Judge weighs whether Flint lawsuit should go forward

Jennifer Chambers
The Detroit News

A judge on Friday heard the first arguments in a lawsuit by Flint residents who say the government has not been aggressive enough in handling the city’s water crisis.

U.S. District Judge David Lawson must decide whether to allow the lawsuit to go forward or let an emergency order by the Environmental Protection Agency continue to address the city’s water contamination.

Lawson heard arguments Friday from attorneys for the state of Michigan and the City of Flint as to why the lawsuit against them should be dismissed. The lawsuit, filed by Flint residents and others, seeks a court order to require all lead service lines be removed from Flint’s water system at no cost to customers.

Lawson also heard from Dimple Chaudhary, a senior attorney with the Natural Resources Defense Council, who argued for the suit to proceed on behalf of Flint resident Melissa Mays, Concerned Pastors for Social Action and the ACLU of Michigan.

In their lawsuit, the plaintiffs allege that government officials continue to violate the federal law that protects drinking water amid Flint’s widespread lead-contamination crisis and the water remains unsafe to drink.

Michael Murphy, an assistant Attorney General who represents state Treasurer Nick Khouri and members of the Flint Receivership Transition Advisory Board, said the court should defer to the EPA’s emergency order issued on Jan. 21 in the wake of widespread lead-contamination in Flint’s water system.

Issued by EPA Administrator Gina McCarthy, the order requires several steps including that “necessary information” be provided to the public in a clear and transparent way to assure that “accurate, reliable and trustworthy information” is available to inform the public and decisions about next steps.

It also calls for full implementation of EPA task force recommendations on sampling, with prompt and regular reporting to the federal agency and the public; ensuring Flint has all of the professional assistance necessary to operate its water system safely; and soliciting the input of “nationally recognized experts” on safe water treatment, sampling and distribution.

“The EPA is on the ground managing the water situation. They are doing this on a daily basis,” Murphy said. “We’re doing what we are told to do.”

Lawson told Murphy that when Congress passed the federal Safe Drinking Water Act, they created a private citizens cause of action remedy, such as a lawsuit.

“Didn’t Congress anticipate these kinds of lawsuits?” Lawson asked Murphy.

Murphy said all violations of the Safe Drinking Water Act are being addressed and eliminated through the EPA order.

“The question is why is there a need for the court to step in and order A, B and C, when A, B and C are already being done?” Murphy said.

Lawson responded, by saying: “This court has had experience with this in the past,” referring to the 35-year federal court oversight of the Detroit Water and Sewerage Department, which ended in 2013 by Lawson’s colleague, U.S. District Court Judge Sean Cox.

Lawson then turned to Chaudhary, who has argued Flint’s tap water remains unsafe and is likely to remain undrinkable for months due to persistent lead contamination.

Lawson asked her what her clients want done that the EPA order is not already doing.

“They have not found violations of SWDA, issued no findings of liability or compliance. The order doesn’t say anything about replacing lead service lines,” said Chaudhary, adding that Congress anticipated citizens causes of action and EPA’s orders to move together in parallels.

Chaudhary said her office petitioned the EPA in October to take action in Flint but it did not issue its order until late January.

She also said there is no reason to think the state or city will comply with the EPA order because they have contested the legality of the order and the efficacy of the order.

Federal officials contend the water is safe to drink after it has been filtered. Pregnant women and children younger than 6, however, should still use bottled water.

“Pipes continue to leach lead. Lead is not minimized. There is continued harm to residents of Flint,” Chaudhary said.

Lawson asked Chaudhary if there were other options other than lead line replacement.

She responded: “It may be the only way to protect people’s health.”

William Kim, attorney for the city of Flint, said the plaintiffs are trying to get judicial review of something the EPA did not order.

“The EPA could have ordered exactly what the plaintiffs want. This is a back-door attempt to get judicial review,” Kim said.

Murphy, who represents the state, also told Lawson that the EPA’s decision to issue an order three months after it was requested was not evidence of ignoring the concerns of the people of Flint.

Lawson responded to context of the urgency: “It depends on whether you are trying to take a shower in your own home or not.”

The judge said he will issue a written decision on the matter.

More than 100 people attended the court hearing in Detroit’s federal court, including Mays, who is the lead plaintiff in the case.

Mays said she remains hopeful Flint residents will prevail even though the state and city want the lawsuit dismissed.

“They are the responsible parties. They are the ones we have to go to for help. At the end of the day, residents need relief and they need it now,” Mays said outside court.

Martha Grevatt of Ferndale attended the court hearing to show solidarity with the people of Flint who have been using bottled water to drink, eat, cook and shower for months now.

“I think they should replace all the lead lines in Flint. The state has the money, the federal government has the money. The people who contributed to the mess should pay,” Grevatt said.

JChambers@detroitnews.com