After Flint, Uptick in Environmental Indictments Unlikely

David Schultz. It's been five years, one month, and five days since the mayor of Flint, Michigan, declared a state of emergency. That was when most people outside of Flint first realized something had gone very, very wrong with the city's drinking water. Of course, for the roughly one hundred thousand people who lived in Flint, the crisis began much earlier, when, in an attempt to save money, the city switched its water source to the heavily polluted Flint River without preparing

or treating its aging network of lead pipes. As has been documented in voluminous court filings and scientific except since then, this polluted water eroded the untreated lead pipes and exposed the entire city, including its children, to extreme amounts of

lead and other poisonous contaminants. Several lower level. People who worked for the city and the state were subsequently hit with criminal charges, But more than five years after the crisis made headlines, prosecutors are now aiming about as high as they could possibly go. Last week, Michigan's Attorney general filed two misdemeanor charges of wilful neglective duty against Rick Snyder, the governor of Michigan during the lead up to and

the aftermath of the Flint crisis. Snyder is fighting the charges, which his attorneys argue are quote wholly without merit. But it's worth noting just how rare this all is. Government employees and especially elected officials, are rarely held personally liable, littleone criminally liable for the decisions they make on the job.

That's because of a legal principle called sovereign immunity, and it comes into play a lot after a big environmental disaster, when the victims are trying to use the courts to get accountability. Could the Flint crisis and it's aftermath be a sign that sovereign immunity is changing. I pose that question to Bob Percival, a law professor at the University

of Maryland who heads up its environmental Law program. Percival says he doesn't actually think that sovereign immunity will change that much as a result of the Flint crisis, and he says, depending on the evidence that comes out, Michigan prosecutors may actually have a pretty tough time trying to

get a conviction against Snyder. Well, it's very unusual for criminal charges to be brought against government officials, but then again, the Flint situation was so outrageous that I thought that if they had the evidence to back up such criminal charges,

it would be appropriate to bring them. So I think the case will depend a lot on what was on the governor's cell phone when they took it, because otherwise it's very hard to prove cases like this, because it depends upon what the governor knew, when he knew it, and how he acted in response to information, did they try to cover it up? And that presumably will all

come out in court. Right. I've heard some people say that this is going to be kind of a difficult case for the prosecutors to make, precisely because you mentioned that, you know, it's very rare that elected officials get charged with environmental crimes. Do you agree with that or do you think that the prosecutors will be able to convict Well, again, I think it will all depend on the evidence that

they have. If they're able to show that he knew that people were being poisoned and that this was a serious health problem, and instead of acting to alleviate the problem, he just tried to cover it up, then it's more likely that he could be convicted. But then again, the charge is wilful neglect of duty, so you have to

show more than just all he screwed up. But if you can prove deliberate attempts to cover it up and not taking any actions to try to alleviate the harm to public health, then it's more likely they'd be able to convict him. Let's take a step back and talk about the overall concept of sovereign immunity. I see a lot of tourqu cases against public officials get dismissed for this reason. Can you explain a little bit about why that is and how sovereign immunity works when it comes

to environmental cases and environmental tourts. Well, Sovereign and immunity is sort of a default doctrine. It's based on an ancient concept that we inherited from British common law, the notion that individuals could not soothe the King and God entities then kind of inherited that immunity. But it's always

subject to being waived if legislation is passed. And in most of the federal environmental statutes, Congress has actually regulated federal entities when they're involved in pollution situations and allow them to be sued if they violate the law. And under the federal environmental laws, criminal liability is imposed whenever

there's an intentional violation of the law. Now it's a different situation though, when it's not the state who's actively violating some regulation, but it's state officials who are supervising

what the government does to protect people. And yet even then, if the actions by the government officials are so outrageous and so willful in neglecting to do what everyone would agree would be their duty to protect the public, then in those circumstances, criminal liability can be imposed, right, And I think that's come into play in the Flint case and that we've seen I would say roughly half a dozen maybe more elected officials or public officials who were

serving at the city level or at the state level face criminal charges or at least be held personally liable for what happened in Flint. And I know that some of those questions about waiving sovereign immunity went all the

way to the Supreme Court. Why is the Flint case different in that these officials did not were not able to claim sovereign immunity here Well, here you had lots of evidence of really gross misconduct that they knew about the health harm and not only did nothing to alleviate it, but actually tried to cover it up, lied about it, and in those circumstances that those actions are so outrageous that the courts that have looked at this were not

