Speaker 1: A former US governor, was hit with criminal charges over
Speaker 1: his role in an environmental catastrophe. Today on Parts Pervilion,
Speaker 1: we speak with an environmental law professor about just how
Speaker 1: unusual this is, and about whether other elected officials should
Speaker 1: start getting nervous. Hello and welcome back once again to
Speaker 1: Parts Pavilion, the environmental podcast from Bloomberg Law. I'm your host,
Speaker 1: David Schultz. It's been five years, one month, and five
Speaker 1: days since the mayor of Flint, Michigan, declared a state
Speaker 1: of emergency. That was when most people outside of Flint
Speaker 1: first realized something had gone very, very wrong with the
Speaker 1: city's drinking water. Of course, for the roughly one hundred
Speaker 1: thousand people who lived in Flint, the crisis began much earlier, when,
Speaker 1: in an attempt to save money, the city switched its
Speaker 1: water source to the heavily polluted Flint River without preparing
Speaker 1: or treating its aging network of lead pipes. As has
Speaker 1: been documented in voluminous court filings and scientific except since then,
Speaker 1: this polluted water eroded the untreated lead pipes and exposed
Speaker 1: the entire city, including its children, to extreme amounts of
Speaker 1: lead and other poisonous contaminants. Several lower level. People who
Speaker 1: worked for the city and the state were subsequently hit
Speaker 1: with criminal charges, But more than five years after the
Speaker 1: crisis made headlines, prosecutors are now aiming about as high
Speaker 1: as they could possibly go. Last week, Michigan's Attorney general
Speaker 1: filed two misdemeanor charges of wilful neglective duty against Rick Snyder,
Speaker 1: the governor of Michigan during the lead up to and
Speaker 1: the aftermath of the Flint crisis. Snyder is fighting the charges,
Speaker 1: which his attorneys argue are quote wholly without merit. But
Speaker 1: it's worth noting just how rare this all is. Government
Speaker 1: employees and especially elected officials, are rarely held personally liable,
Speaker 1: littleone criminally liable for the decisions they make on the job.
Speaker 1: That's because of a legal principle called sovereign immunity, and
Speaker 1: it comes into play a lot after a big environmental disaster,
Speaker 1: when the victims are trying to use the courts to
Speaker 1: get accountability. Could the Flint crisis and it's aftermath be
Speaker 1: a sign that sovereign immunity is changing. I pose that
Speaker 1: question to Bob Percival, a law professor at the University
Speaker 1: of Maryland who heads up its environmental Law program. Percival
Speaker 1: says he doesn't actually think that sovereign immunity will change
Speaker 1: that much as a result of the Flint crisis, and
Speaker 1: he says, depending on the evidence that comes out, Michigan
Speaker 1: prosecutors may actually have a pretty tough time trying to
Speaker 1: get a conviction against Snyder. Well, it's very unusual for
Speaker 1: criminal charges to be brought against government officials, but then again,
Speaker 1: the Flint situation was so outrageous that I thought that
Speaker 1: if they had the evidence to back up such criminal charges,
Speaker 1: it would be appropriate to bring them. So I think
Speaker 1: the case will depend a lot on what was on
Speaker 1: the governor's cell phone when they took it, because otherwise
Speaker 1: it's very hard to prove cases like this, because it
Speaker 1: depends upon what the governor knew, when he knew it,
Speaker 1: and how he acted in response to information, did they
Speaker 1: try to cover it up? And that presumably will all
Speaker 1: come out in court. Right. I've heard some people say
Speaker 1: that this is going to be kind of a difficult
Speaker 1: case for the prosecutors to make, precisely because you mentioned that,
Speaker 1: you know, it's very rare that elected officials get charged
Speaker 1: with environmental crimes. Do you agree with that or do
Speaker 1: you think that the prosecutors will be able to convict Well, again,
Speaker 1: I think it will all depend on the evidence that
Speaker 1: they have. If they're able to show that he knew
Speaker 1: that people were being poisoned and that this was a
Speaker 1: serious health problem, and instead of acting to alleviate the problem,
Speaker 1: he just tried to cover it up, then it's more
Speaker 1: likely that he could be convicted. But then again, the
Speaker 1: charge is wilful neglect of duty, so you have to
Speaker 1: show more than just all he screwed up. But if
Speaker 1: you can prove deliberate attempts to cover it up and
Speaker 1: not taking any actions to try to alleviate the harm
