Flint Water Crisis

No Justice For Flint Water Victims

Unlike private companies, they can't sue their government


Michigan's state and local officials poisoned Flint's water with lead but innocent federal taxpayers are the ones having

Water Pollution
Bert van Dijk via Foter.com / CC BY-NC-SA

to foot the cleanup bill. President Obama has pledged to hand Flint $85 million in aid money. This sounds like a lot, but the fact of the matter is that it is far less than what Flint's victims would have gotten if a corporation — rather than government — had been the culprit. That's because, unlike private companies, the government is shielded from liability lawsuits.

This would be an excellent argument for the wholesale privatization of public utilities, but, alas, privatization is a dirty word in the liberal lexicon.

After initially giving Michigan Governor Rick Snyder only $5 million in going away money to help Flint residents buy water filters and bottled water, President Obama finally acquiesced this week to pleas for more help and authorized another $80 million. Now he's also considering Snyder's request for extending Medicaid eligibility to all Flint children up to age 21 regardless of their income or insurance status.

Setting aside the Medicaid expansion, the $85 million in federal aid combined with the $28 million in state aid that Snyder has arranged, works out to on average $1,000 for each of Flint's 99,700 residents — or about $4,000 for a family of four.

But consider the horror they are confronting:

As has been widely reported, 6.4 percent of Flint's nearly 8,500 kids are now testing for dangerously high lead levels in their blood stream — up from 3.6 percent before the city switched them from Detroit water to toxic Flint River water. Many of these children have developed rashes and brittle bones and face the prospect of permanent brain damage, diminished IQ, and behavioral difficulties. But kids are not the only ones hurt. Around 85 people have been diagnosed with Legionnaire's disease — a particularly horrible form of pneumonia — compared to around six to 13 in a normal year. Ten of them have already died.

Even if Obama expands free Medicaid for all Flint children, the rest of the medical bills — deductibles and co-pays — for middle-income Flint families will be substantial. Nor is that their only financial exposure.

The lead poisoning occurred because Flint failed to treat water with phosphorous, something that corroded the coating inside city pipes and home plumbing, allowing lead to leach in. Though switching back to treated water has diminished the lead content for now, the danger of lead poisoning will always remain unless all the piping is refitted. But replacing city pipes will cost up to $1.5 billion. This would be difficult for even a financially healthy city, let alone one that can't even pay its existing bills and has unfunded pension liabilities of $1.1 billion.

What's more, each homeowner will face at least $4,000 to install a new water heater, plumbing system, and a new service line connection, as The Washington Post points out. And then of course there is the hit to Flint's already declining property values as the city further cements its reputation as an irremediable basket case.

It is an understatement to say that Flint residents are in for some very tough times. But compare the pittance that they will get to the compensation that General Motors and Toyota crash victims received.

GM had to pony up $35 million to NHTSA (National Highway Traffic and Safety Administration) and $900 million to the Justice Department in penalties for the faulty switch in its 2005 Cobalt that was linked to 125 deaths and 250 injuries. What's more, despite the totally deplorable liability shield or immunity from personal injury lawsuits the automaker received from the Obama administration as part of its 2009 bankruptcy restructuring, it still paid $625 million in compensation to the victims. And of course it recalled and fixed all the 2.6 million affected vehicles. All in all, it was down $1.5 billion.

But Toyota coughed up more than double that amount for its suddenly accelerating vehicles that resulted in 12 deaths and 31 accidents. It paid $1.2 billion in fines to Justice and $35 million to NHTSA and fixed all the vehicles, of course. In addition, it made an out-of-court settlement for an undisclosed amount that was likely more than what GM paid to each victim. But the real kicker is that, because it did not have GM's liability shield, it also paid $1.6 billion to all Toyota owners for the loss of the resale value of their cars.

Compare all of that to the $115 million or so that Flint victims will receive!

The main reason that they don't have a prayer of collecting much more is something called the doctrine of sovereign immunity. Under this doctrine, citizens are barred from suing their government for screw-ups that it has caused in the course of discharging a core function unless the government itself consents. Some very narrow exceptions exist but it is very difficult to make them stick.

Some activist lawyers in Michigan have come up with a creative constitutional argument to try and surmount the sovereign immunity hurdle. They have filed a class action lawsuit on the grounds that the government failed to provide Flint residents with equal protection under the 14th Amendment. But this rationale is a stretch that many plaintiffs' lawyers are having trouble buying. Indeed, Reuters reported that law firms representing Southern California residents in their own class-action lawsuits against the recent gas leak caused by Southern California Gas Co, owned by the non-governmental Sempra Energy, have so far declined to participate in the Flint lawsuit because they don't think this reasoning will work.

Scrapping or at least circumscribing sovereign immunity may be worth considering although that isn't a great answer because it will only expose taxpayers to liability for snafus they have not committed.

Privatizing water utilities so that they can be held accountable by strong regulators and courts might be a better solution, as Stephen Carter points out in Bloomberg View. The penalties that private companies would have to pay would be an automatic motivation to minimize Flint-style scandals, especially if they are slapping homeowners with a $150 a month bill as Flint authorities have been doing (talk about greed!). And when these companies do allow them to happen, it would be easier to hold them accountable.

