Pride and Prejudice and Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, and State Exceptionalism Failed Flint, Michigan

It was just over forty years ago, shortly before the Safe Drinking Water Act was passed, that a group of mothers in the small, sleepy town of Woburn, Massachusetts realized there just may have been a connection between their children\u27s leukemia and the town\u27s water supply. They withstood the terrible smell and masked the water\u27s rancid flavor with orange juice. For months they inquired, complained, and assembled in hopes that someone in a position of authority would notice what was so obvious to them. And for months they were dismissed and even ridiculed. Turns out they were right. It took a lawsuit and years of work by the Environmental Protection Agency, epidemiologists, and lawyers to shine a light on the seriousness of the contamination, the consequences, and the need for regulatory oversight. Fast forward to 2014: a group of concerned mothers begin complaining about the taste and smell of the water in Flint, Michigan. Bringing bottles of brown water with them to assemblies in front of the town hall did little to prompt city and state officials to do anything. It took a caring pediatrician and a brave professor to wrangle city, state, and even federal officials into acknowledging the highly toxic levels of lead in the water supply. But this time, more than forty years later, it should have been different. With decades of perspective and what some say are overreaching regulations in place, the environmental disaster in Flint should not have happened. This Article explores how and why the crisis occurred, despite the safeguards created by the Safe Drinking Water Act and the Lead and Copper Rule of 1991, which were meant to prevent this kind of disaster. This Article will then argue why the current action level for lead concentrations in tap water, which requires public water systems to act to protect the public, is unsafe according to current toxicological and epidemiological data. Finally, it will discuss how the current climate of state exceptionalism and lack of federal oversight contributed to the crisis, and suggest regulatory changes to provide a much needed public safety net

Hocus Pocus: Modern-Day Manifestations of Witch Hunts

Witch hunts have never been about facts or evidence; rather they are about beliefs often fueled by fear. Witch hunts of the past persecuted the powerless – typically women or those who did not fit into “societal norms.” More recently, the term “witch hunt” has reappeared with great fervor in the political arena, used by the powerful to generate fear that serves a distinct political narrative that those in power are the true victims. Tweets, sound bites, and political speeches rife with accusations of a “witch hunt” reflect a modern usage which has served to delegitimize the historical context of the term. This Article argues that this modern use of the term “witch hunt” is a misappropriation of what has long been used to describe illegitimate hunts of marginalized groups of people, implicating roles of gender, race, and power. This misuse is happening all while subversive, carefully veiled witch hunts are occurring in cleverly disguised legislation and litigation, supported by anecdotes and “spectral” evidence, and aimed at affecting the rights of historically oppressed groups of people based on their gender and race. This Article aims to remind the reader of what a “witch hunt” looked like in colonial New England and to propose that witch hunts are still alive today – not in the political arena, but in the legal one. Law cannot stand on conspiracy theories or perversions of truth shaped to fit a narrative, fueling fear, and resulting in the need to find a scapegoat. For as we’ve seen in the Salem witch trials, without a legal system rooted in reliable evidence and based on verifiable facts, a society can crumble

Chocolate, Coca-Cola, and Fracturing Fluid: A Story of Unfettered Secrecy, Toxicology, and the Resulting Public Health Implications of Natural Gas Development

As hydraulic fracturing has become the new darling of energy production and America’s hope for energy independence, health care professionals and related organizations, like the Nobel peace prize-winning Physicians for Social Responsibility, have expressed concern over the industry’s use of the trade secret exemption when it comes to fracturing fluids. Health care professionals are voicing concerns about how the secretive nature of trade secret protections and even current legislation (or lack thereof) are stifling their ability to treat patients complaining of symptoms associated with exposure to these chemicals. Without information on what is in the fluids and at what concentrations, toxicologists, epidemiologists, and physicians alike are wondering how exactly to characterize risk and properly treat those who are complaining of exposure-related health problems. The nature of trade secret protection has always been broad and inclusive, protecting the proprietary nature of components and processes, thus allowing companies to have a competitive edge over competitors. Oil and gas companies invoke this protection, claiming that disclosure of even some of the names of the chemical components may hurt them competitively. Ironically, many companies, most notably soft drink giants, enjoy trade secret protection yet disclose the “secret ingredients” in their products. Should trade secret protection be treated as an unquestioned right that can simply be invoked even when there are far-reaching environmental and concerns about public health? In that light, this article will address the impact of the trade secret on a physician’s duty to treat patients when faced with limitations on information dissemination. This article will also explore the fundamental nature of trade secret protection and whether misuse is occurring when companies claim trade secret protection of fracturing fluid products. Finally, this article will review current regulatory loopholes in the reporting process and examine the question of whether there is an existing common law doctrine that addresses the misuse of this protection

Pride and Prejudice and Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, and State Exceptionalism Failed Flint, Michigan

