JURIST Guest Columnist Robert Percival from University of Maryland Francis King Carey School of Law discusses what can be learned from the tragedy in Flint, Michigan…

Americans who visit China quickly notice one significant difference from travel in the US. Even if they are staying in luxury five-star hotels, they are told not to drink tap water because in China it is not safe to drink. By contrast, no matter where one travels in the US tap water should be safe to drink because of a federal law called the Safe Drinking Water Act [PDF] (SDWA), 42 U.S.C. §300f et seq. Since its enactment in 1974, the SDWA has required tap water in the US to meet minimum federal standards to protect public health.

Thus it was shocking to learn that for more than a year impoverished residents of Flint, Michigan were drinking lead-laden tap water that poisoned their children. How could this happen in the 21st century in the most developed country in the world despite the SDWA and the now well-known dangers of exposure to lead? It seems astonishing that government officials violated the SDWA and failed promptly to inform Flint residents that their water was poisoned.

The Flint tragedy originated with the appointment by Michigan Governor Rick Snyder of Darnell Earley as emergency manager for Flint. To save money Earley decided in April 2014 to shift the source of the city’s water supply to the polluted Flint River. Because Flint River water is highly corrosive, lead from pipes in Flint’s water supply system leached into the drinking water, poisoning Flint residents. Shockingly, after test data revealed the lead contamination, state and federal officials failed to inform Flint residents. Officials initially denounced private groups who tried to publicize test results. Yet when General Motors complained that the water was corroding parts at a plant in Flint, government officials quietly reconnected the plant to its former water supply.

Behind these shocking events are dark realities that require reassessment of our current system for protecting public health. First, history demonstrates that it is easier to muster political will to control health risks that are highly visible. Long before the US had national environmental laws, Congress in 1912 imposed a prohibitive excise tax on the use of white phosphorous in match manufacturing because it inflicted a horribly disfiguring disease on workers exposed to it. Because lead exposure causes neurological damage that is less apparent to the naked eye, it took much longer for environmental policy to respond to it. While much of the rest of the world banned lead-based paint at the beginning of the 20th century, the US did not do so until 1978, more than a half-century later. Lead additives in gasoline were banned only in the 1990s after a prolonged struggle that extended for decades more than the effort to ban lead-based paint.

A second lesson from Flint is the folly of changing policy simply to save costs without considering the impact on public health. Incredibly in 1982 [PDF] the Reagan administration proposed to allow more lead to be added to gasoline simply to reduce costs to oil refiners. Even as it was touting a new executive order requiring agencies to balance costs against benefits before taking regulatory action, the administration said only cost reductions need to be considered when proposing to relax existing rules. It was self evident to Reagan’s minions that any measure saving industry money was desirable regardless of its effect on public health. Fortunately public outcry forced Reagan’s Environmental Protection Agency (EPA) not only to abandon this disastrous proposal but eventually to eliminate gasoline lead additives entirely. Leaded gasoline now has been banned in virtually all the world. This is probably the most successful public health measure in the history of environmental law with economists estimating that it generates more than trillions of dollars in net benefits to society each year.

Third, the Flint tragedy dramatically highlights an environmental justice problem—environmental risks continue to be disproportionately concentrated on poor and minority communities. Flint is a majority African-American community with more than 40 percent of the population living below the poverty line. In 1982, columnist George Will wrote a remarkable column opposing the Reagan administration’s effort to allow more lead in gasoline. Entitled “The Poison Poor Children Breathe,” Will observed that “the problem of lead in the environment . . . is a childhood health problem that illustrates how society’s hazards are often distributed regressively – persons lowest on the social ladder have special handicaps for climbing.” Will noted that “[a]ny childhood disease that threatened affluent children as lead poisoning threatens poor children would produce public action faster than you can say ‘swine flu’.” The same is true today, as illustrated by the Flint tragedy. Government officials in Flint responded promptly to GM’s complaints about the water, but its poor residents were not warned of the hazard.

