What to Do When You Can’t Drink the Water: Possible Legal Responses to the Flint Water Crisis

News of the water crisis in Flint reads like a dispatch from a war zone. National Guard soldiers deployed to distribute supplies.[1] Public and private water supply infrastructure damaged beyond reasonable repair. Anguished mothers demand explanation and recourse for elevated levels of lead in their children’s blood. There seems to be no end to the bad news and no viable solution in sight.

 

The public health catastrophe began after city officials (led by a state-appointed emergency manager), frustrated with the high prices charged by the city of Detroit for water, implemented a plan in April 2014 to build their own pipeline from Lake Huron to supply water to the city.[2] They chose the Flint River as a source for drinking water during the estimated two-year-long construction period but failed to apply the proper anti-corrosion treatment necessary before the water flowed through the city’s aging pipes. Further hapless decisions followed at a devastating cost.[3]

 

The region and the country are now focused on Flint. Investigative journalists have answered the “what happened?” and “how did we get here?” questions. The next question for locals and national observers is: “What’s next?” Who should pay for this damage? Should it be the city’s emergency managers, Ed Kurtz and Darnell Earley (both appointed by Michigan Governor Rick Snyder), who chose to use the Flint River as a temporary source? Or Jerry Ambrose, a subsequent emergency manager who refused an offer from the City of Detroit in January 2015 to waive the $4 million reconnection fee to switch back to Detroit water? Should the Detroit Water and Sewage Department be held accountable as well for charging the rates that lost them Flint as a customer?[4]

 

The Michigan Department of Environmental Quality (MDEQ) is probably easiest to blame. The former Director, Dan Wyant who—in the midst of the crisis—resigned from his position, admitted in October 2015 that a staffer working with the City of Flint applied an inappropriate federal standard for corrosion control to the water drawn from the Flint River that caused the lead to leach from the pipes into the drinking water.[5] But some responsibility may lie with the EPA. The agency was informed in February 2015 of high lead levels in the water in February 2015 and the EPA (following protocol) merely reported it to the MDEQ—who responded that their corrosion control program was optimal—instead of taking further action.[6]

 

Who should be held responsible and how they should be punished is yet to be determined. In the meantime, here is a brief look at the legal action currently underway in response to the crisis.

 

Several class action lawsuits in response to the crisis have been filed by Flint residents in both local and federal court. One suit filed in early January 2016 in Genesee County Circuit Court against Governor Snyder, other state and municipal officials (including the former emergency managers), and the city of Flint itself alleges breach of contract, unjust enrichment, breach of implied warranty and a violation of the Michigan Consumer Protection Act.[7] Plaintiffs claim that they were charged and have paid for the commodity of potable water but have not received it. They claim that defendants have breached their contract to supply drinkable water and the implied warranty that the water supplied by the city should be safe to drink, and that defendants were unjustly enriched by the payment.[8]

 

Plaintiffs also allege that the defendants’ assurance about the drinkability of the water, before they admitted it had been poisoned in October 2015, was an example of “unfair, unconscionable, and deceptive methods” in violation of the Michigan Consumer Protection Act.[9] Plaintiffs ask for an order declaring the breach of contract and violation of the Consumer Protection Act and an award of damages for their suffering.[10]

 

Another class of Flint residents, who filed a complaint in U.S. District Court at the end of January 2016, took a different approach. Their complaint against city and state officials, including Governor Snyder, claims, among other things, that the state officials discriminated against Flint residents when they supplied alternative safe drinking water to state employees who worked in Flint beginning in January 2015 while assuring residents that the water from the tap was safe to drink.[11] Claiming that state officials violated their right to equal protection under the 14th Amendment by providing safe drinking water to some state residents but not others, plaintiffs ask for compensatory and punitive damages and seek injunctive and declaratory relief.[12]

 

The U.S. Attorney’s Office for the Eastern District of Michigan confirmed in early January that it is investigating the matter, although it is unknown whether the investigation is civil or criminal.[13] The Department of Justice generally does not confirm or deny the existence of ongoing investigations, but Gina Balaya, the spokesperson for the USAO in Detroit, told the Detroit Free Press that an exception was made in the Office’s general practice due to the many inquiries from Flint residents.[14]

 

The federal investigation could possibly be focused on violations of the Clean Water Act.  The Clean Water Act of 1977 regulates the unauthorized discharge of pollutants into drinking sources with civil or criminal penalties. The Act includes an enforcement provision that calls for the criminal prosecution of any person who knowingly or negligently “introduces into a . . . publicly owned treatment works any pollutant or hazardous substance which such person knows or reasonably should have known could cause personal injury.”[15] If a party knew that the introduction of such a pollutant could bring serious bodily injury or death, the penalty could be more severe.[16] One of the many federal regulations that follow from this provision requires “federal, state, and local government . . . to implement  . . . [predetermined water quality standards] to control pollutants”.[17] If a person knowingly or negligently fails to implement this standard, he or she could also be criminally liable under the Act’s enforcement provision .[18]

 

If the federal investigation centers around these violations, the question would be whether an individual from the MDEQ knew that the water from the Flint River did not meet the EPA pretreatment requirements, negligently ignored the results, or failed to adequately retrieve them. The MDEQ has admitted that they applied the incorrect standard during the tests for corrosion control—could this count as a violation of this regulation for failing to adequately retrieve results to meet the EPA’s standards?

