The Michigan Civil Rights Commission has just released a major report, The Flint Water Crisis: Systemic Racism Through the Lens of Flint. Oday Salim, Senior Attorney at the Great Lakes Environmental Law Center, testified before the Commission and authored the following guest post on the Commission’s report.
The Flint Water Crisis: Systemic Racism Through the Lens of Flint is not just another recycled indictment of government officials with all the accompanying horrid details of the Flint water crisis. It is a thoughtful document and a sincere invitation to utilize the Michigan Civil Rights Commission as an additional space for advocacy for victims of environmental injustice.
The Michigan Civil Rights Commission is an executive branch body created by the Michigan Constitution of 1963. The constitution charges the Commission with the duty “to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination.” Mich Const Art V § 29. To carry out its duties, the Commission has the power to “to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and to issue appropriate orders.”
The main theme of the Commission’s Flint report is environmental justice. Environmental justice is the concept that all people and communities deserve equal protection of environmental and public health laws, and an equal and meaningful voice in decisions related to their natural environment. Because environmental justice is about the relationship between prejudice and environmental protection, it is intimately associated with civil rights legal frameworks.
The Commission’s Flint report is not the first to point out that there is a deep and old problem of environmental injustice in Michigan, which the state is ill-equipped and often unwilling to address. Both the Flint Advisory Task Force established by Governor Snyder and the Joint Select Committee on the Flint Water Public Health Emergency established by the Michigan legislature concluded that the Flint water crisis is an example of environmental injustice where pollution of the environment disproportionately impacted minority communities and where systemic prejudice facilitated in the first instance the pollution and the disproportionate impacts.
Additionally, in January 2017, the United States Environmental Protection Agency’s External Civil Rights Compliance Office summarized in a letter its nearly 25-year investigation into the role of race and prejudice in decisions to site a biomass power station, concluding that race and prejudice played a role and making several recommendations for Michigan’s Department of Environmental Quality to make significant changes.
For many reasons, the Commission’s Flint report has the potential to be more effective than others because of its comprehensive approach, its bold recommendations, and its sincere attempt to adhere to long-standing environmental justice principles. First, the Commission avoids euphemism and calls what happened by its rightful name, which is that the people of Flint – disproportionately minorities – were poisoned. Second, the Commission begins by being self-critical, noting that for years it could have and should have done more about environmental justice specifically, and about civil rights issues more generally. Its very first recommendation is directed at itself, calling for better methods to identify issues and a willingness to locate scheduled meetings closer to affected communities. Third, in line with environmental justice principles, the Commission provides a space for the faces and voices of the affected community. The report has several quotes from, and photos of, residents who have themselves suffered injustice. The quotes are not merely window-dressing; they are placed in the Report in a manner that displays respect for the community member’s experience. Fourth, the Commission devotes at least half of its report to describing in detail the spatial, racial, and economic histories of Flint. In doing so, the Commission places environmental injustice in a broader historical context, and commits to a holistic approach to eradicating environmental injustice that seeks to understand root causes before jumping to solutions.
The Commission’s Flint report also has clear and helpful recommendations. Each of them relates to the three fundamental kinds of environmental justice: procedural, which is synonymous with meaningful involvement in decision-making; distributive, which is synonymous with fair treatment of environmental justice communities; and corrective, which allows victims of environmental injustice the chance to seek redress.
On procedural justice, among other things, the Commission recommends changes to the emergency manager law that allow for local representation and opportunities to challenge adverse decisions. The Commission also urges Michigan to actually and finally implement an environmental justice plan, be it the formal Environmental Justice Plan from 2010 or, preferably, the far better 2009 draft version.
On distributive justice, the Commission makes a wide range of recommendations. Some seem quite doable, such as conducting a fairer cost-benefit analysis that leads to more appropriate siting of environmental hazards like industrial facilities. Others, such as incorporating cumulative impacts into permitting and siting decisions, are developed in the technical literature but not often implemented as policy. Still others, like the recommendation for more regionalism so that urban cores and sprawling suburban areas can coordinate better on infrastructure, are bold but also slightly vague.
On corrective justice, the report is not quite as strong. It mentions a possible truth and reconciliation commission, which is incredibly creative and almost certainly a good idea, but vastly more out of reach than other recommendations given the current social and political climate.
The Commission also cites to a United States Supreme Court case, Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. as a possible avenue for corrective justice. Inclusive Communities was a Fair Housing Act discrimination case in which the Supreme Court held that to prove their claims plaintiffs would be held to the lower disparate impact standard, and not the higher disparate treatment standard. Early on, many environmental justice advocates looked to federal civil rights law for corrective justice, but various avenues proved ineffective. For equal protection claims brought through 42 U.S.C. § 1983, most plaintiffs found difficulty meeting the disparate treatment standards. Initially there was hope in section 601 of the Civil Rights Act, but ultimately the Supreme Court held that section 601, while it only required a showing of disparate impact, did not create a private cause of action and so only governments could enforce it. Inclusive Communities became the topic of discussion in environmental justice communities because there was now a civil rights claim that citizens could directly use and that required the lower evidentiary threshold to prove discrimination. However, there are still many unanswered questions about how the Federal Housing Act can be used to address environmental injustice. Surely there will be circumstances where it will apply, but the Commission does not delve into the details and appears to place too much hope in the case.
The truth is that there is no adequate corrective justice platform to provide redress for victims of environmental injustice. The civil rights laws at the federal and state level often make for an odd fit. Environmental injustice, as the Flint report describes, is complex and is a byproduct of decades of social and economic deprivations. Environmental justice communities deserve new laws or major amendments to current ones that better address the intersection of the natural environment with civil rights. The Commission might have gone further and recommended the convening of a panel of experts to recommend changes to Michigan’s Elliot-Larsen Civil Rights Act to make it more readily useful to environmental justice communities.
The relatively inadequate treatment of corrective justice aside, the Michigan Civil Rights Commission’s Flint work is unique among the many other reports. Perhaps most importantly, the Commission, a constitutionally created body with varied authority, has begun to flex its muscle in the environmental justice context. The Commission, by its own admission, is capable of doing much more in this arena. While the environmental justice communities themselves must be the final judge of this, the Flint report appears to open the Commission doors to those communities like never before. Lawyers should take note.