A year ago, as claims surfaced that Flint, Michigan’s water had been contaminated with lead, state employees were reassuring residents that their findings suggested otherwise.
“So upon review, we don’t believe our data demonstrates an increase in lead poisoning rates that might be attributable to the change in water source for Flint,” wrote Nancy Peeler, head of the Michigan department health and human services’ childhood lead poisoning prevention program, in a 28 July 2015 email to colleagues.
The analysis cited by Peeler showed a spike in elevated blood lead levels among Flint residents, in the months after the city began using a local river as its main water source. Peeler, however, attributed the increase to a “seasonal effect”, brought on by “people opening and closing windows more often in the summer”.
According to Michigan’s attorney general, Bill Schuette, Peeler’s action rises to the level of misconduct in office. He announced criminal charges on Friday against Peeler and five other former and current state employees. In all, nine have now been charged.
But while Schuette’s announcement was welcomed by residents of the Rust Belt city, looming questions remain about how prosecutors will be able to prove that the actions of these employees amounted to crimes – particularly while high-level officials have remained as yet untouched.
David Uhlmann, a University of Michigan law professor and chief of the US Department of Justice’s crimes section from 2000 to 2007, said without criminal charges against political leaders in Flint at the time the crisis began, it’s fair to ask whether it’s appropriate for charges only to be brought against low-level employees who carried out “poor decisions maybe by their bosses”.
“The Michigan attorney general continues to pile on charges against career government officials without addressing the fact that the decisions that caused the Flint water crisis were made far above their pay grades,” he said.
Criminal charges against state and local officials for drinking water violations are unusual, Uhlmann said, and most involve civil cases against a municipality. In rare instances where criminal charges have been brought, he added, “the misconduct has involved sewage or wastewater disposal, not drinking water violations”.
Peter Henning, a law professor at Wayne State University who has written about the potential for criminal charges in Flint, said the defendants’ actions may have led to “awful” results, “but are they the ones who failed to act, or acted improperly?”
“If all you show is bad decisions, that’s not a crime,” Henning said. “There’s no guarantee that people will avoid mistakes, but for a crime, there has to be something more – of course, that something more is there intent.”
Environmental employees face allegations of tampering with or altering lead in water tests, while those in the health department face allegations of concealing tests that showed elevated blood lead levels. The multiple felony and misdemeanor charges carry sentences of one to five years in prison and fines of up to $10,000.
One employee, Adam Rosenthal, was charged with tampering with evidence for “knowingly and intentionally” altering or destroying lead and copper test results. The Guardian first reported that, in 2008, Rosenthal suggested gaming water tests results for a separate, suburban Detroit water system to avert issuing a “public notice”, which would have alerted residents of dangerously high lead levels.
The charges were welcomed by some residents of the Rust Belt city, who have been grappling with water quality issues for over two years, brought on by a state-appointed emergency manager’s decision to use the corrosive Flint river for drinking water. Officials have yet to say when residents can drink unfiltered water, and many clamor for the city’s network of lead pipes underground to be replaced. The city earlier this year received $25m from the state to begin the process; the awarding of a $20m federal infrastructure grant was also announced on Friday.
But residents, too, question whether the charges are directed at the right people – and whether they will make any difference.
“I hope, I sincerely hope, that there are going to be more charges, particularly something against the emergency managers that were here and oversaw a lot of these decisions,” said Nayyirah Shariff, an activist and member of the Flint Democracy Defense League. “But on some other level it just feels like a show, because we’re still living our lives with bottled water.”
Officials say the investigation continues and other charges may be forthcoming.
“Like organized crime, we are working our way up in the DEQ [department of environmental quality] and expanding the scope of investigation,” said Andrew Arena, the former head of the FBI’s Detroit office and lead investigator on the Flint case.
Among the challenges of the legal case will be proving intent, experts say. When asked about a possible motive on Friday, the closest Schuette’s team came to an answer was, at best, generalized.
“It’s part arrogance, it’s part viewing people in Flint as expendable,” Schuette said. His colleague, Todd Flood, also declined to elaborate.
Henning pointed to the tampering with evidence charges as an example of the “difficult case” to prove for the state. Among the charges, environmental employees are accused of misinterpreting the lead and copper rule, including allegations that lead tests were explicitly altered to subvert federal regulations.
“There’s a potential field day in there [for defense attorneys],” Henning said. “They’re going to ask every government witness: ‘You interpret that, you explain it.’
“No one disputes what happened,” he continued, “and that’s what always so interesting about these white collar cases: there is no dispute what happened … [but] the defendants could well say, ‘You can criticize us, but look at what everyone else did. And start pointing the finger at everybody else.’
“They certainly made mistakes,” Henning said. “Are mistakes crimes? We’ll see.”