Good News, Bad News

A recent article by Issi Romem points toward the importance of historical perspective in urban policy arguments. By which I mean that not only are there historical patterns to the creation of exurban sprawl and its attendant social pathologies, but a useful understanding of how to reverse these effects requires policymakers (starting with the President!) to recognize that the political and cultural contexts of sprawl matter as much as land economics (indeed, are intrinsic to land economics). Romem offers a summary of key takeways that is pretty clear:

  • The link between housing production and outward expansion is unmistakable: cities that expand more produce proportionally more new housing.

  • Throughout the country, housing production is skewed towards low density areas.

  • Densification has slowed down across the board, and especially in expensive cities, undermining their ability to compensate for less outward expansion.

  • Unless they enact fundamental changes that allow for substantially more densification, cities confronting growth pressure face a tradeoff between accommodating growth through outward expansion, or accepting the social implications of failing to build enough new housing.

The good news is that articles like this point to the phenomenon beginning to be treated less as an artifact of “choice” and more as a product of a sequence of political decisions that have left the majority of Americans with suboptimal housing situations, on top of a historical support for racial and economic segregation and drastically different communities of opportunity.

To be sure, though, Romem looks first to the market:

Why has the pace of densification decreased? One reason is national in scope: despite some fluctuations, the total amount of new housing built each decade in the U.S. has remained fairly constant since the 1950s, but because of urban expansion the area absorbing it has grown much larger. Thus, new housing is spread more thinly, which amounts to less densification. Another way of putting it is that the demand for new housing – or growth pressure – per unit of developed land is less intense than it used to be.

But, a better way of putting it might be that the costs in terms of time, driving miles, and traffic-related social alienation have been gradually shifted onto home buyers and that costs in terms of infrastructure expansion have been shifted onto taxpayers. Despite what sprawl apologists argue (for instance, Wendell Cox at Joel Kotkin’s New Geography embraces a futility thesis critique of “forced density”lateral growth controls), this is not a case of housing priorities being set by rational consumers in a free market, or of liberal-urbanist social engineers tilting in futility against sprawl that is both inevitable and beneficial. Rather, a set of politically motivated and administratively maintained subsidies and incentives to banks, builders, and (in a more conflicted sense) buyers has created sprawl (see Dolores Hayden’s classic Field Guide to start), without the consent of the majority of the people whose daily lives are affected by it. Does not “forced” apply as well to a housing market that imposes a hundred driving miles a day on a home buyer? The equity effects of this form of development are severe; though there are exceptions, mobility in highly decentralized metro areas is a severe impediment to economic opportunity for the poor.

Elsewhere, Romem acknowledges the limits of the market as an explanatory scheme for sprawl, noting that in a real-world setting, markets are affected by choices about resource allocation, and whatever the potential preferences of free agents in the marketplace, the claims made on limited transportation and infrastructure funds by exurban highway expansion are at odds with the expansion of mass transit that is necessary to prevent people from simply bringing their cars into denser developments.

It would also require a leap of faith that in the chicken-and-egg conundrum of density and transportation infrastructure, density can come first.

It’s welcome to see discussions of housing that dig beneath the superficially cheaper houses for sale in sprawling metro areas to consider costs to people, the environment, and the quality of social life.

The bad news stems from Romem’s fourth bullet point: the political (and I’m talking about institutional and cultural forms here) difficulty of enacting densification reforms in already-urbanized areas. While there have been a spate of accounts touting The End of the Suburbs as a seeming market-based response–a back-to-the-city movement based on millennials’ distaste for buying and sitting in cars and Generation X’s reaching an upper limit for commuting endurance–is at best a partial solution, because urban housing is increasing in desirability without a concomitant increase in supply because of land use regulations, cultural norms, and uncoordinated planning and development. The prospect of car-free or car-lite living may be attractive, but as a Brookings Institution report from 2014 indicated, the reduction of car commuting by young workers, while significant, represents a small reduction (workers aged 25-54 showed a 0.9 percent reduction in car commuting between 2007 and 2013).

Romem’s conclusions are intriguing, but there are significant political-economic impediments to achieving them. As Richard Florida notes, Romem describes aptly a “trilemma” of development imperatives, in which cities and metros must balance three objectives, where at least one necessarily suffers.

