remedy. I mean, yes, the legal system has remedies available. For example, if someone loses a limb, you cannot bring back their limb. But we can give them money—typically, the value of what they have lost in their life, lost enjoyment. So, sure, there are certain ways that laws can put prices on incalculable losses. But in terms of the main remedial function of the law, which is to put people back to where they were before the harm occurred, to restore them, so-called restorative or reparative justice. No, there is nothing like that in the law that really accomplishes that in most cases.

Usually what we do in the law is say, “This should never happen again, and we are going to change our laws, change our process. We will change so that this never happens again.”

This is the lesson that we learned when we put in place the current system of federal environmental laws in the 1970s. We had all these awful events, rivers catching on fire, etc., which led us to say, “This should not happen. No we cannot change the past, but we are going to put in a law to make sure this does not happen again.” And so when we have a broad failure of that enforcement we have to go back and retool and say, “What do we need to do to make sure this never happens?” We can change the laws. We can change the way we enforce the laws. That is a conversation that I think should be happening at this point. We can make sure we protect particularly vulnerable populations. We can make sure that people do not have to be exposed like this. Though, none of it is satisfactory.

Dr. Washington: I started in industry as an environmental engineer for the power industry (coal, oil, and nuclear plants) in Ohio. We had a team of dedicated corporate environmental engineers, plant environmental engineers, and in-house environmental lawyers who conferred with each other on a weekly basis and sometimes daily. We all knew (engineers, lawyers, and plant operators) what the environmental regulations were. We knew what the limits were for the pollution that we created in our generation of power from fossil fuels; as well as the pollution that was produced from our auxiliary engineering systems. We had to test our waste streams constantly throughout the day to ensure compliance with all of the applicable environmental regulations. The Flint scenario represents a blatant failure to properly monitor, test, and make timely corrective actions. If you did test as often as you are required, failure to take the proper corrective engineering and scientific actions in a sufficient amount of time so that you would not harm thousands of people was, at best, unethical.

So why is there so much silence? I mean it is like a little sound bite for some of the presidential candidates. What should we really be expecting as a public to hear from candidates who want to be elected as our next President in 2016 about preventing another Flint situation?

Prof. Foster: I would like to see a number of things. Number one that state officials in Michigan are held fully accountable for these decisions. Some of the Presidential candidates are calling for the governor and others to lose their jobs. I think that is appropriate.

Whether there are more punitive penalties in that, applying criminal liability, if there were, I would be in favor of those. But I do not think they apply in this instance.

On the federal and state levels, I would like to see politicians call it what it is. I think Hillary Clinton said this, and even Bernie Sanders, at a debate—if this were happening to a whiter, richer place in Michigan, it would not have happened. Call it what it is: environmental injustice, environmental racism, and start to really come to terms with how we deal with that. How we take seriously that there are some populations that get overexposed and we tolerate it.

So now we have all these stories coming out in the media bringing to light that Flint is not the only low-income, African American with high lead levels in the community. This is a good thing. It has brought a grave situation to light. But it also should bring to light that there are winners and losers, even in a legal system that is supposed to protect us all—our environmental law and regulation system.

There are winners and losers, and that is why as legal scholars, as lawyers in this field, we have brought civil rights to bear because environmental law and the way in which environmental laws are enforced do not account for the disproportionate exposure to environmental hazards of poor people and people of color, including the level of lead that they are exposed to. Yes, that law says that you should not be exposed to a certain amount of lead. But it does not account for what we are seeing now, this pattern of communities being overexposed to lead, which we already know is dangerous.

That is why we as lawyers, as scholars, have pushed that intersection very hard—have pushed to meld or to bring into environmental enforcement and regulation and environmental thinking this kind of inequality, this distributional piece.

Dr. Washington: But we do not have any environmental justice regulations on the books at this point. Is that fair to say?

Prof. Foster: No, we do not. Not at this stage. We have agency guidance documents. We have offices for environmental justice inside federal and state agencies. We have policies, and maybe even some local successes. But no law. From a legal perspective, it has been a failure. Despite that we have had an African-American President. Despite that we have had an African-American head of EPA. We have had the conditions to make it happen, but it has not happened. And for many people in the field, that is a tremendous disappointment, because that was a historical window that is now closing; in fact, that is closed. And I do not see that reopening with any of the Presidential candidates running now.

Dr. Washington: The only thing I can say as an environmental historian is that Flint has justified creation of environmental justice legislation. No other incident in recent history has shown such a flagrant disregard and now documented damage to environmental and public health by the non-enforcement of environmental legislation by agencies at all levels.

Prof. Foster: That is right, because it was man-created. That is environmental injustice when through cost-benefit and other modes of analysis you can sacrifice people and communities in service to the greater good. And that is the problem with environmental law.

Dr. Washington: So is there is no clear legal redress on this?

Prof. Foster: Not for environmental law, which is geared towards the greatest pollution reductions for the greatest number of people, not for addressing inequalities like we saw in Flint.