More than pipes and penny-pinching: Flint crisis reflects racism

Peter J. Hammer is a professor at Wayne State University Law School in Detroit, and director of the Damon J. Keith Center for Civil Rights. This commentary is based on

The Michigan Civil Rights Commission is holding hearings on the Flint water crisis from a perspective of civil rights and racial justice. Framing Flint in terms of race fundamentally changes our understanding of what took place and why. It changes how we think about the underlying problem of municipal distress, the tool of emergency management, decisions relating to Flint’s participation in the Karegnondi Water Authority (KWA), how the project was funded, the financially driven decision to use the Flint River as a source of drinking water, and the political environment that failed to recognize and respond to the mounting crisis.

We need to develop more meaningful understandings of how race functions in modern America if we want to achieve greater racial equity. In addition to intentional discrimination, there is implicit and unconscious bias, structural and strategic racism. Structural racism consists of the inter-institutional dynamics that produce and reproduce racially disparate outcomes over time. Strategic racism is the manipulation of intentional, unconscious or structural racism, regardless of whether the actor has express racial intent. At a basic level, structural racism creates vulnerability on the part of affected populations, while strategic racism exploits that vulnerability for private or public gain.

Bridge readers have a better understanding than most about the details of the crisis in Flint. Nevertheless, the lens of strategic-structural racism permits the dots to be connected in a revelatory way.

Advocates for the KWA pipeline exploited the vulnerability created by structural racism and emergency management. The degree of complicity between KWA, Department of Environmental Quality (DEQ) and various emergency managers is deeply troubling. A memo from KWA-affiliated engineer John C. O’Malia to officials at DEQ outlined the inside political game that would be played to obtain KWA approval, as early as 2011. The memo stated how they had already lined up support from the Flint mayor and emergency manager. The memo then outlined a strategy to have the city council vote on the issue, not as a means of honoring the democratic process, but as a means maintaining an insurance policy for KWA if the EM law was later overturned in court. The memo reads, in part:

EM has given powers back to Mayor and Council to make the decision on KWA as a precaution if the EM court challenge holds up. This will enable the Mayor and Council to approve the KWA agreement and not be challenged in court!

The approval of KWA was always much more about politics than economics, and state officials were highly complicit.

Who's paying for this?

The state Department of Treasury deserves much more public blame than it has received to date. There was almost no attention in the KWA approval process as to how the city would pay its $85 million share of the KWA pipeline and the estimated additional $60 million costs for improvements for its water treatment plant; this, in a city experiencing a financial emergency and a long history of being unable to obtain financing for necessary investments in its water infrastructure.

The differential manner in which the KWA pipeline and treatment-plant improvements were financed reflects significantly on the question of whose lives matter and whose do not. Treasury, DEQ and the EMs made heroic efforts of questionable legal propriety to make sure that Flint could pay its share of KWA construction. Almost no efforts were made to make sure that Flint could finance the necessary improvements in the treatment plant. In the end, the only source of funds to pay for those upgrades was the money Flint was already using to pay for clean water from the Detroit Water and Sewerage Department.

Financing for the treatment plant and KWA construction came together in a tragic manner. At the request of bond lawyers for the Karegnondi authority, DEQ and Treasury manufactured an administrative consent order (ACO) based upon an alleged environmental violation at the treatment plant. This permitted the bootstrapping of financing for the KWA, but not the plant upgrades. This complicated effort to manipulate rules governing bond financing essentially committed the city to use the Flint River as a drinking water source during KWA construction.

The story of the treatment plant, on the other hand, is a story of negligence and neglect. 2011 reports estimated costs of WTP upgrades at $60-69 million. By 2013, estimates were scaled back to $25-30 million. By 2014, it was down to $7-10 million. In the end, only $8 million was spent before water from the Flint River started flowing through the faucets of Flint homes. To finance these minimal upgrades, the emergency manager diverted funds that had previously been used to pay for clean water from DWSD.

Sadly, the same actors at the heart of approving the KWA project and arranging its questionable financing – Treasury, DEQ and the EMs – were in charge of overseeing the response to the emerging public health crisis. Much of the rest of the tragedy is well known, except for one important episode – the official end of emergency management.

The crisis began when Treasury declared a financial emergency, but Treasury did not want to be left holding the bag when the full dimensions of the public health emergency began to emerge. In March 2015, the EM declared the city council vote to return to DWSD “incomprehensible,” because there was simply no money in the budget for the $12 million dollars that action would cost.

In April 2015, Treasury declared an end to the financial emergency, even though Flint still maintained an $8 million deficit. Treasury arranged an emergency loan for the debt. Mirroring the conditions of the ACO and bond financing, the loan prevented Flint from unilaterally returning to DWSD, leaving KWA or reducing water rates. The financial emergency was now somehow over, but if the cost of paying for clean DWSD water were placed back on the books, Flint’s debt at the end of emergency management would have been higher than when the emergency was first declared.

None of Treasury’s actions in declaring an end to the emergency made an effort to financially account for the human toll of the tragedy or the multi-billion-dollar liabilities emergency management and strategic-structural racism created for the residents of Flint. Structural racism creates vulnerability. Strategic racism exploits it. Flint suffers the consequences.