The following guest post is by my colleague Professor Peter Hammer, Director of the Damon J. Keith Center for Civil Rights at Wayne Law. In his testimony before the Michigan Civil Rights Commission last week, Professor Hammer offers an explanation of the causes and methods behind the Flint water crisis that goes far deeper than the standard account. (The Flint Water Crisis, KWA and Strategic-Structural Racism is also available on SSRN.) While I have not been involved in his work on Flint, I have seen first-hand the detailed and thorough research that supports his critical analyses and conclusions. I highly recommend his paper (along with the State Task Force Report) to help understand how and why the Flint water crisis happened. (For more coverage of Professor Hammer’s testimony, see Curt Guyette’s ACLU Democracy Watch.)
The Michigan Civil Rights Commission is holding hearings on the Flint Water Crisis from a perspective of civil rights and racial justice. Framing Flint in terms of race fundamentally changes our understanding of what took place and why. It changes how we think about the underlying problem of municipal distress, the tool of Emergency Management, decisions relating to Flint’s participation in the Karegnondi Water Authority (KWA), how the project was funded, the financially driven decision to use the Flint River as a source of drinking water, and the political environment that failed to recognize and respond to the mounting crisis.
I have submitted written testimony to the Commission. The testimony is newsworthy in that it provides some of the most comprehensive analysis to date as to 1) the decision to approve Flint’s participation in the KWA pipeline and 2) the financially driven decision to use the Flint River as an interim source of drinking water.
Important conclusions are:
1) The decision to approve the KWA pipeline was driven by politics, not economics, and was made without consideration of how the financially distressed city would pay for a) the $85 million construction project or b) the estimated $60 million needed to upgrade its Water Treatment Plant (WTP). KWA, the Emergency Managers, the Michigan Department of Environmental Quality (DEQ), and State Treasury were all complicit in this process.
2) In order to finance construction of the KWA pipeline, KWA, the Emergency Managers, DEQ, and State Treasury worked to manipulate bond finance rules and manufacture an Administrative Consent Order (ACO) that committed Flint to use the Flint River as an interim drinking water source and created a loophole permitting the financially distressed city to sell $85 million in new bonds for KWA pipeline construction.
3) State Treasury, DEQ and the Emergency Managers made no similar efforts to ensure Flint’s ability to finance upgrades to the WTP that would be needed to switch from treated water to untreated water from a new source. Estimates of necessary WTP improvements ranged from $25 million to $69 million. In the end, the Emergency Manager spent only $8 million in upgrades before starting to use the Flint River as the full-time source of drinking water. These funds were “self-financed” out of money previously paid to Detroit for clean drinking water (via a Lake Huron pipeline). Flint could not afford both to buy safe water from Detroit and finance the improvements to the WTP needed to switch to KWA.
4) Treasury contrived the end of Flint’s Emergency Management in April 2015 to avoid continued responsibility for the growing public health crisis. If the $12 million necessary to pay for clean Detroit drinking water had been put back on the books, Flint’s debt in April 2015 would have been larger than when the financial emergency was first declared in 2011.
5) The end of Emergency Management did not end Flint’s legal obligation to continue using the Flint River. The Emergency Loan Agreement entered into with the State to finance Flint’s continued $8 million deficit, prohibited Flint from unilaterally returning to Detroit for drinking water or ending its participation in KWA (or reducing water rates) without State approval.
This testimony centers the analysis of the Flint Water Crisis in the context of Strategic-Structural Racism and argues that the Flint tragedy should serve as a morality play about the dangers of structural racism and fiscal austerity, just as the Tuskegee experiments forever shame medical science.