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Learning from the Flint Water Crisis: Public Health Challenges and Legal Interventions

posted on Mon, Feb 1 2016 2:37 pm by Jennifer Bernstein

The Flint water crisis is currently at the forefront of American media coverage, and on the minds of many in public health. In 2014, while under the control of an emergency manager appointed by the State of Michigan to oversee city operations and control finances, Flint changed its source of water from the Detroit Water and Sewage Department, which draws its water from Lake Huron, to the Flint River in a cost-cutting measure aimed at saving $5 million over two years. Subsequently, elevated lead levels were detected in Flint's children, resulting in state and local emergency declarations. The effects of elevated lead will negatively impact the health of the community, especially its children, for years. Many people are wondering if a similar incident could happen in their own communities.

It’s important that we begin to learn from what has occurred. As public health practitioners, leaders and policymakers, we need to make certain that public health concerns are heard whenever there is a potential for health to be affected by law and policy changes or implementation.

There are several points of apparent failure that may have led to the Flint water crisis that can be addressed through legal interventions. First, national infrastructure, the basic equipment and facilities that we need to serve a community, including roads, schools, electricity, water, and many other services, are aging and causing harm to the public’s health. Other incidents, such as the I-35W bridge collapse in Minnesota, have shown the dangers of aging infrastructure. These issues often remain unseen when public health is most effective, but come to the forefront during a crisis. Consistency in supporting public health initiatives is necessary. We can’t wait until a crisis has occurred because it is often too late. One legal intervention to address this problem is to exercise taxing and spending powers to repair or replace aging infrastructure and support public health through full and adequate funding.

Second, there was a failure in decision making that contributed to the Flint water crisis. The motive behind the change of water source for the Flint community was precipitated by a longstanding fiscal crisis in the city. No matter the reasoning behind such decisions, leaders must always keep the public’s health paramount. We must use an evidence-based method to measure the potential effects of any law or program on the health of the population, with special attention to how those effects are distributed within the population. Instituting new legal requirements to conduct health impact assessments would serve as a check and balance system against competing financial or political interests that may not place the public’s health as a top priority.

Finally, the legal landscape itself may have contributed to the failures in Flint. Existing laws are a patchwork, giving powers and responsibilities for implementation and oversight to several agencies and individuals at the federal, state and local levels. Michigan’s Local Financial Stability and Choice Act authorizes the state to intervene in units of local government that experience financial emergencies and consolidates local power in an emergency manager appointed by the Governor. Emergency management laws nationwide should be reviewed to determine whether they include appropriate safeguards to protect the public’s health while these powers are exercised. It is equally important for public health officials and leaders in communities under the control of an emergency manager to understand how the law impacts their agency and the legal responsibilities of the agency to protect public health.

The Network for Public Health Law is ready to assist in the effort to address legal questions on the Flint water crisis. The Network can contribute by providing technical legal assistance and conducting legal research and analysis that answer legal questions and provide insight into how law can be used or improved to better protect the health of our communities. As a part of this effort, we will be running a series of blog posts on the Flint water crisis over the next several months, as well as hosting a session to deeply examine the legal issues surrounding the Flint water crisis at the 2016 Public Health Law Conference in Washington, D.C. taking place September 15-17.

This blog post was developed by Jennifer Bernstein, Senior Attorney, at the Network for Public Health Law – Mid-States region at the University of Michigan School of Public Health.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. 

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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