doing the usual bending over backwards to protect government officials by saying, well, your qualified immunity should protect you, because we don't want to be deterring people from serving in government and always second guessing what they do. Once you reach a certain point where what's happening is so outrageous, then they're not going to find that they're immune from liability even under the criminal laws. So let's talk about

how this could play out in the future. And you kind of alluded to this earlier, but I wonder if the Flint case was so unusual and so egregious that it won't really have any bearing on future environmental catastrophes, or whether we could see this case used as a model when there's you know, an oil spill or you know, some kind of really awful environmental disaster, where we could see you know, mayors or governors or city council members held personally liable in the future based on what happened

with Flint. Well, I would hope that what comes out of Flint would be something that would be a warning that government officials have to be proactive as soon as they have evidence that harm is occurring when it comes to the oil spills. For example, the federal government did hold BP criminally liable for the oil spill in the Gulf, but it was the corporation itself that was held criminally

liable and not the individual executives. The only individuals who were criminally charged as a result of the BP spill were some workers on the oil rigs who allegedly had deleted text messages and that was considered destroying evidence. So while there was a very large fine against the corporation that was imposed criminally and the significance of that is they can't deduct that from their taxes as they could

do with the normal civil penalty. And then I mean the federal oversight officials who were supposed to be checking to make sure everything was okay at the site, at the Deepwater Horizon site. None of them were held criminally liable, right, No, And you know, there, I think their activities would be considered perhaps negligent, but it wasn't the kind of situation where they, you know, knew something and they knew that

required action and then tried to cover it up. And I think that's one of the reasons why the oil rig workers were charged criminally, because by deleting the text messages, they were trying to cover up what was known at the time the spill was about to happen. So it sounds like basically what you're saying is that, you know, the bar for public officials being held liable for environmental disasters is still really high. It hasn't gone down, you know,

or it hasn't moved since the flint crisis. It's still as high as it ever was in I you know, understanding you correctly, Yeah, I think that that's true, and yet I would think that the mere fact that these charges are being brought, even if the governors acquitted, will have a deturnent effect to make sure that public officials in the future respond as quickly as possible and not try to cover up instances of where they knew that people were being harmed and deliberately decided not to take

actions that it was possible for them to have taken. Yeah, because that's another thing I was thinking about, is what if they're let's say there's a you know, city council meeting and there's a mayor gets some advice from one of his or her advisors saying, you know, hey, we need to spend more money on this wastewater treatment plan or we could have a huge environmental disaster, and the mayor says, well, you know, I'd like to do that, but I also want to spend money on schools, so

I'm going to choose to you know, budget those money for the school system. And then there's a catastrophe. Could that be a situation where you could argue that that official should have known or did know that they were, you know, risking a disaster that then came to happen. Well, that's certainly could give rise to negligence liability. I think more likely civil liability than criminal liability, which would require

really reckless, willful gross misconduct. I see. Okay, So just to kind of wrap it up overall, it sounds like it's that classic sort of Washington kind of thing where you know, what did you know and when did you know it? You know, if you can't get held criminally liable for making the wrong decision on an environmental issue, but you can get held criminally liable if you made the wrong decision and then cover up the fact that

you made the wrong decision. I guess is that how it is well, especially in a situation where the wrong decision was not to take action that easily could have been taken to alleviate the problem. That's it for today's episode of Parts Provillion. If you want more environmental news, check us out on Twitter. We use the handle at environment just that at environment nothing else. I'm at David B. Schultz if you want to chat with me about anything

that's on your mind. Today's episode of Parts Rebellion was produced by myself and Josh Block. Parts Pavilion was created by Jessica Coombs and Rachel Daegel. The music for today's episode is a message by Jazar and the quest by Tom Hillock and Nicholas Boskovic, who used into a creative comments license. Thank you all so much for listening. This is Adam Allington and I'm here to announce a new season of uncommon Law, a narrative podcast series from Bloomberg Law.

My co host and I will speak with African American attorneys and hear their perspectives on how big law is for in some cases, isn't adapting to become more diverse and inclusive. It's not fair, But what can be better than being on the front lines of helping to make this country better for all of us? If not us, who, if not now win? Just search for Uncommon Law wherever you get your podcasts.