But this view, as apt a description of the forward-looking policy problems of density and affordability as it might be, leaves out the politics of the trilemma, and the ways in which policies that create sprawl are less a sacrifice of the desire to prevent sprawl for the sake of affordability and growth, but an affirmation of the priorities of political interest groups (real estate developers, home builders, automobile manufacturers, oil companies) in a “sprawl lobby.” Where neither Florida nor Romem quite go is to the conclusion that making density more economic effectively means making sprawl more expensive. We’ll keep waiting for that, I guess.


Of course, there is a role to play for ideas and values in the political arena, and perhaps this seemingly impossible political shift could be enabled by a powerful normative shift around lifestyle. Romem calls, among other things, for an effort to normalize multi-family housing as a child-rearing environment. Again, thinking historically, multi-family, cooperative, and other housing models have been envisioned as not only acceptable, but preferable to the domestic isolation of the single-family house. The problem is, as Dolores Hayden has written, that while the suburban single-family house was a spatial fix for the needs of the real estate, construction, and banking interests of mid-century America as much as those of working families, it met many of those families’ material and emotional needs well enough to become established, and to make alternatives appear impossible.

I’ve shown this 1957 industrial film In the Suburbs to my students for several years in the past, and it always provokes interesting responses. Lizabeth Cohen wrote about it in A Consumer’s Republic, suggesting that it heralded a transformative moment in the public embrace of consumerism. I’m a little less sure of that. The film is only incidentally touting consumer goods; it’s really selling Redbook magazine as a marketing tool to tap the wallets of “young adults” moving to the suburbs. I’ve always been struck by the amount of cultural work needed to normalize what the film subtextually portrays as a new and bewildering lifestyle.

There’s no reason to think that density can’t be as effectively sold, if there is the will to do it.

Trumpism’s Urban Roots

It’s tempting, though inaccurate, to look to articles like this weekend’s Washington Post piece following Jim Cooley, a downwardly-mobile former trucker on disability who packs an AR-15 to the local Georgia Wal-Mart while his wife uses Facebook to alert the local sheriff that his intentions are benign and unworthy of forcible response (illustrated thusly, a bit on the nose),


Photo Jabin Botsford, Washington Post

and conclude that Trumpism is a tide that laps the edges of metropolitan areas, but properly belongs to some here-be-dragons space off the map.

While this perception is largely based on the use of “non-college educated” as a shoddy statistical proxy for “working class” and ignores the higher-than-average incomes of Trump supporters, as well as their ample (if, perhaps, electorally insufficient) presence in American suburbs, it’s also worth noting that the key professional basis for Trump’s claims to the presidency (whatever their merit may be) is his career as a real estate developer. And, it’s difficult to avoid the fact that that career would be nothing without the regime of tax abatements and incentives that have characterized post-industrial urban governance in New York City and elsewhere.

Charles Bagli has that story in the New York Times. The long and short? Trump’s New York properties were built using tax abatement programs that lowered costs to Trump during development and shielded buyers of luxury condos from the full tax rate, allowing Trump to charge (and receive) higher prices to make more immediate profits. As Bagli writes, Trump’s Grand Hyatt hotel, which opened in 1980,

set the pattern for Mr. Trump’s New York career: He used his father’s, and, later, his own, extensive political connections, and relied on a huge amount of assistance from the government and taxpayers in the form of tax breaks, grants and incentives to benefit the 15 buildings at the core of his Manhattan real estate empire.

Since then, Mr. Trump has reaped at least $885 million in tax breaks, grants and other subsidies for luxury apartments, hotels and office buildings in New York, according to city tax, housing and finance records.

As a product of public subsidies that have created luxury for a privileged elite, starved the public sector, and stinted on obligations to provide affordable and integrated housing, while cloaking themselves in the rhetoric of competitive enterprise, Trump’s empire reflects the trajectory of urban America, uncomfortable though it may be to recognize.

Cities Versus States

I ran across this piece by Abby Rapoport on Politico (which sponsors some good long-form investigations when it’s not playing DC Gossip Rag), by way of Erik Loomis at Lawyers, Guns and Money. It’s a good analysis of the significance of the conflict between state legislatures and municipal governments, particularly as the former have been gerrymandered to include more seats where Republican primaries decide who’s elected.

Since I’ve studied and written about this issue in some depth, I would point out that this is one of the best popular accounts of the history of preemption and the legal status of municipal power I’ve read. Rapoport gets into the technicalities of municipal home rule, gets quotes from two of the leading academic legal scholars on the subject, and explains why the subject, which even many civically engaged Americans may not understand, is critically important for democracy, by letting the local activists whose work has been preempted by state governments in Texas and elsewhere tell their stories.

