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Escaping the Abdication Trap When Cooperative Federalism Fails: Legal Reform After Flint (WP-17-23)

David Dana

This working paper argues that, with respect to our federal regime for safe drinking water, what we observe is not cooperative federalism but rather a triple abdication—abdication of responsibility on the part of the federal, state, and local governments. As a result, some localities inadequately test and/or fail to address problems in drinking water, including problems with lead, as in Flint. The triple abdication of responsibility for addressing lead in water is in large part due to the lack of political will at the federal and state level to provide localities with the funding they realistically would need to upgrade their infrastructure to remove lead pipes. The relevant actors do not want to know, or do, anything, about problems because there is simply not enough political will to secure the funding to solve them. The best way to address the deficit in political will would be legal reforms in our safe drinking water regime that will provide those at risk of lead poisoning with salient, readily-understandable information regarding the risks they face. To that end, the working paper proposes making states (and not just local water authorities) legally responsible for testing water for lead and disclosing test results. In addition, the working paper argues that water test results and other relevant information be made available to residents in visually powerful, interactive, online maps. Making states legally responsible and new substantive requirements for testing and disclosure would help motivate and empower citizens to lobby for public funding and would make citizen suit litigation a more effective tool to combat abdication.
David Dana, Kirkland & Ellis Professor of Law and IPR Associate, Northwestern University

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