Speaker 1: to public health, then it's more likely they'd be able
Speaker 1: to convict him. Let's take a step back and talk
Speaker 1: about the overall concept of sovereign immunity. I see a
Speaker 1: lot of tourqu cases against public officials get dismissed for
Speaker 1: this reason. Can you explain a little bit about why
Speaker 1: that is and how sovereign immunity works when it comes
Speaker 1: to environmental cases and environmental tourts. Well, Sovereign and immunity
Speaker 1: is sort of a default doctrine. It's based on an
Speaker 1: ancient concept that we inherited from British common law, the
Speaker 1: notion that individuals could not soothe the King and God
Speaker 1: entities then kind of inherited that immunity. But it's always
Speaker 1: subject to being waived if legislation is passed. And in
Speaker 1: most of the federal environmental statutes, Congress has actually regulated
Speaker 1: federal entities when they're involved in pollution situations and allow
Speaker 1: them to be sued if they violate the law. And
Speaker 1: under the federal environmental laws, criminal liability is imposed whenever
Speaker 1: there's an intentional violation of the law. Now it's a
Speaker 1: different situation though, when it's not the state who's actively
Speaker 1: violating some regulation, but it's state officials who are supervising
Speaker 1: what the government does to protect people. And yet even then,
Speaker 1: if the actions by the government officials are so outrageous
Speaker 1: and so willful in neglecting to do what everyone would
Speaker 1: agree would be their duty to protect the public, then
Speaker 1: in those circumstances, criminal liability can be imposed, right, And
Speaker 1: I think that's come into play in the Flint case
Speaker 1: and that we've seen I would say roughly half a
Speaker 1: dozen maybe more elected officials or public officials who were
Speaker 1: serving at the city level or at the state level
Speaker 1: face criminal charges or at least be held personally liable
Speaker 1: for what happened in Flint. And I know that some
Speaker 1: of those questions about waiving sovereign immunity went all the
Speaker 1: way to the Supreme Court. Why is the Flint case
Speaker 1: different in that these officials did not were not able
Speaker 1: to claim sovereign immunity here Well, here you had lots
Speaker 1: of evidence of really gross misconduct that they knew about
Speaker 1: the health harm and not only did nothing to alleviate it,
Speaker 1: but actually tried to cover it up, lied about it,
Speaker 1: and in those circumstances that those actions are so outrageous
Speaker 1: that the courts that have looked at this were not
Speaker 1: doing the usual bending over backwards to protect government officials
Speaker 1: by saying, well, your qualified immunity should protect you, because
Speaker 1: we don't want to be deterring people from serving in
Speaker 1: government and always second guessing what they do. Once you
Speaker 1: reach a certain point where what's happening is so outrageous,
Speaker 1: then they're not going to find that they're immune from
Speaker 1: liability even under the criminal laws. So let's talk about
Speaker 1: how this could play out in the future. And you
Speaker 1: kind of alluded to this earlier, but I wonder if
Speaker 1: the Flint case was so unusual and so egregious that
Speaker 1: it won't really have any bearing on future environmental catastrophes,
Speaker 1: or whether we could see this case used as a
Speaker 1: model when there's you know, an oil spill or you know,
Speaker 1: some kind of really awful environmental disaster, where we could
Speaker 1: see you know, mayors or governors or city council members
Speaker 1: held personally liable in the future based on what happened
Speaker 1: with Flint. Well, I would hope that what comes out
Speaker 1: of Flint would be something that would be a warning
Speaker 1: that government officials have to be proactive as soon as
Speaker 1: they have evidence that harm is occurring when it comes
Speaker 1: to the oil spills. For example, the federal government did
Speaker 1: hold BP criminally liable for the oil spill in the Gulf,
Speaker 1: but it was the corporation itself that was held criminally
Speaker 1: liable and not the individual executives. The only individuals who
Speaker 1: were criminally charged as a result of the BP spill
Speaker 1: were some workers on the oil rigs who allegedly had
Speaker 1: deleted text messages and that was considered destroying evidence. So
Speaker 1: while there was a very large fine against the corporation
Speaker 1: that was imposed criminally and the significance of that is
Speaker 1: they can't deduct that from their taxes as they could
