Flint of Outrage

Toni M. Massaro & Ellen Elizabeth Brooks*

Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan, from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits.

Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked the conscience.” The litigants also raised equal protection arguments that government targeted the community based on race and poverty.

This Article makes three claims. First, it asserts that fundamental rights and equal protection arguments that challenge the denial of uncontaminated water face the serious, perhaps insurmountable obstacles that plague any call for new or expanded constitutional rights. Constitutional law is clunky and often formalistic. Doctrine and principles of judicial restraint here militate against categorically elevated judicial scrutiny—which we call thick rights strategies—of these and similar public officials’ actions. Moreover, the thick rights strategies may entail liability questions that are not—as yet—judicially manageable.

Second, it asserts that “shocks the conscience” arguments offer a viable alternative to a thick rights strategy. Properly understood, this test enforces a liberty baseline, even absent a fundamental right or suspect classification. This thin rights test is properly reserved for worst-case scenarios, not for garden-variety government blunders. Flint qualified.

Third, it argues that this constitutional baseline liberty may apply to all environmental cases in which shocking government conduct elides established fundamental rights or suspect classification categories. Invoking it would not open judicial floodgates or risk undue judicial intrusion into regulatory matters better left to other government branches. It would maintain a difficult-to-flunk but critical liberty limit on extreme official disregard for human wellbeing and environmental justice. It also would provide space for the development of a potential fundamental right to uncontaminated water while allowing public airing of the serious harms to life, the failure of government processes, the citizen powerlessness, and the grave environmental harms that threaten multiple communities but impose their most horrific costs on the most vulnerable people. The Flint tragedy offers a constitutional cautionary tale that should be noted and heeded.

“The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice.”¹

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© 2017 Toni M. Massaro & Ellen Elizabeth Brooks. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Toni M. Massaro, Regent’s Professor, Milton O. Riepe Chair in Constitutional Law, University of Arizona James E. Rogers College of Law. Ellen Elizabeth Brooks, N.Y.U. School of Law, Class of 2018. Our thanks to Kirsten Engel, Robert Glennon, Michael Mohler, Mia Anne Montoya Hammersley, Helen Norton, and Genevieve Leavitt, for their thoughtful comments.

1 Flint Water Advisory Task Force, Final Report 1 (2016), https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805_7.pdf [hereinafter FWATF FINAL REPORT]. The Flint Water Advisory Task Force (FWATF) was composed of five members who possessed public policy, public utilities, environmental protection, public health, and health care experience. It was appointed by Governor Rick Snyder on October 21, 2015, to conduct an independent review of the Flint water contamination problem. It issued its final report in March of 2016. Id. at 2.