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Will Flint Water Trial Spark More Court Battles for Environmental Justice?

The stakes for environmental racism need to be even higher than jail time. What if any company responsible for major ecological devastation was dissolved? Or politicians colluding with or enabling environmental destruction could not hold office?

For the first time in Michigan’s 184-year history, an official having served as the state’s chief executive is facing criminal charges related to their time in office — for willful neglect in a drinking water catastrophe that’s been likened to genocide and described as a textbook example of environmental racism.

On January 14, Solicitor General Fadwa Hammoud announced a flurry of criminal charges against former Gov. Rick Snyder, seven other former state officials and one current official — 42 counts in total — for alleged involvement in the water crisis, during which astronomically high levels of lead in the city’s water started making people sick after officials switched the city’s water source from Detroit water to Flint River water and opted out of paying to prevent corrosion in an attempt to steer the city out of bankruptcy. Snyder faces two counts of willful neglect, a misdemeanor carrying a maximum sentence of a year and a $1,000 fine. Charges against other officials include perjury, obstruction of justice, extortion and involuntary manslaughter. An Environmental Protection Agency (EPA) memo from 2015 alerting state officials to high lead levels, as well as call records obtained by The Intercept, among troves of other evidence, suggest state officials knew about the threats lead and Legionnaires’ posed to residents, but failed to inform the public.

The Flint water crisis, which began in 2014, has been linked to 12 deaths and at least 90 people who got sick with Legionnaires’ disease — a severe form of pneumonia typically stemming from an infection — according to state data. An investigation by PBS’s “Frontline” suggests dozens of additional deaths linked to the crisis went uncounted. It’s also taken a long-term toll on Flint’s children and families. Between the 2012-2013 and 2018-2019 school years, the district saw a 56 percent rise in special education students, according to Education Week.

Snyder’s lawyer has called the charges “ridiculous” and “politically motivated,” and is working to get them dismissed. Some organizers question whether the criminal charges against individuals will result in any systemic change to prevent similar atrocities from happening in the future. Other environmental justice organizers and attorneys around the U.S. argue that the charges are a relief and a potential catalyst for more accountability for polluters and corrupt officials, especially given the Biden administration’s latest wave of executive orders addressing the climate crisis, which instill a commitment to environmental justice across federal agencies.

Environmental law professor at Michigan’s Wayne State University, Noah Hall, calls criminal law the “ugliest last resort of the legal system,” but told Truthout that when government officials break the law, victims of injustice deserve to see the law come down in a way that affirms the wrong that was committed to them, which rarely happens in cases of “white-collar” crime. Hall served as special assistant attorney general for the state’s investigation into the Flint crisis for three years.

“The story line of Flint shows these systematic problems, but they were also individual people who made decisions and took actions that resulted in people losing their lives. It’s not just a failure of government or a system,” Hall said.

Anthony Karefa Rogers-Wright, director of environmental justice for New York Lawyers for the Public Interest, told Truthout that in addition to illness and death, Flint families are facing factors like increased medical and mental health care costs that are more difficult to quantify. “What would they have become if they weren’t inflicted by not just a level of incompetence or willful ignorance, but dehumanization?” Rogers-Wright asked. “If you’re going to put something in a population to keep them down for a generation, it would be lead,” he said, referring to how lead poisoning has been shown to cause behavioral problems and difficulties learning to listen, speak, read, write and reason. Rogers-Wright also noted that none of the charges against the nine Michigan officials include civil rights violations.

Lynnette Williams, an ophthalmologist in Memphis, Tennessee, and community health advocate, is surprised it took this long for prosecutors to announce the charges. Williams likened the failure to respond to the water crisis in Flint to former President Trump’s complete lack of response to the COVID-19 pandemic, which has now caused over 446,600 deaths in the U.S. “It’s just negligence,” she told Truthout.

Williams said she hopes the charges might call attention to the thousands of cities and towns across the U.S., like Memphis, where lead levels are even higher than Flint’s. Williams has struggled to obtain data on lead levels in Memphis, where in spite of priding itself on its municipal water source — an underground aquifer the size of Lake Michigan — city schools have shown lead levels in water flowing through fountains, sinks and coolers, up to seven times higher than the state’s official healthy limit of 20 parts per billion, according to the Commercial Appeal, which also characterized the lead crisis in Memphis as the “top hazard” facing children in the area. According to the Centers for Disease Control and Prevention (CDC), no level of lead in the blood is safe for children.

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In 2019, Williams approached the Shelby County Health Department, where she often went to seek information for health fairs, for more information about lead levels in Memphis. After an employee provided her with a map with census data suggesting children in the majority-Black parts of the city showed lead levels five times higher than those in ZIP codes in suburban (and whiter) East Memphis, she pressed for more information, including an answer to why the city had stopped publishing an annual epidemiology report, which used to contain a section on lead levels, in 2016. According to the county health department website, a report on Childhood Blood Level Poisoning is “coming soon.”

At one visit, Williams was escorted out of the county health department building by security guards. She says she has since been denied access to county health department records, and for employment and volunteer opportunities with the health department. “I get labeled for just trying to get information,” Williams said. A spokesperson for the Shelby County Health Department confirmed that the county’s annual epidemiology reports have been delayed and the school blood lead testing report is in progress, but declined to provide an explanation, projected publication dates, or comment on Williams’s alleged treatment by the department.

