Lessons from Flint

by Ryan Stoa, Jurist

When I teach Water Resources Law to my students, I often start each semester by juxtaposing two competing conceptualizations: water as a private commodity vs. water as a human right. The contrast demonstrates the diversity in approaches to water management, while foreshadowing the public-private tensions that permeate contemporary water law debates. Some students are attracted by the promises of privatization, including capital investments to upgrade infrastructure and the efficiencies of allowing market forces to allocate water where it is most valued. Other students push back, noting the fundamental human need for water as a justification for holding water resources in common, while citing the negative externalities that frustrate attempts to monetize water accurately.

Both viewpoints are playing out in the wake of the Flint, Michigan, water crisis. Last month I wrote about the rhetoric following the crisis, noting that many critics were echoing the human right to water perspective. One Michigan state representative even proposed a bill that would declare water to be a human right. To many observers, the crisis was caused by water managers holding financial considerations above public health and environmental justice. Indeed, Flint’s decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was largely a financial one, as the move was projected to save the city $19 million over eight years. When the Flint city council voted to return to Detroit water, the city’s emergency manager opposed the move on financial grounds. To many, water cannot be managed with such financial tunnel-vision, and a human right to water might rebalance water managers’ priorities.

But in the last several weeks, another view has (re)emerged. Some have called for further privatization of water resources. To these critics, the Flint water crisis is a crisis of public governance, one that may have been avoided had a private utility been in charge. A private utility would still have received government oversight, while avoiding the messy political battles necessary to receive infrastructural investments. A private utility, furthermore, would not have enjoyed sovereign immunity, providing an incentive to avoid litigation arising from water contamination.