Michigan’s Emergency Manager Law Under Scrutiny Following Flint’s Water Disaster

Flint water crisis

Flint, Michigan is thankful to have finally been reconnected to Detroit’s water infrastructure, after experiencing a huge scare after an ill-advised connection to the Flint River.

Almost a month ago, the city that once boasted a booming automotive industry (just like its big brother Detroit) was brought to its knees with a water crisis: in late September, the story broke that levels of lead in Flint’s water supply were so bad that it was dangerous to consume. This complicated situation ultimately started back in 2011 when Michigan Governor Rick Snyder introduced emergency management (EM) law in an effort to get the finances of the state under control. As we can see today in 2015, it turned out very poorly.

The birth of emergency manager laws in Michigan

It all started in 2011, with Public Act 4 (PA 4), which gave great strength to Michigan’s highly controversial EM law. This law effectively gave the state the power to install a manager in a city, who essentially erases the sovereignty of local governments through their ability to override any municipality’s city council or mayor.

The citizens of Michigan, largely organized by the state’s labor unions, responded by voting a 52 to 48 margin in a ballot referendum that killed PA 4. Despite the clear and obvious opposition of his constituents, Snyder singed an entirely new EM bill into law.

Even more problematic was the manner in which the EM law was deployed, which seemed to unreasonably target black communities in Michigan. As Truth Out notes, 2010 census data show that only 14.2 percent of Michigan’s population is black, yet 80 percent of black Michiganders have lived under EM during Snyder’s tenure as governor.

The boiling frustrations erupted with the current crisis with Flint’s water.

Lead found in Flint’s water

The potential downsides to EM reared its ugly head in 2014, when Flint’s EM Darnell Earley singlehandedly made the decision to switch Flint’s water primary water source from treated Lake Huron water (purchased from the Detroit Water and Sewage Department) to water from the notoriously dirty Flint River. As Flintonians knew, the Flint River has long been used as a dumping ground for “car parts, grocery carts, refrigerators” and almost anything else in the automotive corridor that needs disposing of.

What’s more, the lack of oversight that EM laws brought with them resulted in a botching of water treatment protocols by the Michigan Department of Environmental Quality. “Simply stated, staff employed a federal protocol they believed was appropriate, and it was not,” the department’s director Dan Wyant said in a statement. “The water testing steps followed would have been correct for a city of less than 50,000 people, but not for a city of nearly 100,000.”

A questionable water supply mixed with botched safety protocols resulted in Flint’s water crisis. A Virginia Tech study of Flint’s water found that Flint River water was 19 times more corrosive than the water Detroit was supplying Flint.

Even though the damage of almost 18 months of exposure to this water has already been done, there is a somewhat happy ending for the citizens of Flint. On Friday October 16th, Flint reconnected to Detroit water with the help of the state of Michigan, the city of Flint, and the prominent C.S. Mott Foundation, which collectively donated $12 million to make the switch happen.

The aftermath, lawsuits, and responsibility

The gross failure of this entire situation is made even worse when you consider the improbability of the state’s citizen’s ability to pick a legal battle with the state of Michigan.

Experts have noted that any such case would not be easy because government agencies are typically immune from lawsuits related to the performance of required government functions. In cases of gross negligence (defined as demonstrating a substantial lack of concern for whether or not injuries result from said actions), employees can be held liable.

There are also exceptions to that immunity, such as when a government entity performs a proprietary function (meaning they turn a profit), though this idea is contradicted by Michigan laws that preclude municipalities from profiting from selling water and sewer service. Experts are mixed because everything is open to interpretation—an incredibly unsatisfying situation for Flintonians that are demanding justice.

What’s more, the entire goal of changing Flint’s water source has completely failed. The rationale in 2014 was to save an estimated $5 million over two years by making the shift. However, given the public health disaster that has unfolded, early estimates have the state ponying up and paying at least $10.6 million when everything is said and done.

EM laws are understandably under a great deal of scrutiny, as a result. The fact that EM laws allowed this situation to occur and fail will likely have a great impact on future laws and election in the state of Michigan and the city of Flint.