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Mar 31, 2016
Helen Marie Berg
Helen Marie Berg is a student at The University of Michigan Law School and is a general member of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate.
In January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan. City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents. That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.
Governor Snyder’s request was not only for funds, but for President Obama to declare that the crisis in Flint was legally a disaster—a prerequisite for such an allocation of money and for eligibility for certain government programs. The headline of an article in the Detroit News shortly after Snyder’s request read: “Obama gives $80 million to Michigan for Flint.” Though it sounds hopeful, this headline is misleading.
President Obama declared a federal emergency in Flint—but not a disaster. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was enacted “to support State and local governments and their citizens when disasters overwhelm them.” The Act outlines the process to receive a presidential disaster declaration that would activate “an array of Federal programs to assist in the response and recovery effort.” Governor Snyder’s request for such a presidential disaster declaration was denied. He appealed the decision immediately—only for it to be denied again two days later.
A disaster is defined in the Stafford Act as a “natural catastrophe” which “in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance.” An emergency—a broader designation—is defined as “any occasion or instance for which . . . Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety.” Because the crisis in Flint was man-made, and not a natural catastrophe, it could only fall into the “emergency” category. Therefore, Flint received the maximum grant of aid for federal emergencies: $5 million.
This $5 million emergency allocation has been used in part by FEMA to provide water and water filters to households in Flint (initially only for 90 days, but later extended to August), by the U.S. Department of Health & Human Services (HHS) to disseminate public health information, and by the U.S. Environmental Protection Agency (EPA) to review the State of Michigan’s compliance with the National Safe Drinking Water Act.  Even though citizens have been advised not to drink the water until further notice—a period that will likely exceed FEMA’s water supply provision, even after it was extended—these programs are positive and potentially impactful, albeit a far cry from the initially requested aid to begin vital infrastructure repair.
The $80 million referenced in the Detroit News headline was an allocation in last year’s Congressional budget. Congress originally intended the $80 million allocation to be loaned out to Michigan for water distribution infrastructure repair. President Obama made the funds available immediately when Snyder made his request, but as a loan (one initially intended for the entire state)—not an emergency allocation which would be available with a disaster designation.
In March, Governor Snyder tried once more to appeal the denial, this time asking FEMA to reconsider its denial and to fund several specific programs. The Governor invoked the language of the Stafford Act and explained in his appeal letter that the “incident is of such severity and magnitude that effective recovery” is out of the State and local government’s reach and that “federal relief assistance is undeniably needed to address the unmet needs of those most severely affected by the water contamination.”
In his letter, Snyder noted that the crisis will cause a four percent average decrease in personal income overall amongst Flint residents, equivalent to a $115,000,000 loss to the local economy per year. State law requires that the State’s emergency fund money (which has limitations on how much can be granted to individual jurisdictions) be used for incident-related response operations; it can’t be used to reimburse individual home or business owners—a necessary step to make up for the residents’ economic losses. In contrast, Stafford Act funds could go directly to disaster relief organizations who could reimburse individuals to compensate for their losses. These losses, however, must be “disaster-related.”
Similarly, in declared disasters, HHS will fund programs to provide temporary prescription assistance for disaster survivors. An HHS program like this could have been used in Flint to provide blood tests for each resident exposed to the lead-contaminated water.
But because what happened in Flint is not a disaster under law, Stafford Act funds for these programs were again denied. In its response to Snyder’s letter, FEMA repeated its rationale for its original denial: additional Stafford Act assistance is not appropriate for this kind of event.
The disaster designation is not an absolute requirement to receive more federal aid. Congress could introduce or amend a bill to allocate aid to Flint. Already, Michigan’s delegation has proposed two such measures.
In February, Democratic Congressman Dan Kildee introduced the Families of Flint Act (H.R. 4479), a bill that proposes $765 million be allocated from the federal government and then matched by the state of Michigan for a variety of programs including infrastructure repair, services for families and children exposed to lead, economic development, and a health monitoring program. The bill is ambitious. If passed in its current form, the bill would fund a “Center of Excellence on Lead Exposure” in Flint for medical experts to conduct research and monitor the crisis, and programs to address problems expected in Flint’s future, such as juvenile delinquency and unemployment. At the end of March, the bill was still in committee.