But don't stand on one foot waiting for a privatization program to catch on because in liberal land privatization is anathema. Liberals consider clean, drinking water a "public good" that ought to be immune to privatization and the profit motive. The Washington Post's Dana Milbank, hilariously enough, even tweeted: "Flint isn't a failure of government at all levels. It's a failure of Gov. Snyder's private-sector theology." Never mind that the Flint water system is owned and operated by the government from top to bottom.

Flint ought to be a wakeup call for liberals to stop putting religious faith in government. Until they smell the (clean water) coffee, future victims of future Flints will suffer without relief.

A version of this column originally appeared in The Week.

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  1. governmen

    That’s all the Top.Men. who make up the gubmint!

  2. I’m still seeing a lot of derp about how it’s the fault of libertarianism and privatization. Reality is negotiable; dogma isn’t.

    1. Just ask the derpsters whether not being able to sue the government is the fault of libertarianism and privatization.

      1. So far, I’ve gotten that all-purpose scathing rebuttal known as ignoring the question.

        1. I’d like to know what their evidence is, that could lead them to that conclusion.

          They do have hard and factual evidence, right? RIGHT?

      2. But, but, but, government is accountable, corporations aren’t!

        How many times have you heard that line from proggies?

  3. “As has been widely reported, 6.4 percent of Flint’s nearly 8,500 kids are now testing for dangerously high lead levels in their blood stream ? up from 3.6 percent before the city switched them from Detroit water to toxic Flint River water.”

    Wait – so before the Flint River water started poisoning kids, they still had about 4,000 testing for dangerously high lead levels?

    And that was acceptable, so 4,000 mercury-poisoned kids, ok, but 8,500, bad?

    1. I think the lead levels before the switch were from bad pipes in buildings and not from the water supply.

      1. The lead levels after the switch are also from bad pipes. The new water supply didn’t have added phosphorous to lessen lead pipe corrosion (it does now).

        Which kinda makes you wonder if Detroit was just occasionally not adding phosphorous to the previous supply to save a few dollars for a few days.

    2. Good catch. They seriously buried the lede.

      Hellhole becomes slightly hotter. Blame republicans.

      Flint residents voted for these assholes and then let their kids drink crsppy water.

      Fck them.

    3. “…up from 3.6 percent before the city switched them from Detroit water to toxic Flint River water.”

      My understanding is that the Flint River water is not toxic in itself. It is more acidic than the Detroit water and therefore leeches more lead out the pipes but it is safe if transported through lead free piping. Whoever wrote that line is either ignorant or malicious.

  4. I’ve had someone argue with me that this whole Flint debacle can be blamed on the private sector because Snyder had some plan to privatize the water system, thus he wanted the water to be bad in order to justify the switch and … actually beyond that I couldn’t really figure out what she was alleging.


      It begins and ends there.

    2. Snyder had some plan to privatize the water system,

      He didn’t, so that certain someone is either a liar or stupid.

      1. that certain someone is either a liar or stupid.

        No reason it couldn’t be both.

    3. Did you score?

  5. But they should be even doubly miffed that Flint victims won’t get anything resembling adequate compensation, much less justice, because they can’t sue the governmen without its consent, thanks to the doctrine of sovereign immunity.

    Well, since it’s Flint’s government that did it, their compensation would be … paid for by their own taxes.

    That’s the real issue with suing your city for something widespread like this.

    Unlike a carmaker, there’s no profits or reserves to take, no board to punish executives for costing the company money (and thus no incentives to avoid the situation) – just tax revenue.

    (Even if they were suing State or Federal governments … they’d be taking other people’s tax money for decisions bureaucrats/apparatchiks made, which is barely more morally justifiable.

    States Aren’t Companies; the comparisons don’t work in either direction, and usually to the State’s relative detriment.)

    1. This. They would be suing themselves.

      1. I don’t disagree with your point, which brings to mind the image of a snake eating it’s own tail, but they are not the government, the government is an organization that exists often within a society, much like a company or foundation. But where the similarities end is that companies don’t have a taxation monopoly nor a monopoly on ultimate decision making (even those involving itself).

        1. Government is the Violence Industry.

  6. Liberals have really embarrassed themselves regarding this situation but i suspect they dont care.

  7. So I see a lot of blaming Snyder by the liberals….who are the real players here which may or may not include him? Does anyone have an honest breakdown

  8. So is Dana Milibank normally that stoopid or is just trolling for hits?

  9. http://www.usatoday.com/story/…../79019134/
    “Taken as a whole, in fact, Flint’s kids are better off than the previous generations of Michigander kids in at least one important way. Even after Flint’s disaster, the city’s children have far less lead in their blood than their parents or grandparents did at the same age.”

    what do you think about this article?

    1. the city’s children have far less lead in their blood than their parents

      I’m not letting Michael Moore use this as an excuse for his idiocy.

    2. There’s a good argument to be made that increased lead levels correlate with higher levels of violent crime.

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