Flint water lawsuits to proceed
Appeals court reverses federal judge; says Flint water lawsuits can proceed
July 28, 2017
by Paul Egan
(read article in the Detroit Free Press)
The U.S. 6th Circuit Court of Appeals on Friday reversed a federal judge’s decision to dismiss two lawsuits filed by Flint residents over the contamination of their drinking water, saying parts of the lawsuits can proceed to trial.
It’s a victory for Flint activist Melissa Mays and other plaintiffs.
A three-judge panel unanimously reversed parts of orders issued by U.S. District Judge John Corbett O’Meara of Ann Arbor, who had dismissed the lawsuits.
“It’s really a very important decision,” said Royal Oak attorney Michael Pitt, who represents Mays and other plaintiffs in one of the two lawsuits.
“It’s a good day for the people of Flint.”
There was no immediate word on whether the state would appeal the ruling.
It wasn’t a total victory for the plaintiffs. The appellate court dismissed allegations against the State of Michigan and state agencies, saying they enjoy sovereign immunity from such lawsuits. And Gov. Rick Snyder was dismissed as a defendant in one of the two lawsuits.
In one lawsuit, Flint residents Beatrice Boler, Pastor Edwin Anderson and Alline Anderson, as well as EPC Sales, a Flint business, sued former Flint emergency managers Darnell Earley and Gerald Ambrose, former mayor Dayne Walling, Snyder, the State of Michigan, the Department of Environmental Quality and the Department of Health and Human Services.
In the other lawsuit, a proposed class-action, Mays sued on behalf of herself and her three children, along with Flint residents Keith John Pemberton, Elnora Carthan and Rhonda Kelso. They named as defendants Snyder, the State of Michigan, Earley, Ambrose, and former emergency manager Ed Kurtz; Walling, the City of Flint; and several current and former state, city and county officials.
Both Boler and Mays alleged violations of their constitutional rights to due process and equal protection of the law, among other claims they advanced.
In dismissing the lawsuits, O’Meara ruled that lawsuits related to safe drinking water must be filed under the federal Safe Drinking Water Act — not the U.S. Constitution.
But the federal appeals panel disagreed, saying that some cases of water pollution could infringe on residents’ civil rights without even violating the Safe Drinking Water Act. For example, what if drinking water was contaminated by a pollutant not regulated by the Safe Drinking Water Act, or if residents were subjected to polluted water based on racial discrimination? the judges asked.
The ruling is significant because residents can collect monetary damages through constitutional claims. They can’t collect damages through a suit under the Safe Drinking Water Act; they can only get court orders making polluted water safe to drink.
The opinion was written by Judge Jane Stranch, joined by Chief Judge Guy Cole Jr. and Judge Bernice Donald. All three were appointed by Democratic presidents.
The court sent the case back to federal court in Ann Arbor, where U.S. District Judge Judith Levy is now presiding over the Flint water cases in place of O’Meara, who is semi-retired as a senior judge.
At a status conference this week, Levy announced plans to consolidate some of the class actions involving Flint.
Flint’s drinking water became contaminated with lead in April 2014 while the city was under the control of a state-appointed emergency manager. As a cost-cutting move, the city began temporarily drawing its drinking water from the Flint River and treating it at the city water treatment plant while it waited for a new water pipeline to Lake Huron to be completed.
Previously, the city used Lake Huron water treated by the Detroit Water and Sewerage Department. The state Department of Environmental Quality has conceded it failed to require needed chemicals to be added to the corrosive Flint River water. As a result, lead leached from pipes and fixtures into the drinking water.
Immediate complaints about the taste, appearance and smell of the water were largely ignored by the state, which also dismissed early concerns about tests showing a spike in lead levels in the blood of Flint children. It wasn’t until early October — months after outgoing Snyder chief of staff Dennis Muchmore raised concerns in a July 2015 e-mail that the legitimate concerns of Flint residents were being “blown off” — that Snyder and other state officials acknowledged a major problem.
The water switch is also suspected as a possible source of outbreaks of Legionnaires’ disease linked to a dozen deaths.
Attorney General Bill Schutte has brought criminal charges against 15 current or former state and city officials. Those charges are pending.