In the Senate, the amendments proposed to the bipartisan Energy and Policy Modernization Act of 2015 (S. 2012) by Michigan Democratic Senators Gary Peters and Debbie Stabenow would allocate $600 million in aid for infrastructure repair and investment in health programs in Flint. The amendment has faced opposition by Republicans, who fear setting the precedent of granting federal aid for local problems. Their opposition—or at least the opposition by Texas Republican Senator John Cornyn—is hypocritical.
Senator Cornyn appealed the federal government’s denial of an emergency designation and grant of federal aid to his home state after an explosion at a fertilizer plant killed 15 people in 2013—and was successful. Michigan Senators have used the Texas story as a reminder to Republicans to be consistent and allow for further funding for Flint. As of the end of March, the Senate had yet to come to a vote on the bill.
Flint’s disaster was man-made, making it clearly outside of the scope of the legal definition of a disaster. But should the definition be expanded? Or should exceptions like the one made for the fertilizer plant be more common? A terrible mix of the emergency manager law, poor leadership, an economically depressed community, and a crumbling infrastructure led to Flint’s crisis. Those last two factors, however, are commonplace. There are dozens of “Flints” sprinkled throughout the Midwest and across the country. Once small-to-medium, working-class cities often fueled by a single industry, they are now small—and shrinking—cities sitting on the bones of what was built by an industry that is now long gone. The bridges, roads, and pipes in these cities are old and in need of repair.
What happened in Flint should be viewed as a cautionary tale, not a bellwether. But with the current state of many American cities, it is possible for similar disasters to happen elsewhere. Expanding the law would provide a fairer and more uniform process for all cities to receive the necessary aid, regardless of how much influence their representatives have to push for a disaster designation, especially now that the nation has an example in Flint of how far-reaching and devastating a non-natural disaster can be. Congress should amend the law to provide a better response to the next “Flint” —or, better yet, take action now to prevent such crises from occurring.
 Melissa Nann Burke, Chris Livengood & Jonathan Oosting, White House to Decide Soon on $96M Flint Aid Request, Det. News (Jan. 16, 2016), http://www.detroitnews.com/story/news/politics/2016/01/14/snyder-asks-obama-declare-federal-emergency-flint/78831312/.
 Jeremy C.F. Lin, Jean Rutter & Haeyoun Park, Events That Led to Flint’s Water Crisis, N.Y. Times (Jan. 16, 2016), http://www.nytimes.com/interactive/2016/01/21/us/flint-lead-water-timeline.html?_r=0.
 Jennifer Dixon, How Flint’s Water Crisis Unfolded, Det. Free Press, http://www.freep.com/pages/interactives/flint-water-crisis-timeline/ (last visited Mar. 25, 2016).
 Melissa Nann Burke, Obama Gives $80 Million to Michigan for Flint, Det. News (Jan. 21, 2016), http://www.detroitnews.com/story/news/politics/2016/01/21/stabenow-obama-gives-million-flint/79134306/.
 Paul Egan & Ted Spangler, President Obama Declares Emergency in Flint, Det. Free Press (Jan. 16, 2016), http://www.freep.com/story/news/local/michigan/2016/01/16/president-obama-declares-emergency-flint/78898604/.
 Fed. Emergency Mgmt. Agency (FEMA), A Guide to the Disaster Declaration Process and Federal Disaster Assistance (2015).
 Chris Livengood & Jonathan Oosting, Snyder to Appeal Obama’s Denial of Flint Disaster Zone, Det. News (Jan. 18, 2016) http://www.detroitnews.com/story/news/politics/2016/01/17/snyder-appeal-obama-flint-disaster-declaration/78944416/.
 Mark Hicks, FEMA Again Denies Snyder’s Flint Disaster Request, Det. News (Jan. 22, 2016), http://www.detroitnews.com/story/news/politics/2016/01/22/fema-denies-snyders-flint-disaster-request/79206308/.
 42 U.S.C.S. § 5122(2) (LEXIS through Pub. Law. 114-119).
 42 U.S.C.S. § 5122(1) (LEXIS).
 Egan & Spangler, supra note 5.
