Editor’s note: This post is part of a series stemming from the Fifth Annual Health Law Year in P/Review event held at Harvard Law School on Monday, January 23rd, 2017. The conference brought together leading experts to review major developments in health law over the previous year, and preview what is to come.
In May 2016, President Barack Obama observed that Flint, Michigan’s water crisis arose from a “culture of neglect” and the belief “that less government is the highest good no matter what.” The crisis, which developed after the city’s unelected emergency manager switched the water supply from the Detroit Water System to the highly corrosive Flint River, caused dangerously high blood lead levels in many of the city’s children, as well as an outbreak of Legionnaire’s disease. Property values plummeted and the state and federal governments were forced to spend hundreds of millions of dollars to mitigate the problem.
Now as a new President who has promised to improve the nation’s infrastructure settles into office, the question remains: Will the culture of neglect, especially regarding the health of poor people of color, continue? The answer may depend upon whether the law recognizes the protection of public health as not only a source of governmental power, but also as a duty for which officials may be held responsible.
Granting Extraordinary Powers To Public Health Officials
The protection of public health is among the most ancient and widely accepted governmental functions. Even before the adoption of the Constitution, cities and states enacted a wide variety of laws designed to safeguard public health. In one of its most important early opinions, the Supreme Court recognized that the Constitution left the states with the authority, known as the police power, to undertake such measures.
Over the next 200 years, Americans have granted extraordinary powers to public health officials. For example, state and federal laws grant public officials wide-ranging authority to isolate and quarantine individuals to prevent the spread of dangerous diseases such as Ebola. These powers, and their limits, have occupied the field of public health law for decades. Yet far less attention has been paid to the question of whether officials can be held accountable when they fail to exercise the authority that is granted to them. Nor has much consideration been given to whether government officials can be held legally responsible when their own actions jeopardize public health. The Flint water crisis raises these critical issues.
The dearth of attention to the duties of public health officials stems in part from the Supreme Court’s clear rejection of any federal constitutional right to protection by the state. Less noticed is that rights to public health protection are similarly weak or absent in state constitutional, statutory, and common law. Michigan courts, for example, have cited federal due process cases in rejecting a state constitutional right to public protection. In addition, the Michigan Tort Claims Act confers absolute immunity on the highest executive officials in any jurisdiction, effectively shielding the Governor, mayors, and emergency managers from tort liability for their failure to protect health, or even for actions taken that harm health. Lower level officials may be held liable, but only if their actions constitute gross negligence. Other state courts have relied on common law notions to reject a tort duty to protect, even in the face of legislation permitting suits against the government.
To be sure, statutes sometimes create specific obligations to protect public health. In the case of Flint, the most relevant statute is the federal Safe Drinking Water Act (SDWA). The Copper and Lead regulations issued under that Act requires large public water systems to test for lead, and undertake certain mitigation actions if more than 10 % of the samples show elevated lead levels. In Flint, it appears that officials failed to comply with the Act, and one court issued an injunction mandating compliance. Another court, however, ruled that SDWA does not create a private right of action, and offers no grounds for compensatory relief.
Dispersion of Responsibility
In theory, legal duties for public health protection may seem unnecessary because government actors are accountable to the voters when they fail to protect public health. In practice, this safeguard is insufficient. One problem is the wide dispersion of responsibility. At one time, public health powers were primarily vested in single health agencies. Today, a wide range of state and federal actors have responsibility for public health protection, leaving voters (and sometimes the officials themselves) uncertain as to who is responsible for protecting health. And some of these agencies don’t even see public health protection as their primary mission.
The Flint Water Advisory Task Force commissioned by the Governor to study the problem In Flint, for example, concluded that the Michigan Department of Environmental Quality, the Michigan Department of Health and Human Services, the county department of health, the federal Environmental Protection Agency, the city manager, the Governor, and municipal officials all helped – often through their own inaction – to create the crisis. Compounding the problem was the fact that the Governor had earlier responded to the city’s dire fiscal situation by utilizing a state law permitting him to appoint an emergency manager to run the city.. This process, which was upheld by the U.S. Court of Appeals for the 6th Circuit in 2014, effectively deprived Flint’s residents of their right to self-governance and undermined political accountability.
The lack of clear legal responsibilities and remedies, and the corresponding erosion of political accountability, doesn’t mean that government officials are never held to task for failing to protect the public’s health. The uproar and response to the Flint crisis shows otherwise. After months of dogged advocacy, the citizens of Flint were finally able to shine enough light on their problems to stir a response. Slowly the situation in the city has improved as lead levels are dropping. Legal relief also remains a possibility. Despite high hurdles, over 60 civil cases have been filed and both state and federal courts have rejected motions to dismiss.
Perhaps most significantly, at least 13 state and local officials have been charged with criminal violations, including misconduct in office, conspiracy to tamper with evidence, willful neglect of duty, and manipulating collection samples under the Michigan Safe Drinking Water Act. Although most of these cases remain pending, some officials have already accepted
But the Flint crisis may be the exception that proves the rule. Flint is not unique for either the high blood lead levels of its children or the failure of its officials to safeguard public health. What is unique is the publicity the crisis has garnered, the reaction that has ensued, and perhaps the egregiousness of the official misconduct. But it should not take evidence that officials tampered with evidence or deliberately misled the public to hold them to account. The power to protect the public’s health should imply the duty to do so.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/2kZjZNW
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