What’s particularly important is Rapoport’s summary of the distinction between “minimum” preemption, where state governments establish minimum levels of regulatory or other action that city governments must meet, and “maximum” preemption, where state governments actively prohibit local governments from taking action. Many critics accurately note that the American Legislative Exchange Council (ALEC) is an incubator for maximum preemption bills that specifically target corporate or social conservative boogeymen like local fracking bans, living wage laws, and anti-discrimination laws. What I hadn’t recognized before reading this account was that the strategy of maximum preemption actually goes back to the lobbying efforts of the tobacco industry:

The strategic use of maximum preemption laws dates back to the 1980s, when localities began passing smoking bans and smoke-free requirements. As court documents later revealed, R.J. Reynolds began promoting preemption because, in its own words, “state laws which preempt local anti-tobacco ordinances are the most effective means to counter local challenges.” Although further grim research findings eventually dealt the tobacco industry’s campaign mortal blows, other groups learned from its efforts. The National Rifle Association used similar tactics in the 1990s when concerns about crime prompted local gun regulations; 43 states now have some form of maximum preemption preventing localities from passing additional gun regulations on top of state law.

Which makes sense in a head-to-desk sort of way. The tobacco industry pioneered many of the denialist and doubt-seeding tactics thathave proven useful to thwart climate change action, ignore the need for gun control, and slow environmental and consumer safety laws (Naomi Oreskes and Erik Conway describe it in Merchants of Doubt. If you’re really lazy about reading, there’s now a film).

As Americans (rightly) pay attention to the presidential election, it’s important to remember that the battles that define what kind of society we live in will be fought closer to home, in the space between state and local governments. Which space is, sadly filled with lobbyists and hacks operating largely without scrutiny because the state houses are actually far less visible to the typical person than either the Capitol or City Hall.

Loomis offers a good summary of the federalism-of-convenience for the right that I may as well quote here, since I’d be saying the same thing in different words:

There’s a very specific reason why conservatives fetishize state government, even to the point of calling for the repeal of the Seventeenth Amendment. All the talk about devolution that came out of the 90s stops right at the state capitol. It’s not about principle. It’s about conservative control. The federal government is too big for corporations or movement conservatives to easily control. Cities are too small. States are just right. State legislators can be bought off for incredibly small amounts of campaign donations. So making the federal government powerless, unless it wants to do corporate bidding, and making the cities powerless is part the conservative game to maintain power. And it’s been that way since at least the 1930s, when corporations complained about federal control and wanted power to reside at the state level. That’s what these wars on liberal cities are about in red states. Some of these cases, like the Denton fracking ban or Austin’s rejection of Uber, are about corporate control, others like HB 2 in North Carolina, are not. But for each type of conservative group, the state is where they see power residing precisely because that’s where it’s easiest for them to control that power.

Local Voting Rights?

I’ve written before about the ways that metropolitan fragmentation affects not only the ability of citizens to cast ballots, but on the effects of those votes. Regarding metro Atlanta, I’ve argued that the formation of affluent and majority-white suburbs in north Fulton County has both removed significant resources from a countywide public where voters of color hold a slight majority and denied those voters the ability to influence the decision to form cities. The dismissal of the voting rights suit Lowery v. Deal in 2013 (which I wrote about in a study of metropolitan fragmentation and contemporary racism in Atlanta) closed the door on that line of argument, but the question of voting rights within the nested jurisdictions of states, counties, and localities, and the effects of those geographies on urban democracy, looks to become even more significant in coming years as states like Michigan (emergency management) and North Carolina (state pre-emption of local civil rights ordinances) allow state voters to override the will of locals–particularly when race, class, and partisan identifications separate an urban constituency from the rest of the state (this article by Campbell Robertson and Richard Fausset about the perilous position of gays and lesbians and social liberals in southern cities is a great example).

In Citylab, Brentin Mock points out some of the mental gymnastics required for a federal judge to accept the State of Michigan’s argument that its emergency manager law does not violate the Voting Rights Act. In essence, that argument is that as long as Flint residents have the ability to cast ballots for their preferred municipal officeholders, the nullification of those officeholders’ power by state voters is immaterial.

