Waterhouse: Lessons from Flint: law, economics, equity and the environment

March 8, 2017


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By Carlton Waterhouse

In Flint, Michigan, an appeal to law and economics caused the irreversible disease and neurological damage to innocent children. The complaints of Flint parents and other residents went unaddressed. The state government and the majority of citizens were unconcerned with the predominantly African-American town and the working-class whites and others who lived there. Residents were directed to continue drinking lead-contaminated water while state officials were given bottled water for their protection. This illustrates a deeper problem in environmental protection in America and Indiana. This column uses a short reflection in moral philosophy to look for some deeper truths taught by Flint.

Behind the very technical laws we have in our state and across the country, there are broader goals and ends. When we lose sight of these, laws, like other tools, can become destructive forces that strip people of their dignity, well-being and their lives. When we think about environmental laws this is no less the case. Like other laws, they can be used to protect and preserve life or facilitate and justify its injury and loss. My hope is that this column will help illustrate the difference between them.

Good laws promote just ends. Saint Thomas Aquinas and others remind us that laws promulgated or enforced unjustly are questionably laws at all. In short, laws should serve justice. When they fail to do so, they typically serve as the instruments of tyranny and abuse. Across the globe and across the country, history provides countless illustrations of the law being used to abuse, neglect and sacrifice the well-being of some members of society to benefit others.

Economics, on the other hand, is not concerned with justice. Economic motivations, more often, reflect a concern with enrichment and self-interest. Accordingly, to promote the good, economics should always be coupled to equity. Equity represents a commitment to a collective good. It recognizes that all people warrant and deserve consideration. Economic decisions that neglect equity are bad decisions that promote individual and collective vice.

When laws work unjustly, economics follow suit and resources are distributed in kind. The social groups who make and enforce the laws use them to enrich themselves and their members. Groups who are disfavored and lack representation suffer neglect or outright abuse. In retrospect, we may see these things more clearly. Nazi Germany, Russia under Stalin, Apartheid South Africa, and Jim Crow America all represent legal regimes that abused and neglected groups of people in ways that we now reject. That is hindsight. What we need, however, is foresight.

Most people who benefitted under those regimes did not recognize the injustice of the regime or their complicity in it. They hid behind the law and enjoyed the economic benefits of their status with disregard for those who were abused. Here in Indiana, during the last century, these people drafted and enforced racially restrictive covenants, segregated schools and neighborhoods, maintained a bevy of sundown towns, and denied loans and employment to fellow Hoosiers based on race. Most of this occurred within the law or with the sanction of those tasked to enforce it. When people were challenged for these practices, they used law as an excuse and justification for their unjust and inequitable behavior — denying any impropriety or their personal complicity.

Today, our environmental laws often function in unjust and inequitable ways. Race and class determine pollution exposure. Sadly, regulators and legislators deny, ignore and disregard this reality. Rather than working to change these inequities, they pretend that they do not exist while they personally avoid the pollution exposure that others bear — much like the Michigan officials given bottled water in Flint while residents and their children imbibed lead contamination. These officials, along with the economic players benefitting from the pollution deposited on other people, ignore disparities in asthma rates, blood lead poisoning and heart disease caused by pollution. Instead, they claim that everyone receives equal environmental protection under law, and that race and class are irrelevant despite clear evidence to the contrary while the rest of us sit idly by.

When will foresight show us that these inequities warrant attention and remediation rather than neglect and denial? Hindsight causes us to look back on past laws and practices in horror because of injustice. We naturally ask: “How could the government do that?” “Why did the majority of people allow that?” We should ask ourselves, instead, “Do I benefit from race and class inequalities that are harming others?” If the answer is yes, the lesson from Flint is clear: the majority’s indifference to laws and policies that harm others is the deeper problem.•


Carlton Waterhouse is a dean’s fellow and professor at the Indiana University Robert H. McKinney School of Law. The opinions expressed are those of the author.