The struggle to obtain local and state health data from agencies charged with regulating pollution also strikes a chord with Maria Payan, a regional health organizer with the Socially Responsible Agriculture Project. Payan was forced to move from a home in Pennsylvania when a factory farm popped up next door and began polluting the water with nitrates, an odorless pollutant that causes blue baby syndrome and a slew of cancers. “I am a fanatic on this stuff because I know what can happen,” she said.

Payan says the potential for a criminal trial in the Flint case is cathartic for organizers like her who have experienced the agony of ongoing health issues to which it’s taken years to bring research and public attention. In trying to track down data about polluting facilities, Payan has repeatedly experienced gatekeeping and gaslighting. She’s spent countless hours requesting public records, only to find empty offices or be tacked with hundreds of dollars in fees to access the public records. “It seems like [they’ve forgotten] the people that they are supposed to actually represent,” she said.

Julia Bernal is an alliance director with the Pueblo Action Alliance, and a member of the Sandia Pueblo/Yuchi-Creek Nation. She says in her work protecting the Greater Chaco region in New Mexico from fracking, organizers targeted wrongdoings by federal agencies like the Bureau of Land Management and the Bureau of Indian Affairs. But seeing the faces of powerful people like former Governor Snyder being charged personally in Flint, she says, is significant.

People who decide to enter public service, Bernal says, could stand to remember that it’s intended to be just that: public service. “And if your constituents for years have been protesting and have been demanding action be done about this crisis, then you’re obviously being complacent [about] the issue.”

And yet, even if former Governor Snyder spent the rest of his life in prison for this, it wouldn’t solve the underlying issues that allowed the Flint water crisis to happen in the first place, Casey Rocheteau, communications coordinator for the Detroit Justice Center, told Truthout. The conditions that led public officials to believe cost-cutting measures were more important than protecting the health of Flint residents still exist, as does decrepit infrastructure in marginalized communities all over the country.

The sensation of vindication in watching negligent officials be subjected to the existing criminal justice system like average people is understandable, Rocheteau said, particularly because it is so rare. But we must be careful not to let that sensation function to justify the system of racial capitalism that produced the Flint crisis in the first place. “One of the greatest tricks our criminal punishment system plays on us is making us believe that it is effective because occasionally powerful people are incarcerated for their actions,” Rocheteau added.

Perhaps a return in national attention to the Flint water crisis could serve as a call to think further outside the box about the fundamental nature of justice. “The stakes for environmental racism need to be even higher than jail time,” Rocheteau said. “What if it was the standard that any company responsible for major ecological devastation was dissolved? Or that any politician colluding with or enabling environmental destruction was no longer allowed to hold office?” Other activists and attorneys have pointed to the importance of restorative justice principles allowing impacted residents to have a voice in determining how the harm done to them might best be repaired.

More accountability through litigation that requires corporations to pay for the damage they’ve done could bring momentum to struggles led by communities facing pollution and climate-related threats, like Flint. Several state attorneys general, including now-Vice President Kamala Harris, have brought similar suits against Big Oil companies. Lauren DeRusha, water campaign director for the nonprofit Corporate Accountability, explained that corporations have for decades bankrolled politicians, interfered with policy and misled the public about the truth of their role in fueling climate change and other disasters. So litigating against them would be a logical element of a just transition.

These potential payments, known as “climate reparations,” could begin to address the legacy of colonialism that’s resulted in disproportionately subjecting low-income and communities of color to pollution, long-time environmental advocate and former North America director of the international climate action group, Tamara Toles O’Laughlin, said recently on the podcast Hot Take. O’Laughlin explained that a system of climate reparations could also go far in funding the expensive job of remediating the toxic sites and pipes that a Green New Deal would tackle, not to mention the complete overhaul of infrastructure needed to provide 100 percent clean energy at a pace fast enough for a chance at dodging the most catastrophic impacts of the climate crisis.

“We are not in a unique moment, we’re just in a place where there’s time for real alignment,” O’Laughlin said.

In Flint, a federal judge has granted a preliminary approval for a $641 million settlement fund, 80 percent of which would go to children and young adults who were under 18 during the water crisis. It would be the largest class-action settlement in the state’s history, the Detroit Free Press reports, combining payments from the state, McLaren hospitals and Rowe Professional Services Co., which did engineering work during the municipal water switch. Impacted residents can apply for a share of the funds until March 29.

The remainder of Michigan officials facing charges have a pre-trial hearing in February. As they watch the potential trial unfold, organizers say they’ll simultaneously be looking to see how Biden delivers on his most recent wave of environmental justice commitments, like creating a community notification program to allow easy access to real-time data on environmental pollution and establishing an Office of Environmental Justice within the U.S. Department of Justice. Those programs, as well as a commitment to holding polluters accountable, are outlined only in broad strokes in Biden’s latest executive orders, but provide a fresh canvas for introducing a process that could begin to repair a legacy of violations of the right to clean air and water.

“It’s important for groups to remain in solidarity with each other and amplify these fights,” Bernal said. “What happened in Flint will be a landmark case for other actions that could happen elsewhere.”