Flint Water Crisis

January 28, 2016

History in the Making: In Flint Water Crisis, Lawsuits Seek Remedies and Accountability

By Allison Torres Burtka

Flint, Mich., is under national scrutiny because of its contaminated drinking water. Various mismanagement of the city’s drinking water supply has allowed dangerous levels of lead into people’s homes, workplaces, and schools.

As Michigan Governor Rick Snyder declared a state of emergency, the Federal Emergency Management Agency issued an emergency declaration, and the U.S. Attorney’s Office and Michigan Attorney General’s Office announced they are investigating the problem, Flint residents and advocacy groups have filed lawsuits to hold the wrongdoers accountable.

Melissa Mays and several other Flint residents who have elevated levels of lead in their bodies are leading a class action lawsuit. Some of them have suffered neurological symptoms, skin lesions and hair loss, gastrointestinal problems, aggravation of existing developmental disorders, and emotional and psychological distress from dealing with the fact that they have been drinking, cooking with, and bathing in toxic water. They also allege property damage, because the water irreparably damaged their pipes and caused their property values to decline. The class may encompass tens of thousands of people. As of late January, the lawyers handling the class action were working with roughly 1,200 class members.

“These lawsuits are important because, when the media’s gone and the story comes off the front page, these people will have to live day to day with what’s happened to them, and we want to make sure funds are available to get them what they need,” said Michael Pitt, who represents the plaintiffs.

BACKGROUND

Flint’s water source was switched from Lake Huron, through the Detroit Water and Sewerage Department, to the Flint River in April 2014. The Flint River water was highly corrosive and required an anti-corrosive agent to prevent lead from leaching into the water, but it did not get this treatment. Although lead may not be present in the original source of drinking water, it can leach in from pipes, solder, and other parts it comes into contact with as it passes through the system.

After the switch to Flint River water, in the third quarter of 2014, the number of Flint children with elevated lead levels had spiked from 2.5 percent to 7 percent, the plaintiffs say. The federal “action level” for lead is 5 parts per billion (ppb); levels above 15 ppb are cause for alarm. The plaintiffs noted that the U.S. Environmental Protection Agency found levels as high as 13,500 ppb in Flint—twice the level that is classified as hazardous waste. Lead is especially dangerous for young children, because it can cause delayed physical and mental development.

The water also contained dangerously high levels of other contaminants, including E. coli and trihalomethanes (a known carcinogen). The plaintiffs contend that officials failed to protect them, timely inform them of the problems, and treat the water adequately—and that they actively deceived residents about the dangers.

RESIDENTS’ CLAIMS

The Mays plaintiffs filed a lawsuit in federal court in November against Governor Snyder, the State of Michigan, the City of Flint, Michigan Department of Environmental Quality (MDEQ) officials, governor-appointed Emergency Managers Darnell Earley and Gerald Ambrose, and Flint officials, in their individual and official capacities. The lawsuit alleges that the defendants’ actions violated the plaintiff’s constitutional rights under the due process clause of the Fourteenth Amendment. That clause establishes that the state cannot deprive a person of life, liberty, or property without due process of law, and it includes an implied right to bodily integrity—which the plaintiffs say the defendants violated. The defendants “created and increased the risk of prolonged serious and life-threatening dangers to plaintiffs and the class where none existed before,” the complaint says.

The daily cost of the anti-corrosive agent was estimated to be $100. The defendants knowingly took safe drinking water and “replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes”—and they ignored evidence of the water’s toxicity for 18 months, the complaint says.

Pitt explained that the number of culpable defendants involved and the allegations against each of them, as well as immunities that apply to some of them for some of the allegations, necessitated filing three lawsuits in separate courts. Detailing the claims in this way is needed to “close down any potential escape hatches for these defendants,” he said.

The Michigan Court of Claims handles cases against the state. As such, the plaintiffs filed a lawsuit there on Jan. 15, naming Snyder, the state, MDEQ, the Michigan Department of Health and Human Services, and Earley and Ambrose, in their official capacities. The crisis amounts to a state-created danger, the plaintiffs say, and state officials’ falsifications, deliberate delays, and deception deprived Flint residents of their rights under the Michigan constitution, including the right to fair and just treatment during investigations.

“Defendants’ conduct in exposing Flint residents to toxic water was so egregious and so outrageous that it shocks the conscience,” the complaint says. “Defendants had time for deliberation in their decisions to expose Flint residents to toxic water, and their decision to do so was made with deliberate indifference to the serious medical risks.”

On Jan. 19, the plaintiffs filed suit in Genesee County Circuit Court against the City of Flint as well as certain state and city officials. The defendants were grossly negligent in switching the water source, failing to monitor lead levels, and assuring users that the water was safe when it was not. They allege that the defendants used flawed testing and notification methods, including cherry-picking the test sites and failing to notify residents when elevated levels were found.

In October 2015, Flint’s water switched back to the Detroit system, but the toxic exposure will continue until pipes and service lines damaged by Flint River water can be replaced. Pitt said the lawyers hope some of the residents’ symptoms—such as rashes and hair loss—will dissipate once they are no longer exposed to the contaminated water. But the effects of lead poisoning may not manifest for years, so they anticipate the need for long-term monitoring, and they seek a medical monitoring fund for that purpose.

CITIZEN SUIT

On Jan. 27, the Concerned Pastors for Social Action, Melissa Mays, American Civil Liberties Union of Michigan, and National Resources Defense Council, Inc. (NRDC), sued the Michigan Secretary of the Treasury, members of the transition advisory board, the City of Flint, and the city administrator, arguing that they failed to comply with the federal Safe Drinking Water Act. The act requires the defendants to use optimal corrosion control treatment, monitor household water for lead, report their monitoring, and notify customers of individual results—but they did not, the plaintiffs allege. “It’s clear that the government failed at every step of the way,” said Anjali Waikar, an NRDC lawyer who represents some of the plaintiffs.

The complaint says that the blood lead level of one child had more than tripled since the switch to Flint River water. The plaintiffs point out that “[e]ven low levels of lead exposure during childhood can result in lower intelligence, poorer academic performance, developmental delays, attention deficits, impulsivity, and other behavioral problems,” and that lead can harm adults in various ways, including nerve disorders and high blood pressure.

This citizen suit seeks to stop the defendants from violating the Safe Drinking Water Act and to get them to replace residents’ lead service lines. Environmental laws such as the Safe Drinking Water Act “are powerful because they authorize citizens to act on their own behalf and seek judicial intervention when the government is failing to protect them,” Waikar said. In addition to providing a remedy to Flint residents, “the goal is to ensure that this kind of disaster doesn’t happen again,” she said.