The Flint Settlement: The Exception That Proved The Rule

By Wendy E. Parmet: For the Entire Post, Go Here…

In 2014, six years before SARS-CoV-2 ravaged the globe, the citizens of Flint, Michigan, experienced their own, more localized, but nevertheless horrific, public health crisis, when the city’s water supply was contaminated by lead and harmful bacteria. Like today’s pandemic, the Flint water crisis was borne from the government’s failure to protect the public and its willingness to disregard the interests of low-income communities of color. However, unlike the victims of COVID-19, the residents of Flint may finally receive some compensation as a result of a tentative $600 million settlement agreement announced on August 20 by Michigan’s governor and attorney general.

The Flint Crisis
As with many public health crises, the Flint debacle had many roots. In the 50 years leading up to the crisis, Flint’s population halved as jobs vanished. A majority of the residents who remained were Black, and more than 41 percent had incomes below the federal poverty level. Genesee Country, where Flint is located, ranked 81 out of 82 Michigan counties in health outcomes.

After the 2008 financial crisis, the city experienced significant economic distress. In 2011, then Governor Rick Synder appointed an emergency manager to oversee Flint’s affairs and cut costs, effectively robbing the citizens of their right to self-govern. This led to the disastrous decision in 2014 to cut water costs by changing Flint’s water supply from the Detroit Water and Sewage District to the Flint River. Making matters much worse, city officials did not treat the corrosive river water to prevent lead from leaching from the pipes..

Almost immediately after the river water began flowing into homes, residents began to complain about the water’s odor and color. When high levels of bacteria were detected, residents were warned to boil their water and chlorine was added. Still, federal, state, and local officials downplayed the dangers and ignored the residents’ concerns. Only after Virginia Tech researchers published a study showing high levels of lead in the water and Mona Hanna-Attisha, MD, a local pediatrician reported high lead blood levels in the blood of the city’s children did the media notice the crisis.

Public outrage quickly followed. The city then switched its water back to the Detroit supply, and the mayor, governor, and president declared states of emergency and promised to help the residents of Flint. Over the next several years, the federal government and the state undertook numerous, expensive steps to reduce the lead in Flint’s water. Nevertheless, significant damage had been done. There were at least 90 cases of Legionnaire’s disease associated with the water crisis and 12 deaths. The city also saw a significant increase in children presenting with blood lead levels ≥ 5 μg/dL.

Not surprisingly, the crisis spawned a wave of litigation. More than a dozen cases, including several class actions, were filed in federal and state courts against federal, state, and local agencies as well as private contractors. The cases raised a plethora of constitutional, statutory, and common law claims, including negligence, fraud, public nuisance, due process, equal protection, and violations of the Safe Drinking Water Act.

The Settlement
The proposed settlement, which followed 18 months of negotiations overseen by Federal District Judge Judith E. Levey, requires the state to pay $600 million into a qualified fund that will compensate the residents and property owners of Flint, after attorneys’ fees and costs are deducted. Of the remaining money, 79.5 percent will go to residents who were younger than 18 at the time of the exposure; more than half will go to the youngest children. Importantly, those who were minors will not have to prove personal injury to receive some compensation, although those who can prove injury will receive greater (but still unspecified) amounts. Special education in Flint and surrounding communities will receive $9 million. The remaining funds will go to compensate residents and property owners who can show that they suffered other losses, including property damage and death or illness from Legionnaire’s disease.

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