Speaker 1: do with the normal civil penalty. And then I mean
Speaker 1: the federal oversight officials who were supposed to be checking
Speaker 1: to make sure everything was okay at the site, at
Speaker 1: the Deepwater Horizon site. None of them were held criminally liable, right, No,
Speaker 1: And you know, there, I think their activities would be
Speaker 1: considered perhaps negligent, but it wasn't the kind of situation
Speaker 1: where they, you know, knew something and they knew that
Speaker 1: required action and then tried to cover it up. And
Speaker 1: I think that's one of the reasons why the oil
Speaker 1: rig workers were charged criminally, because by deleting the text messages,
Speaker 1: they were trying to cover up what was known at
Speaker 1: the time the spill was about to happen. So it
Speaker 1: sounds like basically what you're saying is that, you know,
Speaker 1: the bar for public officials being held liable for environmental
Speaker 1: disasters is still really high. It hasn't gone down, you know,
Speaker 1: or it hasn't moved since the flint crisis. It's still
Speaker 1: as high as it ever was in I you know,
Speaker 1: understanding you correctly, Yeah, I think that that's true, and
Speaker 1: yet I would think that the mere fact that these
Speaker 1: charges are being brought, even if the governors acquitted, will
Speaker 1: have a deturnent effect to make sure that public officials
Speaker 1: in the future respond as quickly as possible and not
Speaker 1: try to cover up instances of where they knew that
Speaker 1: people were being harmed and deliberately decided not to take
Speaker 1: actions that it was possible for them to have taken. Yeah,
Speaker 1: because that's another thing I was thinking about, is what
Speaker 1: if they're let's say there's a you know, city council
Speaker 1: meeting and there's a mayor gets some advice from one
Speaker 1: of his or her advisors saying, you know, hey, we
Speaker 1: need to spend more money on this wastewater treatment plan
Speaker 1: or we could have a huge environmental disaster, and the
Speaker 1: mayor says, well, you know, I'd like to do that,
Speaker 1: but I also want to spend money on schools, so
Speaker 1: I'm going to choose to you know, budget those money
Speaker 1: for the school system. And then there's a catastrophe. Could
Speaker 1: that be a situation where you could argue that that
Speaker 1: official should have known or did know that they were,
Speaker 1: you know, risking a disaster that then came to happen. Well,
Speaker 1: that's certainly could give rise to negligence liability. I think
Speaker 1: more likely civil liability than criminal liability, which would require
Speaker 1: really reckless, willful gross misconduct. I see. Okay, So just
Speaker 1: to kind of wrap it up overall, it sounds like
Speaker 1: it's that classic sort of Washington kind of thing where
Speaker 1: you know, what did you know and when did you
Speaker 1: know it? You know, if you can't get held criminally
Speaker 1: liable for making the wrong decision on an environmental issue,
Speaker 1: but you can get held criminally liable if you made
Speaker 1: the wrong decision and then cover up the fact that
Speaker 1: you made the wrong decision. I guess is that how
Speaker 1: it is well, especially in a situation where the wrong
Speaker 1: decision was not to take action that easily could have
Speaker 1: been taken to alleviate the problem. That's it for today's
Speaker 1: episode of Parts Provillion. If you want more environmental news,
Speaker 1: check us out on Twitter. We use the handle at
Speaker 1: environment just that at environment nothing else. I'm at David B.
Speaker 1: Schultz if you want to chat with me about anything
Speaker 1: that's on your mind. Today's episode of Parts Rebellion was
Speaker 1: produced by myself and Josh Block. Parts Pavilion was created
Speaker 1: by Jessica Coombs and Rachel Daegel. The music for today's
Speaker 1: episode is a message by Jazar and the quest by
Speaker 1: Tom Hillock and Nicholas Boskovic, who used into a creative
Speaker 1: comments license. Thank you all so much for listening. This
Speaker 1: is Adam Allington and I'm here to announce a new
Speaker 1: season of uncommon Law, a narrative podcast series from Bloomberg Law.
Speaker 1: My co host and I will speak with African American
Speaker 1: attorneys and hear their perspectives on how big law is
Speaker 1: for in some cases, isn't adapting to become more diverse
Speaker 1: and inclusive. It's not fair, But what can be better
Speaker 1: than being on the front lines of helping to make
Speaker 1: this country better for all of us? If not us, who,
Speaker 1: if not now win? Just search for Uncommon Law wherever
Speaker 1: you get your podcasts.