Bottled Water

“In modern society, when we turn on a faucet, we expect safe drinking water to flow out. As the evidence shows, that is no longer the case in Flint. The Flint water crisis has in effect turned back the clock to a time when people traveled to central water sources to fill their buckets and carry the water home.” – U.S. District Court Judge David M. Lawson, Opinion and Order Granting Plaintiffs’ Motion for Preliminary Injunction. Finding that the state failed to meet its legal duties of providing safe drinking water to Flint residents, a federal court has ordered the state to deliver bottled water and better inform residents about lead contamination. Judge David M. Lawson’s opinion and order for preliminary injunctive relief in Concerned Pastors for Social Action v. Khouri is another significant litigation win for drinking water protection and rights coming from the Flint water crisis. The lawsuit alleging ongoing violations of the federal Safe Drinking Water Act was filed in January 2016 in the U.S. District Court for the Eastern District of Michigan by a coalition of local community organizations, the ACLU, and the Natural Resources Defense Council, following their notice of intent to sue letter. The citizen suit plaintiffs then filed a Motion for Preliminary Injunction in March 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 was 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.) In July 2016, Judge 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. With the motions to dismiss denied, the court held an evidentiary hearing on the motion for preliminary injunction in September 2016, focusing on the ongoing hardships endured by Flint residents seeking safe drinking water. The court’s opinion begins with a review of the plaintiffs’ claims and their likelihood of success. The plaintiffs allege that the defendants’ failure to (1) operate and maintain optimal corrosion control treatment, (2) monitor tap water for lead, and (3) report and notify residents of lead contamination violate the federal Safe drinking Water Act. And the plaintiffs further allege that the state is the operator of the Flint water system and is legally responsible for its safe and effective operation. The court agreed all around, relying on testimony from Bryce Feighner, Chief of the Office of Drinking Water at the MDEQ, concluding “the unfiltered tap water in Flint is not safe for the residents to drink at this time.” And the court further rejected the state defendants’ argument that the City of Flint is the sole owner and operator of its water system, as “the state defendants have been the municipal government during the receivership that was put into place by Governor Snyder. The emergency managers ‘act[ed] for and in the place and stead of the governing body and the office of chief administrative officer of the local government.’” (Quoting Public Act 4, § 15(4)). The court then turned to the plight of Flint residents to obtain safe drinking water, the danger of lead poisoning, and the dismissive response by the state:

“It is beyond dispute that Flint residents, like all other people, need daily access to a source of safe drinking water, and the presence of lead in drinking water can cause serious health problems. Most at risk to lead exposure are infants, young children, and pregnant women. Lead can cause permanent damage to the brain and kidneys and can interfere with the production of oxygen-carrying red blood cells that perfuse other organs. Lead poisoning has been linked with lowered mental functioning in children. And it can affect more severely adults with kidney ailments and high blood pressure. That much is uncontested here. The Flint defendants argue, however, that the plaintiffs have not offered evidence that a single Flint water user lacks access to safe drinking water, nor that a single consumer has been forced to consume unsafe water. They characterize the harm claimed by the plaintiffs in three ways: (1) inconvenient for some; (2) embarrassing for some; and (3) and embarrassing for some because their needs are being met by people or organizations other than the government. The Flint defendants contend that although some Flint residents suffer varying degrees of inconvenience and embarrassment in obtaining safe drinking water, such inconveniences do not rise to the level of an irreparable harm.”

To support their arguments that the Flint water crisis is nothing more than an “inconvenience” and “embarrassment” for Flint residents, the state defendants pointed to the availability of free tap filters and bottled water at points of distribution around the city. The court commended these steps, but found them “uneven at best.” The filters only make the tap water safe to drink when properly installed and maintained, but witnesses testified that up to half of the homes had problems with filters. And many residents are unable to obtain and transport bottled water from distribution points back to their homes:

“Bottled water is heavy, and not all of Flint’s residents are capable of transporting the cases of water effectively. Indeed, the endeavor of hunting for water has become a dominant activity in some Flint residents’ daily lives. The initial surge of volunteer support last winter aided greatly in the distribution efforts, but as that effort wanes, for any number of reasons, access to water becomes more difficult. .... The plaintiffs have made a significant showing that at least some residents have struggled to obtain the water they need to sustain themselves. And their evidence raises serious questions as to the efficacy of the emergency response. Flint has been struggling to access safe drinking water for the better part of a year. With the colder months approaching, it is reasonable to conclude that the difficulties will worsen.”

The court then concluded:

“This lawsuit was prompted by the lead contamination of the Flint water delivery system. The interim relief is intended to provide a rough substitute for the essential service that municipal water systems must furnish: delivery of safe drinking water at the point of use. The Court is convinced that this service can be achieved by means of the current water main and service line infrastructure, augmented by effective faucet filters that are installed and maintained properly. If the defendants cannot establish that a household is so equipped, then they must deliver the water by other means. They also must provide information to residents about the current state of the water distributed through the system, proper use and maintenance of filters, and points of distribution of bottled water.”

The court’s order specified that the defendants must provide “door-to-door bottled water delivery.” The defendants must further provide-

“clear and current information about lead contamination in the drinking water that states that: (1) unfiltered tap water from the Flint Water System is currently unsafe for drinking, cooking, brushing teeth, or preparing baby formula because it may contain high levels of lead; (b) lead exposure can cause serious and permanent health harms, especially when consumed by pregnant women, infants, children less than six years old, and adults with high blood pressure or kidney ailments; and (c) faucet filters are effective at removing lead only when properly installed and adequately maintained. The notices must also list the locations, hours, and resources available at state-run water distribution sites, and provide a phone number, email address, and website that Flint residents can use to notify the defendants if they lack access to sufficient safe water and to arrange for a prompt bottled water delivery or faucet filter replacement, installation, or maintenance. The initial notices must be delivered promptly, and thereafter whenever there is a material change in the information furnished. The notices must be delivered in a manner reasonably calculated to ensure actual notification to each household.”

And the notices must be presented in multiple languages, including English, Spanish, Chinese, Arabic, and Hmong. The state reacted quickly, not with a commitment to provide safe water per the court’s order, but with a statement that it would challenge the ruling due to the cost of compliance - see coverage in the Detroit News. Update: The State has filed a Motion for Stay Pending Appeal in the Sixth Circuit.