Lawsuits have started over the Flint water crisis, with several prominent public interest organizations and law firms filing complaints in federal and state courts. This post provides an overview of the lawsuits filed, and I expect to update it as more come in. As we’ve seen in other major environmental disasters, the legal action is coming from three directions, pretty much following the textbook, but with a few wrinkles:
- Class actions and torts, coupled with Constitutional claims against the government actors;
- Citizen suits filed by civil rights and environmental groups, focused on enforcement of the Safe Drinking Water Act; and
- Government investigations, both state and federal, that may result in civil and criminal enforcement actions.
The most prominent and organized class action is titled Mays v. Snyder. The legal team is led by Goodman & Hurwitz and Pitt McGehee Palmer & Rivers, P.C. (Disclosure: Bill Goodman is an adjunct professor at Wayne Law and most members of the legal team have ties to the law school.) They have a very useful website - flintwaterclassaction.com - with information for potential class members, the Flint community, and volunteers looking to help the effort (law students - check this out). They filed a complaint in U.S. District Court for the Eastern District of Michigan in November 2015 and companion complaints in the Michigan Court of Claims and Genesee County Circuit Court. The complaints include both tort and Constitutional claims against the governmental actors as racial minorities are disproportionately affected by the lead poisoning.
Several other class actions and private lawsuits have already been filed with more to come. Geoffrey Fieger filed Kidd v. McLaren Flint Hospital in Genesee County Circuit Court, seeking damages for victims who contracted Legionnaires’ disease while being treated during this crisis. Also notable is Boler v. Earley, filed by former Genesee County Circuit Court chief judge Valdemar Washington.
The lead citizen suit was filed by a coalition of local community organizations, the ACLU, and the Natural Resources Defense Council. Titled Concerned Pastors for Social Action v. Khouri, it alleges violations of the federal Safe Drinking Water Act and was filed in the U.S. District Court for the Eastern District of Michigan in January 2016. The suit followed a required notice of intent to sue letter sent in November 2015 and a formal Petition to the EPA for Emergency Action under the Safe Drinking Water Act sent in October 2015.
The federal Justice Department and the Michigan attorney general’s office have also begun investigations. My Wayne Law colleague Peter Henning analyzes these efforts and potential criminal and civil outcomes in his New York Times DealBook column, Assessment of Flint Water Crisis May Hinge on Stupidity vs. Criminality. Professor Henning highlights a very broad Michigan law that allows for the prosecution of public officials for misconduct in office based on common law crimes that are not otherwise included in any statute, but defined by the courts as “corrupt behavior by an officer in the exercise of the duties of his office.” Also keep an eye on developments from the EPA’s Office of Inspector General, which issued a project notification to begin an investigation of the agency’s response and oversight, reviewing headquarters, Region V, and the state of Michigan.