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The Flint February Fall-out

Having laid out a lot of the legal and factual aspects of the Flint crisis, there are still a lot of questions about the remedies. Unfortunately, the current state of affairs does not really appear to be changing very much, but there is a great deal of blame-laying and jockeying for position among leaders and lawyers.

First, in an op-ed in the Washington Post (sub. req.) on Wednesday, Public Health professor and children's health advocate Irwin Redlener (@IrwinRedlenerMD) called for the resettlement of Flint's children in stark terms: "[G]et them out of that toxic, distressed and struggling city." His argument: while the some-assembly-required water filters and bottled water have helped to alleviate the immediacy of the crisis, lead is still leaching into the water and the problem is being stalled, not fixed.

Assuming that the filters are properly installed--which thanks to plumbers donating their time, they hopefully will be--and assuming that the people of Flint can bring themselves to trust that the filters will work--a big leap of faith in a government that (probably) lied to them about the water in the first place--there is one wrinkle: for some, the amount of lead is too much for the filters to handle. Also, the filters need to be properly maintained and replaced. So, as a first step in rebuilding faith in the water system...things aren't looking too good at the moment.

And the underlying problem of lead piping is still not fixed; there isn't even a plan in place to fix the pipes yet. The Governor of Michigan is pushing for a three-stage process starting with an engineering study to determine which pipes need to be replaced, which can be neturalized via chemical coating and which can be left. The Mayor of Flint, on the other hand has called for replacing the pipes immediately, and is seeking funding for her efforts. (N.B. Flint-based Rowe Engineering was tapped by the Governor to complete the engineering study. A July 2011 report by Rowe on the Flint River as a potential water source did not once mention lead, the system's lead piping, or any possibility of lead contamination in its evaluation--though this was generally outside of their ambit for that particular report, as discussed in Section X).

Adding to the cacophony are lawsuits seeking damages for failures at many levels. In addition to the now "$1billion" projected class-action against officials from the local, state and Federal level for lead poisoning, there are additional claims from those who contracted and, in some cases, died of legionnaire's disease. Additional claims against hospitals that failed to identify and treat legionnaire's have started, and seem likely to grow. There are currently nine pending suits, with many defendants including those listed above as well as a separate engineering firm that prepared Flint's Water Treatment Plant for operation. While sovereign immunity might normally insulate government officials from state law tort claims as a matter of law, claimants have framed their claims as violations of due process, allowing them access to Federal Courts and an argument against immunity. Another approach has been to seek an order requiring the state to provide clean drinking water, allowing sovereign immunity to be skirted as money damages are left behind. As these cases develop, we will attempt to add more insight.

Criminal charges in this case have been discussed, though the viability of criminal charges is generally viewed dubiously. However, depending on actions of some state and local officials, there may be crimes of fraud that could be pursued if there were deliberate, false misrepresentations about the state of the water to federal authorities. At the state level, misconduct in office and involuntary manslaughter are among the potential criminal charges. Again, as these cases develop, we will attempt to add more insight to these issues.

Finally, lawmakers are also adding to Flint's ongoing crisis. The House Oversight Committee held hearings on the Flint crisis in early February. While at least a few of the takeaways presented by the committee are reflective more of politics than of fact, the general overview appears accurate. Still the more critical witnesses declined to testify, including the Flint Emergency Manager responsible for the switch, Darnell Earley. As of now, the testimony elicited and the documents provided do not truly add a great deal to understanding the situation.

The crisis in Flint continues to unfold in many ways. The law touches upon many of these areas. From charges and lawsuits to investigations, the law is serving both as a sword for those harmed as well as a barrier to recovery. While technology is being implemented, there is governmental disagreement about what steps to take next. The pipes are not being replaced yet, despite persistent evidence of extreme levels of lead in some homes. The filters may or may not work, even when properly installed and maintained. In many ways, Dr. Redlener's proposition seems the best: resettle Flint residents until their homes are safe to inhabit. Though this is different from other natural disasters that physically destroy homes, like floods and fires, the impact is very much the same. Until this crisis is fully resolved, Flint residents cannot feel safe that the water that they are using to drink, eat and survive is non-toxic. Even with the steps being taken, questions remain as to whether the water can be safe. Unless bottled water is delivered forever, at some point residents will be forced to decide between leaving Flint altogether or staying and hoping that their water is safe again. Instead of forcing them to decide, we should take the initiative and treat them like the victims of floods, storms and earthquakes. Their homes are not habitable, their lives should not be ruled by fear; they should be protected, resettled and given refuge, just like other refugees of natural disasters.

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