Susan Scaggs

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The crisis in Flint, Michigan last year was a wake-up call for many in the world of environmental enforcement. So many things went wrong. Michigan Department of Environmental Quality bent the rules to save some money.[1] The EPA waited far too long to get involved because under the Safe Drinking Water Act, states are “primary enforcers.”[2] Finally, even the citizens who were affected by the unsafe water had little recourse because their ability to initiate and win in a citizen suit is so limited by agency discretion.[3] All of these factors contributed to the devastation that happened over a period of several months during which the people of Flint, the majority of whom are African-American, drank water that contained severely high amounts of lead and other dangerous substances.[4] Several people died as a result, and many more suffered brain damage and other illnesses from drinking water that their government claimed was safe.[5]

The Safe Drinking Water Act (SDWA) is the law that governs municipal water supply and gives specifications about acceptable levels of contaminants in drinking water.[6] The SDWA provides a cooperative federalism model for enforcement, which involves the state agencies and the EPA working together to enforce.[7] Despite having gone through three iterations of the Act, Congress still has not given the EPA enough guidance to write regulations that are comprehensive enough to avoid a disaster like the one that happened in Flint, Michigan.

This Note seeks to address problems with the legal framework surrounding the Safe Drinking Water Act that lead to the crisis in Flint. The most prominent culprit is the vague language in the SDWA that poorly defines the EPA’s and state agencies’ roles under the Act.[8] Lack of specificity regarding when the EPA needs to take over for a state that is not enforcing SDWA violations in addition to no firm requirement for communicating drinking water problems to the public exacerbated the situation in Flint. Finally, the inability of members of the public affected by dangerous drinking water to get relief through the courts because of a weak citizen suit provision in the Act left solutions entirely in the hands of the government.[9]

This Note proposes three solutions to addressing these problems. First, Congress should provide clearer guidelines for when the EPA needs to take over for a state agency. This new requirement would help preserve the cooperative federalism model under the SDWA while still requiring EPA to do its job.[10] Second, the regulations should specify a timeframe for when a government agency is required to communicate with the public.[11] This solution would at least keep the public informed about when their water is unsafe and would hopefully prevent illness associated with drinking contaminated water. Finally, this Note proposes that the courts reassess the discretion they give to agencies for SDWA cases. This would allow citizens to hold the EPA accountable for enforcing the SDWA.[12]

The entire country will continue to face water crises like the one in Flint because water infrastructure in hundreds of cities is aging.[13] The fight for safe water will not be an easy one, but amending the SDWA so that it protects the public when our infrastructure fails is a step towards better water for us all.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] Merrit Kennedy, Lead-Laced Water in Flint: A Step-By-Step Look at the Makings of a Crisis, NPR: The Two-Way, (Apr. 20, 2016), http://www.npr.org/sections/thetwo-way/2016/04/20/465545378/lead-laced-water-in-flint-a-step-by-step-look-at-the-makings-of-a-crisis.

[2] Miguel del Toral, MEMORANDUM: High Lead Levels in Flint, Michigan – Interim Report (June 24, 2015), http://www.aclumich.org/sites/default/files/Original%20EPA%20memo.%20062514.pdf.

[3] See Jaime M. Nies, Annotation, Citizens’ Cause of Action Under Safe Drinking Water Act, 42 U.S.C.A. §300-j8, 16 A.L.R. Fed. 3d Art. 4 (2016) (discussing citizen suit case law under the SDWA).

[4] Kennedy, supra note 1.

[5] Id.

[6] 42 U.S.C. §300f et.seq. (1974).

[7] Id.

[8] Id.

[9] Nies, supra note 3.

[10] Joel Mintz et al., Environmental Enforcement Cases and Materials 47 (2007).

[11] H.R. 4470, 114th Cong. (2016). The House of Representatives has started work on this solution by passing a bill that gives a 30 day communication requirement.

[12] Nies, supra note 3.

[13] Rob Curran, Flint’s Water Crisis Should Raise Alarms for America’s Aging Cities, Fortune.com (Jan. 25, 2016), http://fortune.com/2016/01/25/flint-water-crisis-america-aging-cities-lead-pipes/.