 Fed. Emergency Mgmt. Agency, HQ-16-004-FactSheet, Federal Aid Programs for the State of Michigan Emergency Declaration (Jan. 16, 2016), http://www.fema.gov/news-release/2016/01/16/federal-aid-programs-state-michigan-emergency-declaration; Matthew Dolan & Todd Spangler, Feds Extend Flint Emergency Until August—But No Later, Det. Free Press (Mar. 24, 2016) http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/03/25/feds-extend-flint-emergency-until-august—-but-no-later/82254468/.
 Mary K. Wakefield, On the Ground This Week: HHS to Lead Federal Response in Flint, U.S. Dep’t of Health & Human Servs. Blog (Jan. 19, 2016) http://www.hhs.gov/blog/2016/01/19/ground-week-hhs-lead-federal-response-flint.html.
 Letter from Rick Snyder, Governor of Mich., to Elizabeth A. Zimmerman, Assoc. Adm’r, Fed. Emergency Mgmt. Agency, U.S. Dep’t of Homeland Sec. (Mar. 2, 2016), https://www.scribd.com/doc/301954132/FEMA-Appeal-Letter#download.
 Livengood & Oosting, supra note 8.
 Burke, supra note 4.
 Lindsey Smith, FEMA Denies Appeal for Federal Money for Flint Homeowners, Says Request “Not Appropriate”, Nat’l Pub. Radio (Mar. 16, 2016), http://michiganradio.org/post/fema-denies-appeal-federal-money-flint-homeowners-says-request-not-appropriate#stream/0.
 Snyder, supra note 15.
 44 C.F.R. § 206.36(b)(2) (2016).
 Snyder, supra note 15.
 Letter from Elizabeth A. Zimmerman, Assoc. Adm’r, Fed. Emergency Mgmt. Agency, U.S. Dep’t of Homeland Sec., to Rick Snyder, Governor of Mich. (Mar. 14, 2016), http://mediad.publicbroadcasting.net/p/michigan/files/201603/3375_program_ap_td_letter_3_14_16.pdf?_ga=1.201994001.1061862277.1458513929.
 J.C. Reindl, Democrats Rip Flint’s Response, Pitch Kildee’s $1.5 Billion Plan, Det. Free Press (Feb. 6, 2016), http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/02/06/democrats-rip-flint-response-pitch-kildees-15b-plan/79933284/.
 Families of Flint Act, H.R. 4479, 114th Cong. (2016).
 Reindl, supra note 27; Energy Policy Modernization Act of 2015, S. 2012, 114th Cong. (2016).
 Melissa Nan Burke, Senators Urge Vote Stalled on Flint-Related Bill, Det. News (Mar. 17, 2016), http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2016/03/17/senators-urge-vote-stalled-flint-related-bill/81937860/; Energy Policy Modernization Act of 2015, S. 2012, 114th Cong. (2016).
 Mike DeBonis, Democrats Block Energy Bill over Flint Aid, Wash. Post (Feb. 4, 2016), https://www.washingtonpost.com/news/powerpost/wp/2016/02/04/democrats-prepare-to-block-senate-energy-bill-over-flint-aid/.
 Melissa Nan Burke, U.S. Senate Talks on Flint Aid Bill Remain Deadlocked, Det. News (Feb. 11, 2016), http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2016/02/11/flint-senate/80232862/.
 Burke, supra note 32.
 Detroit, Michigan, Gary, Indiana, Youngstown, Ohio, and Buffalo, New York are examples of shrinking, post-industrial cities. See Stephen Henderson, Editorial, Flint’s Long Misery, at the Hands of Urban Policy, Det. Free Press (Jan. 30, 2016) http://www.freep.com/story/opinion/columnists/stephen-henderson/2016/01/30/flints-long-misery-hands-urban-policy/79531718/; Vince Calio, Alexander E.M. Hess & Thomas C. Frohlich, America’s Fastest Shrinking Cities, USA Today (Apr. 19, 2014), http://www.usatoday.com/story/money/business/2014/04/19/24-7-wallst-shrinking-cities/7871157/.