Guest Post

  • February 12, 2016
    Guest Post

    by J. Mijin Cha, independent policy researcher and analyst; fellow, Cornell University Worker Institute; adjunct professor, Fordham University School of Law

    As the crisis in Flint, Mich., further unfolds, the depths to which officials ignored warning signs and allowed the city’s residents to drink poisoned water are astonishing. Recently released emails show local and state officials knew what was happening much sooner than they let on and were more concerned with shifting blame than fixing the problem. As a result, months went by without residents knowing they were exposed to lead, a toxin that has no safe level of exposure and causes severe developmental and physical disabilities.

    The majority of Flint residents are African American, and nearly 42 percent live in poverty. In contrast, just 14 percent of all residents in Michigan are African American, and the state’s poverty rate is less than half that of Flint. For decades, Flint residents have been exposed to a disproportionate amount of environmental pollution, so much so that residents have filed complaints with the Environmental Protection Agency (EPA) that the amount of pollution they are forced to bear violates their civil rights. The demographics of Flint combined with the city’s disproportionate environmental burden make it a classic case of environmental racism.

    Environmental racism is the disproportionate placing of hazardous waste and polluting industries near communities of color. In addition to several previous studies that found race was the number one factor in the siting of commercial hazardous waste facilities, new research found that communities of color and low-income communities are deliberately targeted for hazardous waste siting. Led by researchers from the University of Michigan and the University of Montana, this study is the first national-level environmental justice study to conduct longitudinal analyses using distance-based methods. The results of the study confirm that race and class determine the siting of hazardous waste sites.

    The residents of Flint are all too familiar with the role that race and class play in locating polluting industries. There are at least 227 environmentally noxious facilities throughout the community. Residents have been fighting against these facilities with little success for decades. In 1994, advocates in Flint filed a Title VI administrative complaint with the EPA against a nearby power plant in Genesee. The EPA, like every federal agency, must abide by Title VI of the 1964 Civil Rights Act and ensure that recipients of federal aid do not discriminate on the basis of race, color or national origin.

  • February 12, 2016
    Guest Post

    by Natalia Nazarewicz, Class of 2018, Yale Law School

    “If Flint were rich and mostly white, would Michigan’s state government have responded more quickly and aggressively to complaints about its lead-polluted water?” (New York Times)

    “Was the city neglected because it is mostly black and about 40 percent poor?” (CNN)

    On February 4, the Yale Law School chapter of ACS, in partnership with the Black Law Students Association and the Yale Environmental Law Association, hosted a dinner discussion, “The Flint Water Crisis and Environmental Racism,” to examine the events in Flint, Mich., from a critical race theory perspective. Forty students from the law school, School of Forestry & Environmental Studies, and School of Public Health took part in the conversation.

    Visiting Professor Khiara M. Bridges moderating a discussion on the Flint water crisis and environmental racism

    Visiting Professor Khiara M. Bridges launched a lively, hour-long discussion by putting the Flint water crisis in context: Activists and academics have been aware of a relationship between race, income and risk of exposure to pollutants since the 1970s, and even the Reagan administration knew that environmental hazard sites were predominantly located in nonwhite neighborhoods. Although the link between environmental hazards and race persists even when controlling for poverty, politicians have been loath to acknowledge race as a factor.

    The crisis in Flint happening now is neither new nor unique, Bridges noted. The residents of Chester, Pa., a small city with a low-income African American population, have been in litigation since the 1990s to stop the proliferation of waste treatment plants and other industrial hazards that process toxins from the surrounding, more affluent and white communities. And on the global scale, corporations seeking to avoid U.S. environmental regulations regularly send waste to other countries—largely poor and nonwhite—causing significant health effects and environmental degradation. Looking at such environmental injustice through a critical race theory lens is helpful, Bridges said, as it helps explain how we arrived at a certain point and helps inform our responses to it.

    A number of students highlighted the link between lead exposure in utero or during childhood and subsequent learning disabilities and behavioral problems, concerned that African American children, who already face stereotypes in school as “difficult,” could be hampered for decades through their exposure to Flint’s water. “We need to acknowledge the behavioral and mental effects of lead on the children of Flint as a population-wide structural problem,” Bridges noted, “without individualizing the ‘bad behavior’ onto specific children.”

    Lead poisoning is long-lasting and irreversible, and the effects could be felt in Flint for decades. “This goes beyond the school-to-prison pipeline,” remarked Shannon Prince, JD ’17. “This is like a placenta-to-prison pipeline.”

  • February 12, 2016
    Guest Post

    by Robert A. Sedler, Distinguished Professor of Law, Wayne State University

    Flint, Michigan, is a city in decline. Formerly called “Buick City” because of the extensive GM Buick operations there, it has suffered a significant loss of population and a substantially reduced tax base as GM has shuttered most of its plants in the city. It now has a population of 99,000, close to two-thirds of whom are African American, and over 40 percent of whom are below the poverty level. With the substantially reduced tax base and the resulting loss of revenue to support municipal services, it is not surprising that the city found itself in a “financial emergency,” leading to the 2011 imposition of a state-appointed emergency manager in accordance with the Michigan financial emergency law. Under that law, the city’s finances and all matters relating to financial management are controlled by the emergency manager with only limited input from the city’s elected officials.