Fourth, Flint exposes fundamental inadequacies in how lead in drinking water currently is regulated under the SDWA. When EPA first regulated lead in drinking water in 1991, 56 Fed. Reg. 26,460 (1991), it knew that there is no safe level of exposure to lead. Because of lead’s potentially severe health effects at even low levels of exposure, EPA established a health-based goal of zero lead in drinking water. The SDWA directs EPA to set limits on contaminants in drinking water as close as is feasible to the health-based goal. Thus EPA had to determine how close to zero the standard could feasibly be set.

Although the use of lead pipes and lead solder in drinking water systems was prohibited in 1986, an enormous number of homes still have such plumbing or are served by lead service lines. EPA concluded that Congress had not anticipated the problem of drinking water contamination occurring as a byproduct of pipe corrosion. It argued that public water systems should not be responsible for contamination from portions of the distribution system beyond their control. 56 Fed. Reg. 26,460, 26,476 (1991). Because a requirement that all lead service lines be removed would cost cities many billions of dollars, EPA instead required water suppliers to employ relatively inexpensive corrosion control measures to prevent lead from the pipes leaching into the water. Under the regulations EPA adopted if more than 10 percent of a city’s water samples exceed 15 ppb lead at the tap, the city water supplier is required to add a chemical to the water to inhibit corrosion. If these corrosion control measures failed to reduce the percentage of samples exceeding this action level, water suppliers were required to replace lead service lines on a schedule stretching to 2014.

When it shifted to the corrosive Flint River water, Flint failed to use corrosion controls, even though a March 2015 consultant’s report urged it to do so. This clearly would have reduced levels of lead in Flint’s water, though it would not have completely eliminated lead contamination. It is well known that levels of lead in tap water can vary widely within a single system. Some cities gamed the system by choosing to do most of their testing at locations where they knew they would be less likely to find lead contamination. Environmentalists argued that EPA’s regulations were inadequate because they could leave up to one-tenth of a city’s population exposed to unlimited levels of lead. Faced with legal challenges from environmentalists attacking the rules as too weak and cities attacking the rules as too stringent, a reviewing court upheld EPA’s regulations. American Water Works Ass’n v. EPA, 40 F.3d 1266 (D.C. Cir. 1994).

Fifth, the Flint tragedy illustrates the difficulty of remediating environmental harm once toxic materials are incorporated into the infrastructure of urban areas. More than a decade ago high concentrations of lead were found in Washington, D.C.’s drinking water as a result of testing by Marc Edwards, the very Virginia Tech professor who blew the whistle on Flint’s contamination. In addition to employing corrosion control measures D.C. began replacing lead service lines. Like the widespread use of asbestos and lead paint in homes and buildings, lead in water supply systems can continue to pose severe risks to public health long after use of the toxic materials is banned. Many cities like Flint and Washington, D.C. have lead pipes and plumbing in their water supply systems that eventually must be removed and replaced at great expense.

Sixth, Flint illustrates the importance of civil society groups serving as a backstop when government officials fail to implement or obey the law. Private parties were the first to publicize the lead contamination in Flint. Predictably they initially were dismissed as alarmists by the very government officials who failed to ensure that Flint’s drinking water was safe. In 1882 the Norwegian playwright Henrik Ibsen wrote An Enemy of the People, a play about a community’s demonization of a local doctor who exposes contamination of the town’s economically vital baths. The play captures a timeless pattern that has been repeated for more than a century. Fortunately environmental laws in the US encourage private parties to hold government officials accountable when they fail to protect public health. This now appears to have happened, at least belatedly, in Flint. One can only hope that the lessons embodied in the Flint tragedy will make it less likely to be repeated in the future.

Robert Percival is the Robert F. Stanton Professor of Law & Director of the Environmental Law Program at the University of Maryland Francis King Carey School of Law. He specializes in environmental law.

Suggested citation: Robert Percival, The Poison Poor Children Drink: Six Lessons from the Flint Tragedy, JURIST – Academic Commentary, February 11, 2016, http://jurist.org/forum/2015/11/robert-percival-six-lessons.php.