Flint of Outrage

58 Pages Posted: 4 Mar 2017 Last revised: 22 Dec 2017

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Ellen Brooks

New York University (NYU), School of Law, Students

Date Written: December 2017


Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits.

Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked the conscience.” The litigants also raised equal protection arguments that government targeted the community based on race and poverty.

This Article makes three claims. First, it asserts that fundamental rights and equal protection arguments that challenge the denial of uncontaminated water face the serious, perhaps insurmountable obstacles that plague any call for new or expanded constitutional rights. Constitutional law is clunky and often formalistic. Doctrine and principles of judicial restraint here militate against categorically elevated judicial scrutiny—which we call thick rights strategies—of these and similar public officials’ actions. Moreover, the thick rights strategies may entail liability questions that are not—as yet—judicially manageable.

Second, it asserts that shocks the conscience arguments offer a viable alternative to a thick rights strategy. Properly understood, this test enforces a liberty baseline, even absent a fundamental right or suspect classification. This thin rights test is properly reserved for worst-case scenarios, not for garden-variety government blunders. Flint qualified.

Third, it argues that this constitutional baseline liberty may apply to all environmental cases in which shocking government conduct elides established fundamental rights or suspect classification categories. Invoking it would not open judicial floodgates or risk undue judicial intrusion into regulatory matters better left to other government branches. It would maintain a difficult-to-flunk but critical liberty limit on extreme official disregard for human well-being and environmental justice. It also would provide space for the development of a potential fundamental right to uncontaminated water while allowing public airing of the serious harms to life, the failure of government processes, the citizen powerlessness, and how grave environmental harms threaten multiple communities but impose their most horrific costs on the most vulnerable people. The Flint tragedy offers a constitutional cautionary tale that should be noted and heeded.

"The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice." 1

1 Flint Water Advisory Task Force, Final Report 1 (2016), https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805.

Keywords: environmental law, water law, constitutional law, rational basis, environmental justice, equal protection, due process, fundamental rights

Suggested Citation

Massaro, Toni Marie and Brooks, Ellen, Flint of Outrage (December 2017). 93 Notre Dame Law Review 155 (2017), Arizona Legal Studies Discussion Paper No. 17-03, Available at SSRN: https://ssrn.com/abstract=2927200

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

Ellen Brooks

New York University (NYU), School of Law, Students ( email )

New York, NY
United States

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