 

In an effort to be more transparent, Governor Snyder released emails from his office about the crisis in late January. The emails indicate the state’s potential attempts to dodge responsibility for the crisis, but are certainly not conclusive as to whether Snyder’s administration knew of the inappropriate levels of pollutants in the drinking source.

 

An email from Snyder’s chief of state, Dennis Muchmore (who has since retired) from September 25, 2015 to Snyder seems to imply that the state was looking to avoid responsibility for the crisis when he writes, “I can’t figure out why the state is responsible except that [then Treasurer Andy Dillon] did make the ultimate decision so we’re not able to avoid the subject.”[19] Another damaging email revealed that the Michigan Department of Technology Management and Budget (DTMB) has supplied water coolers to the Michigan state office building in Flint for over a year—the act upon which the suit in federal court is based. The spokesperson for the DTMB told the Detroit Free Press that the department never told state employees that the water was unsafe to drink, it only supplied the alternative source in response to complaints “as a landlord would to a tenant.”[20]

 

Whether these statements and actions by Snyder’s administration indicate any knowledge, recklessness or negligence in regard to the pretreatment standards could be a topic uncovered during the DOJ investigation.

 

In January 2016, the Attorney General of Michigan, Bill Schuette, announced that the state would also open an investigation “to determine what, if any, Michigan laws were violated in the process that resulted in the contamination case.”[21] There is also an EPA audit team currently investigating the crisis as well as an independent task force appointed by the state.[22]

 

This brief overview of possible legal action is only one small inside look into what is ahead of Flint and its residents. Although Flint’s most pressing need is resources to repair the damaged system, it is also important for those in power to be held responsible—to provide both private recourse for those harmed and a sense of justice to the community.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan..

 

[1] Paul Egan, Snyder Activates National Guard to Help in Flint, Det. Free Press (Jan. 15, 2016) http://www.freep.com/story/news/local/michigan/2016/01/12/snyder-activates-national-guard-help-flint/78716544/.

[2] Jeremy C.F. Lin, Jean Rutter and Haeyoun Park, Events That Led to Flint’s Water Crisis, N.Y. Times (Jan. 16, 2016), http://www.nytimes.com/interactive/2016/01/21/us/flint-lead-water-timeline.html?_r=0.

[3] Jeremy C.F. Lin, Jean Rutter and Haeyoun Park, Events That Led to Flint’s Water Crisis, N.Y. Times (Jan. 16, 2016), http://www.nytimes.com/interactive/2016/01/21/us/flint-lead-water-timeline.html?_r=0.

[4] Id.

[5] Id.

[6] Letter from Doug Ringler, Auditor General, State of Michigan to Senator Jim Ananich, Michigan Senate Minority Leader (Dec. 28, 2016), http://www.audgen.michigan.gov/finalpdfs/15_16/l761032015.pdf.

[7] Complaint and Demand for Jury Trial, Collins v. Governor Snyder, No. 16 106077 (Jan. 16, 2016).

[8] Id.

[9] MCLA 445.903(1).

[10] Complaint and Demand for Jury Trial, supra note vii.

[11] Class Action Complaint and Class Action Jury Demand, Boler v. Earley at 4, No. 16-10323 (E.D. Mich. 2016).

[12] Id. at 26.

[13] Paul Egan, Snyder Declares Emergency as Feds Probe Flint Water, Det. Free Press (Jan. 15, 2016), http://www.freep.com/story/news/local/michigan/2016/01/05/us-attorneys-office-investigating-lead-flint-water/78303960/.

[14] Id.

[15] 33 U.S.C. §1319(c)(1) (2015).

[16] Id.

[17]  40 C.F.R. § 403.1 (2016).

[18]33 U.S.C. §1319(c)(1) (2015).

[19] John Wisely, Paul Egan and Jennifer Dixon, Snyder Emails: Aides Figured Flint was Others’ Problem, Det. Free Press (Jan. 21, 2016), http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/01/20/rick-snyder-releases-emails-related-flint-water-crisis/79057168/.

[20] Paul Egan, Amid Denials, State Workers in Flint Got Clean Water, Det. Free Press (Jan. 29, 2016), http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/01/28/amid-denials-state-workers-flint-got-clean-water/79470650/.

[21] Paul Egan, AG Schuette Opens Investigation Into Flint Water Crisis, Det. Free Press (Jan. 15, 2016), http://www.freep.com/story/news/local/michigan/2016/01/15/ag-schuette-flint-water-crisis/78836248/.

[22] Todd Spangler, Flint Lead Problems Raised at National Water Hearing, Det. Free Press (Nov. 18, 2015), http://www.freep.com/story/news/local/michigan/2015/11/18/flint-lead-problems-raised-national-water-hearing/75990848/.

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