Public Act 436 transfers all governing powers from mayors and city councils to an appointed emergency manager for cities that Michigan has determined to be in financial crisis. This effectively erases residents’ voting rights in those cities, the lawsuit argued, since the politicians who residents elected to run the city no longer have any authority. A U.S. District Court disagreed, however, in its November 2014 ruling. Judge George Caram Steeh wrote that there was nothing wrong with Michigan replacing an elected mayor in a city like Flint with an un-elected, state-appointed custodian because city residents have no real voting rights in this manner. From Steeh’s order:

Public Act 436 seeks to put local governments on better financial footing. It does this by appointing an [emergency manager] in jurisdictions where the Governor and State Treasurer have determined that the local government was experiencing a financial emergency. The Act does not take away a fundamental right to vote, because such a right has never been recognized by the courts.

What Mock tartly points out is, that if this ruling stands, it would mean that

If Michigan’s argument holds up—that city residents have no such right—then that means the state could appoint the cast of Saturday Night Live in charge of a city. And the state would be legally covered in doing so as long as it still allows people to vote for the officials who they actually want in office—even if those elected officials would have no governing power whatsoever and would have to defer to the SNL cast.

The initial ruling in the case is under appeal, and seems headed for rehearing. Unfortunately for residents of Michigan cities with significant populations of poor minorities (52 percent of Black Michiganders have lived under emergency management, versus two percent of whites), the Flint water crisis, which has demonstrated the negligence and indifference of state authorities, constitutes evidence that emerged after the filing of the original lawsuit. It should be technically inadmissible in court, though Mock notes that it would be difficult to imagine the events in Flint not influencing a judgment.

What is more unfortunate is that the lower court’s judgment is well in line with Dillon’s Rule, the 1872 doctrine that municipalities are “creatures of the state,” without independent constitutional status and subject to limits on their operations determined by the state governments that created them. I’ve written (an award-winning article!) about the ways that this state-city conflict impacts democracy in the age of austerity, and how today’s city-state conflicts reflect a century-old conflict, expressed in urban reformers’ demands for home rule powers to deal with the stresses of industrialization, immigration, and growth.

It’s Dillon’s Rule that constructs municipal voting rights as a category apart from, for example, voting rights at the state level. Per Mock’s summary of the plaintiff’s appeal, Michigan’s policies “dilute and debase” the votes of local voters under emergency management in comparison to residents of other municipalities in the state, who can vote to govern their own communities and those under emergency management through the election of the state’s Governor. Michigan’s response (per Mock)

doubles down on the notion that city residents have no established voting rights when it comes to local elections. It also reinforces the idea that Charney referenced: that the right to vote only means you have the right to physically cast a ballot, nothing more and nothing less. Reads the brief:

Here, Plaintiffs are still free to vote in federal and state elections. And they offer no adequate support for the proposition that the right to vote in local elections, once extended, becomes a fundamental right as opposed to simply a right to participate on equal footing. …Nor do Plaintiffs’ cited cases offer support for a recognized right to participate in local political processes, even where the local unit is a legislative body.

Plaintiffs’ alleged injury really rests on the fact that the local government elected officials may not (at least temporarily) perform the duties of their elected office while under emergency management. This alleged injury is not a recognized violation of the right to vote.

Before the Roberts Court’s Shelby County decision, when the United States had a functioning Voting Rights Act, the political work of making ballots cast meaningless was known as vote dilution. When it was practiced by a municipal government in creating its own legislative districts, it could be prosecuted (although, as with most voting rights jurisprudence, the application of strict scrutiny doctrines have been used, as Heather Gerken writes in Harvard Law Review, to limit the use of racial statistics for the purposes of ensuring minority empowerment). It’s a situation unique to the structure of American federalism that similar work can be performed by the imposition of a state government onto a city with impunity.

It’s worth revisiting a quote from the legal scholar Gerald Frug, who wrote in City Making: Building Communities Without Building Walls that

A city is the only collective body in America that cannot do something simply because it decides to do it. Instead, under American law, cities have power only if state governments authorize them to act.

Normalizing this proposition by extension means that the residents of cities can’t expect to exercise normally protected rights if that exercise conflicts with the prerogatives of state governments (and I’d be remiss in not pointing out the great influence of Frug’s scholarship on my work, notably his attention to the ways that the relative powerlessness of cities can reinforce racial and class inequalities in metropolitan America).

An irony of Michigan’s insistence on disciplining the governments (and indeed the voters) of cities like Flint and Detroit is that the seizure of power that emergency management represents is ultimately contrary to the stated goal of ensuring responsible local government. As Frug and David Barron write in City Bound: How States Stifle Urban Innovation,

Cities can retain their ability to enable people to learn the skills of self-government only if they are given sufficient power to make decisions that have tangible consequences. (49)

I’d suspect, of course, that beneath the rhetoric of responsible government, emergency management and state austerity regimes have little intention of allowing such power in the future.

