April 22, 2019
Good Morning! In this morning’s eBlog, we consider the ongoing judicial proceedings related to the City of Flint’s water contamination—contamination with devastating health and tax impacts.
Federal Liability? U.S. District Judge Linda Parker at the end of last week ruled that a lawsuit Flint residents brought against the government over the city’s water crisis can move forward. In their suit, the residents, two years ago, sued the Environmental Protection Agency for “mishandling” the crisis, arguing that agency officials negligently responded, including by failing to use the agency’s enforcement authority under the Safe Drinking Water Act to intervene, investigate, and warn about the health risks. The federal government, last year, moved to dismiss the suit, with federal attorneys arguing alleged misconduct is exempt from liability under the Federal Tort Claims Act’s discretionary function exception. Judge Parker last Thursday the court will not decide the issue of “ultimate liability,” but that the federal government was not immune from a lawsuit: “(The court) can today state with certainty that the acts leading to the creation of the Flint Water Crisis, alleged to be rooted in lies, recklessness and profound disrespect have and will continue to produce a heinous impact for the people of Flint,” Parker stated in her order (See: Jan Burgess and all 2,959 individuals v. United States of America, Civil Court case No.17-11218, U.S. District Court, Eastern District of Michigan, April 18, 2019.) Judge Parker’s ruling concerns a motion filed by the federal government to dismiss the more than 2,959 people named in a lawsuit alleging the EPA’s negligent response to Flint’s water crisis; the suit alleges EPA officials and employees “negligently responded to the water crisis, including by failing to utilize the agency’s enforcement authority under the Safe Drinking Water Act to intervene, investigate, obtain compliance, and warn Flint residents of the health risks posed by the water.” The federal government’s response to the allegations was asking the court to dismiss the suit for “lack of subject matter jurisdiction;” however, after reviewing the case, Judge Parker stated the court believes the plaintiffs’ facts are good enough to hold the government liable for its response to the Flint Water Crisis.
Flint, the largest municipality in Genesee County, is located along the Flint River, some 66 miles northwest of Detroit, with a population of just over 102,000—making it the state’s seventh largest—located entirely within the County—and, this year, celebrating its 200th birthday. But, as we have noted, over the last six decades, the city has been confronted by a series of fiscal and physical crises, with the onset likely triggered by General Motor’s decision to reduce its workforce in the city from 80,000 in 1978 to 8,000 in 2010—a downsizing which nearly halved the city’s population—and, indirectly, likely contributed to its high crime rates and near insolvency. .
Since the late 1960s, Flint has faced several crises. The city sank into a deep economic depression after GM significantly downsized its workforce in the area from a 1978 high of 80,000 to under 8,000 by 2010. From 1960 to 2010, the population of the city nearly halved from 196,940 to 102,434. Last September, the FBI reported Flint was ranked as the nation’s sixth most violent city among those with a population of 50,000 or more: violent crimes were up 23% compared to 2016 according to the report. The combination of the high crime rates and drinking water contamination likely contributed to the state putting Flint into a state of financial emergency from 2002-2004, and then, again from 2011-2015. But the gravest fiscal threat has come from lead contamination from the city’s drinking water that has had the harshest fiscal and physical impacts.
The litigation is a tale of federalism: the victim is a city inside a county devastated by decisions made by a gubernatorially-imposed governance system of emergency managers, a key step in the nation’s largest chapter 9 municipal bankruptcy, Detroit, where Kevyn Orr, appointed by the Governor, ensured in the very first hours that every traffic and street light, and every 9-1-1 call would receive an immediate response—and where, today, the state no longer has any local government under emergency management—mayhap ending a chapter, which helped us perceive how well it could work, but, as with any quasi-dictatorship, how badly it could fail—and with such awful human and governance impacts. Now, it seems, the state program will be quietly laid to rest, with two of Flint’s former EMs have been criminally charged in connection with the crisis.
However, it was not just the State of Michigan which contributed to the human health and fiscal crisis in Flint, but also the federal government: the Environmental Protection Agency, that is the federal agency charged with the responsibility to serve as a watchdog over state environmental operations and mandated by federal law to take over drinking water systems when a significant public health risk becomes apparent.
The litigation here, on behalf of 5,000 residents of the city, includes, as a plaintiff, Jan Burgess, a former Flint resident who was responsible for first notifying the EPA about the growing water problems nearly five and a half years ago—indeed, just six months after the city began drawing its drinking water from the Flint River after ending a decades-long relationship with Detroit’s system—effectively a state-imposed decision which, in January 0f 2016, the Detroit News reported that Miguel del Toral, an EPA water expert, warned, in an internal memorandum, would create problems—a warning which then led EPA Region 5 Administrator Susan Hedman to seek a legal opinion with regard to whether the EPA could force action that was not completed until November 2015—after the state recognized the crisis; indeed, it was not until January 21, 2016, months after testing had indicated high levels of lead in the water, that the EPA issued an emergency order in the crisis. The agency’s probe into the crisis was announced the same day.
Thus, in her opinion, U.S. District Judge Linda Parker wrote that when passing the Safe Water Drinking Water Act, “Congress intended to leave the primary responsibility for overseeing public water systems with the states,” but “expressly directed the EPA to intervene under specified conditions…The EPA’s failure to warn Flint residents of the severe health risks
the city’s water supply posed to them cannot be justified by any permissible
exercise of policy judgment…Within weeks of the switch to the Flint River, the people of Flint suffered rashes and hair loss.” She noted: “The EPA was well aware that the Flint River was highly corrosive and posed a significant danger of lead leaching out of the city’s lead-based service lines at alarming rates into residents’ homes. The EPA was well aware of the health risks posed by lead exposure, particularly to children and pregnant women…Further, the EPA knew that (the Michigan Department of Environmental Quality) and Flint officials were not warning Flint’s residents that they were being supplied lead-laced water.” Judge Parker also concluded that the residents’ claims about the government negligently responding to citizen complaints are not barred by the Federal Tort Claims Act’s discretionary function exception–or, as she further opined: “… Once the government decided to act, it was required to do so without negligence.”
An EPA Inspector General report released last July found that “management weaknesses” delayed federal intervention in the Flint water crisis after Michigan failed to prevent lead contamination, citing management problems at the EPA and its Region 5 office in Chicago, which oversees Michigan, with inspectors noting that regional managers did not properly address state actions to “disinvest” in safe drinking water requirements dating back to 2010, concluding they were intended to be temporary and not affect public health. The report, based on two years of research and in inquiries, also repeatedly noted the Michigan Department of Environmental Quality holds primary responsibility for ensuring compliance with safe drinking water requirements.