A Long Way from Justice: Reflections from Flint on the $600 Million Settlement Proposal

On August 19, 2020, breaking news once again thrust Flint, Michigan—our city—into the national spotlight. Over 6 years after poorly treated water from the Flint River was first dispensed to residents as their primary water source, leading to broken pipes, broken bodies, and broken trust, we learned that the State of Michigan had agreed to pay residents $600 million in compensation to settle the many civil lawsuits resulting from the crisis. Moreover, we were told residents were likely to see that figure grow as other defendants in the civil suits took the opportunity to settle as well, including the City of Flint, the Environmental Protection Agency, and the private contractors who advised the city on its water system. Although no one claimed the money would repair all the harm done to residents, both the lawyers who negotiated the settlement and Michigan Attorney General Dana Nessel framed it as a significant step toward justice.

We contend that part of the work of justice is empowering community members to determine for themselves what justice means and when justice has been done. From the beginning of the water crisis, we have repeatedly experienced the phenomenon of people from outside our community—external “experts”—defining what justice entails for Flint residents. These definitions are usually based on assumptions about the type and the severity of harm done to us. But outside assessments of harm have repeatedly failed to capture the scope of our crisis, incorporate community knowledge and concerns, and imagine what it will take for the community to thrive as opposed to merely surviving. The settlement proposal is no exception. Whatever its merits, it reflects a paternalistic pattern of thinking and decision-making evident in the crisis itself, in the official response to the crisis, and in underlying causes of the crisis such as white supremacy, systemic racism, and the orchestrated denial of local democracy.

Class-action lawsuits have notorious limitations as instruments of justice. When high-profile harms occur, communities become vulnerable to opportunism and exploitation on the part of people claiming to help, including people within the legal profession. In Flint, so many lawyers descended upon the city after the water crisis became national news—signing up >33,000 plaintiffs for >100 suits ¹ —that many residents were left bewildered and unsure of where they personally fit into the legal landscape, even after the suits were consolidated ² by a judge in 2017. Some have signed up with multiple legal teams, leading to ongoing controversy over who represents whom, and some signed up so long ago, they themselves may have lost track. Furthermore, because most of the work done on class-action lawsuits is handled by legal experts outside of public view, they put residents in the awkward position of waiting on the sidelines while virtual strangers (only one lawyer involved in the consolidated suit lives in Flint) negotiate on their behalf and decide what a fair agreement looks like. Finally, class-action lawsuits often create expectations beyond what they can satisfy, resulting in disappointment, anger, and even despair on the part of those who feel disrespected by their outcomes. In the process, they can also become sources of community division as plaintiffs compete over monetary awards, undermining the potential for collective action in the future.

In light of these disempowering aspects of class-action litigation, we believe it is important to place emphasis on the role of residents' own agency in the pursuit of justice. This begins with recognizing that the so-called settlement is in fact a settlement proposal. Residents must decide whether to opt in, which means they have at least some opportunity to decide for themselves if the settlement offer is just, or, more pragmatically, all they can expect. Considerable uncertainty clouds that thought process. Not only is it unclear how large the final pot of money will be—especially as some defendants in the suit pledge to keep fighting ³ —the allocation of the funds will depend on how many residents choose to participate and how much the judge awards in attorneys' fees (up to one-third of the total, representing a potential mass exodus of money from the settlement to lawyers from other communities). Residents are also awaiting the full details of the proposal itself. Nevertheless, some of the proposal's strengths and limitations are already apparent.

On the positive side, the settlement proposes to treat all minors who were exposed to Flint water as eligible for damages automatically. This is a vindication of local activists' insistence upon describing residents as “poisoned” (rather than merely “exposed”): any consumption of lead-tainted water results in some amount of harm, and children, especially, are entitled to be compensated for that harm. By contrast, however, the settlement puts adults exposed to the water in the position of having to prove harm through a claims process. Imagine how this burden feels to residents who tried unsuccessfully for the 18 months Flint was on the river to convince their doctor the water was harming them—and to get it put in writing—despite official proclamations of the water's safety. Or how it feels to a resident who could not get to a doctor when it mattered for lack of health insurance. Or to residents who simply got the wrong diagnosis: those who contracted Legionnaires' disease from their water, for example, but were told they had “pneumonia.” And what of the harms and expenses residents have incurred that are difficult or impossible to capture in doctors' notes or receipts, such as lingering fear of the tap, or the cost of gas burned while waiting in line for bottled water, or the overall decline in quality of life? Furthermore, it is unclear whether the settlement will enable undocumented community members to access the compensation they, too, deserve. All of the uncertainty around the settlement, combined with the reporting burden of the claims process, adds additional layers to the ongoing trauma of mind, body, and spirit that Flint residents are left to carry, often while struggling to meet basic life needs.

We and other residents and activists have long argued that some forms of compensation should be automatic for affected adults no less than affected children: permanent health care coverage; the replacement of damaged internal plumbing, fixtures, and appliances; and the state provision of bottled water and filters, at least until damaged infrastructure is replaced. Although the proposed settlement may allow residents to address some of these needs, even by the most optimistic estimates, most who opt in are unlikely to see a payout that changes their circumstances substantially. Some will undoubtedly choose to opt out and continue their legal fight in the hopes of being awarded damages that better approximate their sense of harm.

And the state has given every indication that it will be a fight. After a hard-won lawsuit settlement in 2017 was necessary to spur the state to commit to minimum essential recovery efforts such as lead service line replacement, residents' lawyers have had to battle through no fewer than 15 state appeals to reach the current settlement agreement focused on resident compensation. This is why we bristle when we hear the settlement described as an “apology,” ⁴ as if it is a benevolent and voluntary act. Not only does this framing erase the contributions of residents and their allies, who have had to fight for everything that has come to our city, it erases the ways in which government agencies have continued to pursue their own interests even under the guise of bringing justice and recovery to residents. Many of us had direct and sustained interaction with representatives of these agencies when they were on the ground in our community. Although we witnessed good work being done by a number of people who genuinely wanted to help, we also repeatedly witnessed attempts to deliberately avoid accountability and limit responsibility, to manipulate residents strategically, to obstruct or undermine scientific research of great interest to residents, to act in the interest of money instead of public health, and to marginalize residents with critical perspectives. When we express skepticism of the goodwill of government agencies, it is not because we are traumatized, or unreasonable, or ungrateful, or uninformed, but because of what we have seen with our own eyes and experienced with our own bodies.

However individual residents decide to respond to this settlement proposal, we must keep coming back to the question of what justice looks like to those who have been treated unjustly. Even with the best possible settlement, we will still be expecting state and other actors to be held criminally liable. We will still be expecting investment in long-term community-driven solutions to our infrastructural and other issues that empower and employ residents. We will still be expecting adequate health care and wraparound services. We will still be expecting the repeal of the emergency manager law that stripped us of democracy and put our water under the control of unelected autocrats. And we will be insisting, as always, that people ask us and our fellow residents before concluding that Flint has been made whole.