Max Lubell: Michigan must be accountable to Flint

Monday, October 24, 2016 - 7:11pm

The state of Michigan has a history of taking power away from local governments, witnessed in the use of emergency manager systems and more recently in the state’s implementation of a Receivership Transition Advisory Board in Flint. This history displays a massive lack of mechanisms to hold the state accountable for its mishaps, as well as the stripping of power from local governments. This usurping of power from local governments and failure to create accountability mechanisms have negative consequences.

The suppression of the city of Flint’s power to sue the state is an example of inappropriate unilateral overreach in the wake of the Flint water crisis. Furthermore, refusing to be held liable demonstrates a lack of mechanisms for local governments to hold the state accountable.

On March 24, the city of Flint filed a notice of intent to sue the state of Michigan over the lead contamination of the city’s water supply. Though on the surface, the notice seems threatening, it is actually only a formality. When the notice was issued, Flint Mayor Karen Weaver stated that the city had no intent to sue the state government. Rather, the notice was filed as a precaution. The state of Michigan requires a notice to be filed within 180 days of discovering a possible claim. The city of Flint simply wished to keep its options open, in the event that the city decided to sue in the future.

Regardless of Mayor Weaver’s statement, state officials were appalled. House Speaker Kevin Cotter (R) and Gov. Rick Snyder called on the city to withdraw the notice, but the city refused. Mayor Weaver explained her intentions in a statement to the Detroit Free Press, stating, “I needed to preserve the city’s right to pursue a legal remedy if it is determined a lawsuit is necessary in the future.”

While Flint is no longer governed under an emergency manager, there is a five-member Receivership Transition Advisory Board in place. The board, which was appointed by Gov. Snyder, is tasked with ensuring a smooth transition away from emergency manager leadership. But as a result, the board made changes that will affect the ability of local government to hold the state accountable. The board changed leadership rules to require board approval if the city decided to file a lawsuit, stripping the city of its ability to sue the state without interference.

The decision to unilaterally take the city’s ability to sue away is representative of a larger problem. The Flint water crisis was directly caused by mishaps and failures on the state level. The use of an emergency manager system has several negative impacts. It disenfranchises voters and threatens basic tenets of democracy by repressing the power of local governance. Furthermore, the decision to issue an emergency manager and subvert the local government's political capability played a significant role in the contamination of the water supply.

The water crisis was directly caused by decisions made independently from Flint’s local government, in an attempt to protect the city’s budget. Specifically, Flint’s emergency manager decided to switch to the Flint River for drinking water, without properly treating or testing the water, as a $21 million cost-saving measure. The water crisis proves that when the state acts and thinks unilaterally and with a budget-first mentality, it makes inefficient and harmful decisions that the state fails to be held accountable for. Now, the state of Michigan is falling into the same trap that set the seeds for the water crisis by taking away Flint’s right to sue. It is eliminating a mechanism of accountability and usurping the city’s authority in an attempt to avoid a costly and time-consuming lawsuit.

I foresee that individuals who will defend the state government’s decision will state that taking the right to sue away was for the greater good. After all, even I believe that a lawsuit may have negative consequences for all parties, regardless of any fault the state had in the contamination of the water supply. Another major lawsuit in the case would create budget constraints at the state level, which could minimize the amount of further funding available for fixing the water infrastructure. A lawsuit could also create political enemies for the city in state government, making it difficult for Flint to receive further assistance.

However, such an argument misses the critical point that Mayor Weaver clearly stated: The city was simply keeping its options open, in case it ran out of strategies to hold the state accountable to decontaminate the water supply. It is clear that the only reason the city issued the notice was because it needed to preserve an alternative strategy in the event that the state did not sufficiently aid efforts to decontaminate the water supply. If the state government was so concerned that the city would sue, then the best strategy to stop litigation was simple. If the state adequately aided the city of Flint, then there would be no need for a lawsuit. After all, it is highly unlikely that the city would still sue the state if they provided aid, because the state was willing to be held accountable. There would be no beneficial impact to entering a costly lawsuit if the state provides the assistance the city needs because that would unnecessarily harm political ties and be costly for Flint.

Rather than come to the city’s aid, the state government, primarily House Speaker Cotter and Gov. Snyder, wanted to work around the city’s needs. They wanted to use their power to take accountability mechanisms away from the city, which demonstrates the other major problem: the lack of state accountability.

Taking the power of a lawsuit away displays a lack of accountability mechanisms for when state government fails smaller local governments. It is crucial we give cities the power to hold their state governments accountable for their mishaps. The decision to take the power to litigate away from Flint is an instance of the state of Michigan working against that need. The city of Flint’s threat to sue was an accountability mechanism that would have ensured the state did not make the same mistake again. It was also a mechanism to ensure the state would continue to aid the city.

Flint needs avenues to ensure the state of Michigan continues to supply assistance for the water crisis. The decision to take away the ability to litigate against the state displays two major issues: a lack of accountability mechanisms and the stripping of power from local governments.

Max Lubell can be reached at mlubell@umich.edu.