    Most of the facts relating to the Flint water crisis are probably known to the readers of this blog, so I will just restate a few here. The Flint water crisis began in 2014 after the Flint City Council, at the urging of the emergency manager and state officials as a purported cost-cutting measure, had voted to discontinue purchasing the city’s water supply from the City of Detroit. Instead it would purchase its water, beginning in 2016, from a newly formed water authority and in the interim would use the Flint River as the source of water for the city. The Michigan Department of Environmental Quality (DEQ) assured the city’s residents that the water from the Flint River was safe to drink. But it wasn’t. DEQ did not require the city to provide corrosion-control treatment to prevent lead from leaching into the pipes, and the city didn’t do so. Lead did leach into the pipes, and Flint residents soon complained about the color and smell of the water and rashes that they had been developing. For a substantial period of time, DEQ officials continued to deny that there was any problem with Flint’s water. It is was only after a study by a doctor in Flint showed high blood levels in Flint children that the governor and state officials acknowledged the problem, and in October 2015, the governor announced that he would switch back to the Detroit water system. Recriminations and firings followed, but the Flint water crisis continues.

  • February 11, 2016
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    The U.S. Supreme Court this week issued an order staying implementation of the Clean Power Plan (“CPP”) -- the Obama administration’s signature action to address climate change -- until the courts decide the merits of challenges to the plan brought by industry groups and states.  It’s quite a surprise. The Supreme Court very rarely stays a regulation while it remains before a court of appeals. 

    Granting a stay is not the same as deciding the case, but the order suggests that five justices have serious concerns about the CPP.  I suspect those concerns may boil down to this: The coal industry, likely the primary target of state implementation of the CPP, is too big for EPA to regulate absent an express congressional directive.

    Where would this notion of too big to regulate come from?  The Court has signaled increasing skepticism of agency interpretations of statutes that the justices believe construe agency authority too expansively or in a way that may be of economic significance.  The Court has invoked this mood—even if I can’t quite call it a principle—in at least three recent decisions.

    In Utility Air Regulatory Group v. EPA, the Court held that EPA lacked authority to regulate certain sources of greenhouse gases under a Clean Air Act program because it would involve a “transformative expansion” in the agency’s authority.  In Michigan v. EPA, the Court invalidated another Clean Air Act rule at least in part out of concern for the costs the rule would impose.  And in King v. Burwell, the Court declined to defer to an agency’s interpretation of the Affordable Care Act because the issue was one of “economic and political significance.”  (I have previously discussed this trend here and here.)

    These cases suggest a new rule of administrative law that inhibits big agency actions that tackle big problems. Under such a rule, the CPP may fall because climate change is a global problem with many contributors and EPA is attempting to engage in relatively significant action in response.  In other words, the Court could hold that EPA can only tinker around the edges of climate change unless Congress clearly says otherwise, a holding that would be particularly ironic since the Court’s decision in Massachusetts v. EPA forced the agency to get into the climate change business in the first place. 

  • February 11, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    The condemnation and trolling on social media was swift, strident and predictable.  Beyoncé had created a sensation during the Super Bowl 50 halftime show in the performance of “Formation,” her foray into the fracas involving national law enforcement and social justice activists, commentators, and observers who have sharply interrogated the police narrative in deadly force incidents in which men, women and children of color have been killed by the police. In her performance and the accompanying music video, Beyoncé castigated law enforcement for recent ethical and tactical lapses, from the “McKinney Pool Party” to Ferguson, Katrina, Chicago, and beyond.  That this rebuke was accomplished so artfully, wondrously, and cleverly infuriated certain elements of white America so much so that #BoycottBeyonce necessarily emerged as a Twitter hashtag, as did a call for a protest march on the National Football League Headquarters in New York City.  According to the Washington Examiner: “Members of the National Sheriffs' Association meeting in Washington turned their backs on Beyoncé during a Super Bowl halftime party, angered the NFL allowed her to sing a song they consider anti-police.”           

    Meanwhile, The New York Times reported that Robert Rialmo, a white Chicago police officer who is in his 20s, has filed a $10 million lawsuit against the estate of Quintonio LeGrier, an African American teenaged college student who Rialmo shot and killed on December 26, 2015. Rialmo also shot and killed an innocent bystander, 55 year-old Bettie Jones, while firing at LeGrier. Rialmo claims in his lawsuit that LeGrier’s actions (that quickly led to his death at the hands of Officer Rialmo) caused Rialmo “extreme emotional trauma.” Trauma that in some alternate universe mitigates the fatal trauma inflicted on the person of Quintonio LeGrier with the six rounds fired into his body by Rialmo. Extreme emotional trauma, indeed.            

    Perhaps this novel legal strategy in attenuating the exposure and culpability of police officers in the shooting deaths of African American teenagers might be considered by former Chicago police officer Jason Van Dyke, who shot and killed 17 year-old Laquan McDonald on October 20, 2014. Maybe the 16 shots that Van Dyke fired into McDonald—even firing into his back as he lay lifeless on the pavement—caused Van Dyke similar “extreme emotional trauma.”             

    What we are seeing far too often in the American criminal justice system generally and in law enforcement specifically is the nascent emergence of a “police victimization” mindset in a “War Against Cops” narrative, a fictive construction that too often places the political interests of the police in diametric opposition to the tangible and critical needs of the communities they police in ways that are counterproductive and inimical to achieving community cohesion and safety.