The Flint drinking water crisis - first thoughts and a legal overview
On the Supreme Court’s docket – Mississippi v. Tennessee, the first interstate groundwater case

Litigating the Flint water crisis – an overview of the lawsuits and legal action

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:

  1. Class actions and torts, coupled with Constitutional claims against the government actors;
  2. Citizen suits filed by civil rights and environmental groups, focused on enforcement of the Safe Drinking Water Act; and
  3. 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. Other complaints have named private firms that were hired by Flint along with public officials as defendants. These include Gilcreast et al. v. Lockwood, Andrews & Newman, P.C., et al. (a class action filed in federal court) and Walters v. Lockwood, Andrews & Newman, P.C., et al. (a negligence action filed in state court).

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. 

Update: The citizen suit plaintiffs (including NRDC and ACLU) have filed a Motion for Preliminary Injunction (March 24, 2016) to ensure that Flint residents have reliable access to safe drinking water until Flint’s water system demonstrates compliance with the Safe Drinking Water Act. The Motion for Preliminary Injunction is supported by a thorough Plaintiffs' Appendix with 99 exhibits, totaling more than 600 pages of correspondence, records, and other key documents. Due to the size of these files, they are linked in parts:  Plaintiffs Appendix pages 1-58 (including Table of Contents), 59-90, 91-145, 146-251, 252-364, 365-413, 414-588, and 589-655.

Update: In July 2016, U.S. District Court Judge David Lawson denied motions to dismiss filed by state and city defendants, ruling that the citizen suit can proceed against these defendants, despite the EPA's Emergency Administrative Order and claims of Eleventh Amendment immunity. The Concerned Pastors for Social Action opinion is the first decision by a federal court in the Flint water crisis. The Motion for Preliminary Injunction is still pending.

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.

Update: For more coverage, see my interview with Michigan Public Radio and this excellent Detroit Free Press article by Jennifer Dixon.