The ongoing crisis in Flint, Michigan is a spectacular and profoundly troubling environmental protection failure. It is also a monumental failure of governance and public administration. Flint’s plight is only the most recent, dramatic and appalling illustration of an endemic weakness in the U.S. environmental regulatory regime: the difficulty of government regulating government.
Environmental protection is typically thought of as a matter of government regulation of individuals and privately-owned firms. But in the United States, tens of thousands of local, state and federal government agencies are subject to the same regulation as their private sector counterparts. Drinking water is perhaps the most familiar example: about 85 percent of Americans receive their drinking water service from a local government. The U.S. Safe Drinking Water Act (SDWA) obliges those government utilities to meet the same regulatory requirements as private, investor-owned utilities.
The trouble is that governments face incentives and constraints that make them more difficult to regulate than private firms. Unlike businesses, governments have contested, ambiguous missions and often are politically constrained from taking steps necessary for compliance. Public managers balance regulatory mandates against competing priorities like equity, affordability, and political responsiveness. Public officials must secure political support for the capital investments and operating expenditures required to meet environmental performance standards. Regulators are often legally limited in the penalties that they can impose on governments, and there is evidence that courts impose lower penalties on government violators. Consequently, the regulator’s usual array of enforcement instruments—fines, fees, and licensure—may be potent enough to alter a private firm’s behavior, but less effective when the regulated entity is a government.
American federalism complicates matters further. Like other environmental laws, the SDWA relies on federal-state cooperation for its implementation. The federal Environmental Protection Agency (EPA) sets SDWA water quality standards, but in most states monitoring and enforcement is handled by state government agencies, and compliance ultimately is up to the local governments that operate utilities. States have varying capacity for enforcement of environmental laws, and local governments have varying capacity for compliance with them. Moreover, state and local politics can override environmental protection when governments regulate governments. EPA has little direct leverage over states that fail to enforce environmental rules; in turn, states often have limited will or ability to coerce local governments that violate them.
The situation in Flint is a terrible case in point. A financial crisis prompted an effective state takeover of the local government, including its drinking water system. The state’s emergency manager for Flint—appointed by Gov. Rick Snyder (R)—had effective authority over every policy in the city, and a single-minded focus on fiscal austerity. When problems with Flint’s drinking water began to emerge, the Michigan Department of Environmental Quality (DEQ)—which also reports to Gov. Snyder—had little incentive to prioritize the issue, and every incentive to ignore it. The unraveling paper trail reveals activists, researchers, and Flint-area officials trying to prompt a response from the governor’s office. Stripped of the authority to govern their own city, Flint’s poor, black, and Democratic-voting majority held little sway with the Republican state administration, despite growing evidence of lead contamination in Flint’s drinking water.
Records also reveal the Obama administration’s regional EPA director and Michigan DEQ administrators debating the extent of each other’s authority and responsibility. The picture that emerges is not simply one of incompetence or evil, so much as federal, state, and local administrators responding rationally—and callously—to the incentives and constraints that our system of environmental regulation creates. Environmental compliance is costly, and neither Flint’s Emergency Manager, nor the state of Michigan, nor the EPA had the will, capacity, or appetite to address the problem.
The losers in this game of interagency politics were, of course, the people of Flint.
The confluence of events in Flint that led to such a disastrous outcome is unique, but similar dynamics apply across multiple areas of environmental protection and everywhere in the United States. Hundreds of SDWA health violations occur every year, and our ongoing research finds that government water utilities are, on average, more likely to violate the SDWA and less likely to be penalized for violations than comparable private utilities. Clean Air Act compliance and enforcement records reveal a similar pattern.
Because of the ubiquity and diversity of governments regulating governments, there is not a single, silver bullet solution. In some cases, privatization may be a viable and desirable alternative, in others government agencies may require an infusion of capital and human resources. Any comprehensive solution requires changing the incentives for compliance and enforcement.
When governments are charged with regulating other governments, ensuring public health becomes a matter of interagency politics: the ultimate effect of regulatory policy turns not on the letter of the law, but rather on the regulated government’s political costs of compliance, and the regulator’s political costs of penalizing another government agency. In Flint those political calculations contributed to a public health disaster. But environmental regulations across the U.S. are subject to similar calculations when governments regulate governments. Flint isn’t alone.
Konisky is associate professor in the School of Public and Environmental Affairs at Indiana University. Teodoro is Associate Professor of Political Science and Research fellow in the Institute for Science, Technology and Public Policy at Texas A&M University.