Perlstein on Chicago School Grifters

This piece by Rick Perlstein at Jacobin is a fantastic exegesis of the dense and incestuous network of non-profits, for-profits, and mayoral appointees that have spent the last two decades preparing to essentially privatize Chicago’s public schools. I had known that Illinois’ austerian Republican Governor Bruce Rauner gave current Chicago Mayor Rahm Emanuel his start in investment banking between Congress and City Hall. I hadn’t known that Rauner was a member of an education committee of the Chicago Commerce Club which, ignoring reports by local universities that charter schools did not outperform neighborhood public schools, demanded the expansion of charters in a 2009 policy brief. It was after this report came out that, Perlstein writes,

a set of interlocking institutions quite more self-interested, ideologically stubborn, and sclerotic than the educational establishment it sought to “disrupt” had come into being to do just what the iron law of bureaucracy predicted they would do: grow, grow, grow.

You can read the rest. Make sure your kids are out of earshot.


From James Surowiecki at The New Yorker

Infrastructure was once at the heart of American public policy. Works such as the Los Angeles Aqueduct, Hoover Dam, and the Interstate Highway System transformed the economy. Today, we spend significantly less, as a share of G.D.P., on infrastructure than we did fifty years ago—less, even, than fifteen years ago. As the economist Larry Summers has pointed out, once you adjust for depreciation, the U.S. makes no net investment in public infrastructure. Yet polls show that infrastructure spending is popular with a majority of voters across the income spectrum. Historically, it enjoyed bipartisan support from politicians, too. If it’s so popular, why doesn’t it happen?

The answer (surprise) is politics, significantly, though not exclusively, of the conservative anti-government variety. But Surowiecki also points out that there have been veto points added in to the process for environmental protection and community empowerment goals. This is historically important, because, as numerous works in urban history point out, large-scale infrastructure projects have often been carried out in profoundly undemocratic and environmentally cavalier ways.

Perhaps more than reviving a tradition of infrastructure spending, we need to cultivate practices of democratic infrastructure development. So, while I’m in general agreement that, since bridge collapse or lead poisoning now threaten me more than ISIS does,

The U.S. needs to approach infrastructure the way it does national defense: come up with a long-term strategy, make sure it gets the money it needs, and hold the government accountable for making that strategy work. Infrastructure is the ultimate public good. It would be nice if ours was actually good for the public,

I don’t know if national defense is the best metaphor.

If Both Sides Do It, No One Has to Understand How (New) Federalism Works

Ron Fournier at National Journal is upset that the Flint water crisis has become a partisan issue. Sure, residents of a majority-Black and heavily Democratic city are being lead poisoned as a result of what John Patrick Leary calls “bottom line” (or perhaps more ideological?) decisions made by an emergency manager, appointed by a Republican governor, on the authority of a law passed by a Republican state legislature (and re-authorized by the same after being rejected by the state’s voters in a referendum), and in the throes of a budgetary crisis exacerbated by drastic cuts in aid from Lansing to Michigan cities authorized by that same Republican legislature.

Most reasonable people would, in the face of these facts, insist on a bit more exactitude from an author in an article describing “How Government… Failed Flint.” Fournier doesn’t provide it. Because there is a Democrat in charge of the federal executive branch (forget Congress. It doesn’t exist, isn’t controlled by Republicans, and does nothing to affect the EPA’s methods or budgets or rules.), Fournier can seize an opportunity to play Both Sides Do It, the game that has delighted Washington dinner parties for decades.

The latest in­dig­nity to plague this city of nearly 100,000 is lead pois­on­ing via their drink­ing wa­ter, a man-made dis­aster cre­ated by the ar­rog­ance and in­com­pet­ence of gov­ern­ment of­fi­cials in Flint, Lans­ing, and Wash­ing­ton—Demo­crats as well as Re­pub­lic­ans.

Any­body angry enough to call for GOP Gov. Rick Snyder’s resig­na­tion should also want the scalp of an Obama ap­pointee at the En­vir­on­ment­al Pro­tec­tion Agency who sat on lead test results.

It’s true that the regional EPA office doesn’t look good. The agency has announced the resignation of Region 5 Administrator Susan Hedman (Fournier’s tit-for-tat “scalp”) and acknowledged that they had failed to aggressively publicize findings by EPA staff in 2015 that Flint river water was a risk for lead contamination and that Flint’s state-supervised safeguards for lead were nonexistent (see the Michigan ACLU).