It was just over forty years ago, shortly before the Safe Drinking Water Act was passed, that a group of mothers in the small, sleepy town of Woburn, Massachusetts realized there just may have been a connection between their children\u27s leukemia and the town\u27s water supply. They withstood the terrible smell and masked the water\u27s rancid flavor with orange juice. For months they inquired, complained, and assembled in hopes that someone in a position of authority would notice what was so obvious to them. And for months they were dismissed and even ridiculed. Turns out they were right. It took a lawsuit and years of work by the Environmental Protection Agency, epidemiologists, and lawyers to shine a light on the seriousness of the contamination, the consequences, and the need for regulatory oversight. Fast forward to 2014: a group of concerned mothers begin complaining about the taste and smell of the water in Flint, Michigan. Bringing bottles of brown water with them to assemblies in front of the town hall did little to prompt city and state officials to do anything. It took a caring pediatrician and a brave professor to wrangle city, state, and even federal officials into acknowledging the highly toxic levels of lead in the water supply. But this time, more than forty years later, it should have been different. With decades of perspective and what some say are overreaching regulations in place, the environmental disaster in Flint should not have happened. This Article explores how and why the crisis occurred, despite the safeguards created by the Safe Drinking Water Act and the Lead and Copper Rule of 1991, which were meant to prevent this kind of disaster. This Article will then argue why the current action level for lead concentrations in tap water, which requires public water systems to act to protect the public, is unsafe according to current toxicological and epidemiological data. Finally, it will discuss how the current climate of state exceptionalism and lack of federal oversight contributed to the crisis, and suggest regulatory changes to provide a much needed public safety net

Pride and Prejudice and Administrative Zombies: How Economic Woes, Outdated Environmental Regulations, and State Exceptionalism Failed Flint, Michigan

It was just over forty years ago, shortly before the Safe Drinking Water Act was passed, that a group of mothers in the small, sleepy town of Woburn, Massachusetts realized there just may have been a connection between their children’s leukemia and the town’s water supply. They withstood the terrible smell and masked the water’s rancid flavor with orange juice. For months, they inquired, complained, and assembled in hopes that someone in a position of authority would notice what was so obvious to them. And for months, they were dismissed and even ridiculed. Turns out, they were right. It took a lawsuit and years of work by the Environmental Protection Agency, epidemiologists, and lawyers to shine a light on the seriousness of the contamination, the consequences, and the need for regulatory oversight. Fast forward to 2014: A group of concerned mothers begin complaining about the taste and smell of the water in Flint, Michigan. Bringing bottles of brown water with them to assemblies in front of town hall did little to prompt city and state officials to do anything. It took a caring pediatrician and a brave professor to wrangle city, state, and even federal officials into acknowledging the highly toxic levels of lead in the water supply. But this time, more than forty years later, it should have been different. With decades of perspective and what some say are “overreaching” regulations in place, the environmental disaster in Flint should not have happened. This article explores how and why the crisis occurred, despite the safeguards created by the Safe Drinking Water Act and the Lead and Copper Rule of 1991, which were meant to prevent this kind of disaster. This article then argues why the current “action level” for lead concentrations in tap water, which requires public water systems to act to protect the public, is unsafe according to current toxicological and epidemiological data. Finally, this article discuss how the current climate of “state exceptionalism” and lack of federal oversight contributed to the crisis, and suggest regulatory changes to provide a much needed public safety net

Hocus Pocus: Modern-Day Manifestations of Witch Hunts

Witch hunts have never been about facts or evidence; rather they are about beliefs often fueled by fear. Witch hunts of the past persecuted the powerless – typically women or those who did not fit into “societal norms.” More recently, the term “witch hunt” has reappeared with great fervor in the political arena, used by the powerful to generate fear that serves a distinct political narrative that those in power are the true victims. Tweets, sound bites, and political speeches rife with accusations of a “witch hunt” reflect a modern usage which has served to delegitimize the historical context of the term. This Article argues that this modern use of the term “witch hunt” is a misappropriation of what has long been used to describe illegitimate hunts of marginalized groups of people, implicating roles of gender, race, and power. This misuse is happening all while subversive, carefully veiled witch hunts are occurring in cleverly disguised legislation and litigation, supported by anecdotes and “spectral” evidence, and aimed at affecting the rights of historically oppressed groups of people based on their gender and race. This Article aims to remind the reader of what a “witch hunt” looked like in colonial New England and to propose that witch hunts are still alive today – not in the political arena, but in the legal one. Law cannot stand on conspiracy theories or perversions of truth shaped to fit a narrative, fueling fear, and resulting in the need to find a scapegoat. For as we’ve seen in the Salem witch trials, without a legal system rooted in reliable evidence and based on verifiable facts, a society can crumble

The Lizard, the Scientist, & the Lawmaker: An Analysis of the Trending Fight over the Use of Science under the Endangered Species Act and How to Address It

Recently in Texas, the dunes sagebrush lizard—a tiny, little-known reptile living in the sparse brush and dunes of the oil and gas fields—sparked a heated discussion and criticism over the listing process under the Endangered Species Act (ESA). This six-year battle ended with the withdrawal of a proposed rule to list the lizard and resulted in numerous criticisms about the role and use of scientific data throughout the process. Under the ESA, the United States Fish & Wildlife Service (FWS) is required to consider the best available scientific data when deciding whether to list a species. However, there is no direct legislative history explaining this standard. Because existing scientific data on “stressors” in the environment is typically limited and inadequate, this data gap leads to uncertainty, which unquestionably leads to difficult decision making by the regulatory agencies. Although a review of past listing designations confirms that FWS is not only utilizing sound science, but more often than not, is making sound decisions based on that science, many policy makers are still criticizing the use of science in decision-making processes and are pitting science against economics. This Article advocates for a more systematic, transparent application of science in the decision-making process: a well-defined “weight of evidence” approach that will foster structured deliberations, hypothesis testing, and the necessary clarity and transparency that will benefit all parties involved