But to argue, as Fournier has done on NPR’s “The Takeaway,” that hypothetical calls for Barack Obama’s resignation over the Flint crisis are as reasonable as calls for Governor Rick Snyder’s resignation, and that federal culpability for the crisis is as great as the state’s, is absurd. To argue, as Rebecca Leber does in Mother Jones, that the EPA is guilty, because

Like every other agency facing criticism for the water crisis, it has shifted the blame elsewhere—to Michigan’s state officials

is also ridiculous. Leber’s implication is that the EPA has simply refused its obligation to act to protect Flint, making for an even distribution of responsibility between local, state, and federal authorities and between Republicans and Democrats. Fournier’s working assumption is that such a state of affairs is a prerequisite for the sort of bipartisan forgiveness and comity that will allow for healing and progress.

For a rebuttal, I refer you to the partnership of Cleese and Palin:

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This fake bipartisanship is not only wrong but destructive to the prospect of avoiding future calamities like Flint, because it presumes against evidence that the EPA had a course of action available to it that would have meaningfully changed the outcome in Flint. And, honestly, while it’s perfectly fair to fault the EPA for cowardice in not publicly challenging the Michigan DEQ, it doesn’t make sense to argue that such a challenge could have improved a situation already created and left to fester by the state as part of an effort by leaders in Michigan and other states to diminish the power of the EPA.

To understand why that is, it’s absolutely essential to understand how Flint’s local government, the EPA, and Michigan’s DEQ relate in the context of the reactionary New Federalist movement. Congress, under continuing pressure from conservative and industry groups operating at the state level, have moved regulatory and particularly enforcement responsibilities to state governments, even as those state governments, like Michigan’s, have been pulling back home rule powers from local governments and aggressively challenging federal oversight of their regulatory practices. The power and responsibility for protecting local residents from, for example, lead poisoning in their drinking water, has been vested in the level of government that is least likely to uphold it (note: I wrote about this here).

In practical terms,  the enforcement of provisions of the Safe Drinking Water Act as it pertains to “Public Water System Supervision” lies with the states:

 PWSS (Sec 1413) = Public Water System Supervision. The office of Drinking Water in each state environmental agency has the authority to implement the program, if the state has primary enforcement responsibility (primacy).

States have such primacy in 49 of 50 states. So, what Fournier dismisses as “interagency protocol” is in fact “the law” (it might seem pretty stupid, but it is the law). Unfortunately, Michigan’s priority in using the power delegated to it was exercised to avoid taking action. Michigan’s state agencies were briefed by the EPA about the hazards of corrosive water releasing lead into the water supply.Faced with this information, Michigan’s environmental authorities denied and stonewalled. They refused to acknowledge the legitimacy of test results, and they suborned departures from testing protocol to minimize the tested concentration of lead.

The timeline of events shows a clear progression of decisions made by Michigan authorities that resulted in Flint residents’ exposure to lead, and a pattern of denial and defiance by the state.

Notably, after the EPA’s Miguel Del Toral first warned state officials about the danger of lead in February 2015, it appears that the State suborned Flint water officials to improperly manipulate water samples to avoid triggering federal involvement. In testing conducted between January and June 2015, MDEQ officials manipulated the selection of homes for testing to include residences along a roadway where water mains had been replaced in 2007, reducing the exposure to lead, rather than the required protocol of testing areas at greatest risk. Again, state primacy meant that, by violating testing protocols, Michigan could shield itself from more active EPA intervention. Part of the problem for the EPA in this circumstance was that publicizing Del Toral’s warnings would have certainly antagonized Michigan officials, without any clear mechanism through which publicity could guarantee action.

Indeed, after Del Toral’s internal memo leaked in June 2015, arguing that corrosive water traveling through lead-containing pipes constituted a threat that MDEQ was unprepared to test or remedy, Michigan’s Department of Environmental Quality went on attack and called him a “rogue employee.” As I will explain below, this political attack was really the tip of a large iceberg: an organized movement to defame federal regulatory authorities in the court of public opinion and to challenge their legal authority in federal court. To suggest that Hedman’s office “buried the report” in this circumstance–when aggressive action would have predictably triggered further defiance and perhaps a legal challenge– is very different than suggesting that she buried it so that the EPA could avoid doing its job. Fault the EPA for timidity or cowardice. But don’t equate the EPA’s failure to exercise minimal leverage with Michigan’s willful action to expose Flint residents to lead and their active efforts to shield those decisions from higher scrutiny, with the backing of federalist principles of law.

The Flint crisis is not the first moment of state-federal conflict over environmental regulation in Michigan politics. Michigan’s Attorney General Bill Schuette is a member of the Republican Attorneys General Association, an entity formed to pool contributions from wealthy donors and corporations to be distributed to support the party’s candidates for election to state Attorney General posts.Schuette and his wife in fact hosted a “Jewel in the Straits Welcome Cocktail Reception” for lobbyists and donors attending the RAGA’s 2013 summer meeting on Mackinac Island. The Association’s members also participate in a spinoff called the Edmund Randolph Club, which charges “membership fees” of $125,000 to donors interested in gaining access to the Attorneys General at exclusive resort conventions. This is hardly a secret, having been covered by the New York Times’s Eric Lipton in a series of articles published in 2014 which won a Pulitzer Prize in 2015 for investigative journalism.

What’s the upshot of this access to the top state lawyers in the country? Not surprisingly, it’s often to enlist state Departments of Justice in campaigns against federal regulation. As the RAGA’s own documents indicate, the Association

was formed because an inadequate number of state Attorneys General were committed to defending federalism, adhering to the law during the course of multi-state litigation and applying a common-sense, free market approach to governing.

The “adhering to law during multi-state litigation” refers to the tobacco industry settlement and antitrust litigation against Microsoft, by the way. The attorneys general leading those efforts were not “applying a common-sense, free market approach.”  But, according to Lipton, under the leadership of Oklahoma’s RAGA member Scott Pruitt,

attorneys general band together to operate like a large national law firm… to back lawsuits and other challenges against the Obama administration on environmental issues, the Affordable Care Act and securities regulation. The most recent target is the president’s executive action on immigration.

In 2013, members of RAGA under Pruitt’s leadership were presented with letters drafted by Devon Energy, but represented as coming from Pruitt’s office, protesting proposed Bureau of Land Management rules for hydraulic fracturing on federal lands. Schuette’s office was copied on this “sign-on opportunity,” though he did not ultimately join other state AG’s in protesting BLM rules.

The BLM campaign, however, presaged something broader than simply a lobbying effort by the fracking industry against a particular set of regulations. Former Virginia Attorney General Andrew Miller, who had moved on to political lobbying and organizing while ensconced at the libertarian Mercatus Center at George Mason University, envisioned a larger effort that would be “not client-driven” but, according to documents assembled by Lipton, systemically transformative,  focused on

how the General and his colleagues might have an even greater impact on national public policy. The concept I have in mind builds on the momentum created by the States’ leadership in challenging Obamacare….

The touchstone of this initiative would be to organize the States to resist federal “overreach” whenever it occurs. I am not really focusing on “overreach” with respect to an issue involving a single state. Instead where the effort I envision would have the greatest impact is on subjects of national importance to federalism.

Note the convergence of an ideological critique of “overreach” with a broad systemic focus on disrupting the federal regulatory state. Miller further proposed a “strike force” of state officials, AGs in particular, convened on an invitation basis from those “sympathetic to our cause.” Michigan was certainly on his list. Schuette sent deputy Peter Manning (Division Chief, Environment and Natural Resources) to attend a closed-door “Summit on Federalism and the Future of Fossil Fuels” organized by George Mason, but held in Oklahoma City for the convenience of the energy industry representatives speaking at it.

Manning and Assistant AG Daniel Sonneveldt then participated in the development of a strategy to challenge multiple aspects of Obama Administration regulations, most often through the means of multi-state lawsuits filed by Attorneys General representing their states as harmed by federal intrusion on state prerogatives.

Here are some of the multi-state lawsuits joined or supported by Bill Schuette:

  • Halbig v. Burwell, challenging the legality of Affordable Care Act subsidies for policies purchased on a federal, rather than a state, exchange (this was a SCOTUS appeal of the Circuit Court’s refusal to consider what has been called the “Moops” argument that the omission of the phrase “or federal” in one section of the ACA should be taken to invalidate the manifest intent of Congress in passing the rest of the law) .
  • United States v. Texas, headed to the Supreme Court on appeal of the 5th Circuit Court of Appeals ruling in 2015 that Obama administration executive actions on immigration are lawful (overturning an injunction from the Southern District Court of Texas).
  • American Farm Bureau Federation v. EPA, decided in favor of the EPA by the 3d Circuit Court of Appeals in July 2015, involved a suit by officials and agricultural interests in many states (most outside of the Chesapeake Bay region) contesting the authority of the EPA to manage the volume of pollutants flowing into the Chesapeake.
  • Michigan v. EPA, filed 2014, arguing that the EPA improperly executed its mandate to enforce the Clean Air Act by implementing rules for states to reduce CO2 pollution without considering “cost” (to wit, costs to the energy industry) in determining the standards. Schuette led a group of officials representing 24 states in this suit. The Supreme Court upheld the suit by a 5-4 margin in June 2015. In announcing his skepticism about the EPA’s Clean Power Plan, Schuette denounced “yet another executive action taken by President Obama and the EPA that violates the Clean Air Act and causes the price of electricity to increase, placing jobs at risk and costing Michigan families more.”

All of these share the common element of aggressive hostility toward the federal regulatory state. However, another recent action perhaps best demonstrates how Schuette’s activities link the abstract principle of federalism to the concrete interests of businesses at the expense of the safety of urban water supplies. Nominally representing the people of Michigan, Schuette filed suit in June 2015 with Ohio AG Mike DeWine, challenging the EPA’s claim to jurisdiction through its “Waters of the US” (WOTUS) rule over transient standing water (such as a flooded or heavily irrigated farm field) and over soil and materials that reach navigable waterways as runoff.  As the lawsuit progressed, joined through consolidation of similar cases to challenges made by eighteen states in all, Congress passed legislation barring enforcement of the rule.  The 6th Circuit Court of Appeals in October issued a stay in the implementation of the rule, impeding the enforcement of the law until the rule is clarified.

This suit has been framed as a battle against federal overreach and excessive regulation. But the real issue at stake is whether the EPA can compel states to restrict the runoff of agricultural fertilizer from dispersed farmland into waterways that provide drinking water to cities like Toledo, where phosphorous pollution has fed algae blooms over the city’s Lake Erie drinking water intake, resulting in toxic, undrinkable municipal water in the summer of 2014. As Michael Wines reported in the NYT, the recurrent contamination of Lake Erie and its tributary streams by phosphorous is enabled by the gaps in regulatory coverage that the WOTUS rule seeks to address:

The federal Clean Water Act is intended to limit pollution from fixed points like industrial outfalls and sewer pipes, but most of the troublesome phosphorus carried into waterways like Lake Erie is spread over thousands of square miles. Addressing so-called nonpoint pollution is mostly left to the states, and in many cases, the states have chosen not to act.

Beyond that, the Supreme Court has questioned the scope of the Clean Water Act in recent years, limiting regulators’ ability to protect wetlands and other watery areas that are not directly connected to streams, or that do not flow year-round.

Wetlands, in particular, filter phosphorus from runoff water before it reaches rivers and lakes. A federal Environmental Protection Agency proposal to restore part of the Clean Water Act’s authority has come under fire in Congress, largely from Republicans who view it as an infringement on private rights and a threat to farmers.

The essentially political nature of this problem was noted by EPA head Gina McCarthy in 2014.

Critics of the Environmental Protection Agency’s water jurisdiction rule are spreading misinformation, the agency’s chief said Monday.

McCarthy said the rule was proposed in March to clarify Clean Water Act protections for 60 percent of the nation’s streams and wetlands, since two court decisions made it unclear.

“As with everything EPA does these days, there is some misinformation out there, confusing what our plan is all about,” McCarthy said at a conference of water quality officials in New Orleans.

Indeed, misinformation seems to be exactly the point, as political opposition or confusion that delays effective enforcement of regulation effectively negates it, and leaves cities without allies in defending the quality of their water.

This is the climate in which the EPA was operating in Michigan. The state attorney general, a political ally of the governor, has been an active participant in broad efforts to discredit the agency, to legally limit its authority, and to entangle it in lawsuits, as employees of the DEQ have practiced deception to prevent EPA action. The state of Michigan and its DEQ clearly welcome federal involvement only when it comes to sharing blame.

Given all this, it seems a pretty large leap to presume, as Fournier and Leber seem do, that Susan Hedman and Gina McCarthy (adequately staffed through the healthy budget that Congress has given their agency) would have a cakewalk in seizing control from the state authorities and asserting their will. There’s no way that Bill Schuette would have tied the entire agency up in Federal Court over that, given how reluctant he’s been to sue the EPA in the past, right?

In conclusion, let’s not bicker and argue about who poisoned who in Flint, and let’s certainly not bother to understand how the New Federalism works, or for whom.