State: Flint water delivery order ‘unnecessary’ burden

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — A federal court order requiring Michigan and Flint to deliver bottled water to all city residents without a verified filter at their home places is unnecessary and places an “insurmountable” burden on state government, the Snyder administration argued in a motion seeking relief.

Snyder officials argued the court order would require a “Herculean effort” equivalent to a large-scale military operation and cost the state at least $10.45 million a month, or $125 million annually. For about a year, Flint’s residents have been advised against drinking their tap water without a filter due to dangerously high lead levels.

Attorneys for Michigan Treasurer Nick Khouri and the Flint Receivership Transition Advisory Board on Thursday asked U.S. Circuit Judge David M. Lawson to “stay” his order from last week while the state prepares an appeal.

In a 37-page opinion, Lawson ordered home delivery of four cases of water per resident each week unless state and city officials can verify each resident has a properly installed and maintained faucet water filter. The delivery order “increases the scope of the State’s emergency response to an unnecessary and insurmountable degree, particularly in light of the injunction’s time constraints,” attorneys wrote.

“The required injunction far exceeds what is necessary to ensure Flint residents have access to safe drinking water,” the lawyers wrote, arguing Khouri and the state advisory board lack the authority to ensure compliance with an order that could cost Michigan taxpayers “millions of dollars.”

Michigan Democratic Leader Jim Ananich, D-Flint, criticized the Snyder administration’s appeal.

“If the governor had made a Herculean effort to address this crisis from the start, they wouldn’t need to continue this legal maneuvering,” Ananich said in a Thursday statement, referring to the three months that passed between the acknowledgment of elevated lead levels and a January state emergency declaration.

The state currently distributes 77,996 cases of bottled water every three weeks through nine official distribution centers, community partners and limited home deliveries, according to a declaration filed Thursday by Michigan State Police Capt. Chris Kelenske, who is heading up the emergency response effort in Flint. Residents also obtain free filters, replacement cartridges and at-home water test kits at those sites.

Thursday’s state filing notes Lawson described those distribution efforts as “significant” and “commendable” even as he issued his order requiring home delivery.

Compliance with the court order would cost the state a minimum of $10.45 million a month, he calculated, requiring 394,540 cases of bottled water each week, 137 delivery trucks and drivers, additional warehouse staff and supplementary distribution services from private companies.

“Use of state personnel to perform these operations will be more costly, more prone to failure due to it not being an operation typically conducted on a routine basis, and will redirect public service resources from providing critical services to the rest of the state of Michigan,” Kelenske said.

Groups hit state’s appeal

Lawson’s preliminary injunction was sought by the Natural Resources Defense Council, the American Civil Liberties Union of Michigan and Flint residents who sued state and city officials to try to speed up the slow process of removing lead service lines blamed for contaminating the city’s water.

“It’s sad that the State of Michigan continues to disenfranchise the community of Flint,” Pastor Allen Overton, a plaintiff and member of Concerned Pastors for Social Action, said in a statement. “What happened to Gov. Snyder’s pledge that he would work to fix Flint’s drinking water crisis? This action today inflicts more harm on a city that’s already hurting.”

Snyder spokeswoman Anna Heaton confirmed the state plans to appeal to the U.S. 6th Circuit Court of Appeals, suggesting Lawson’s order “moves the efforts in Flint backward” by requiring emergency deliveries at a time when experts have said that filtered water is safe.

“The Herculean effort required by the court order would be on the magnitude of a large-scale military operation,” she said, suggesting the resulting costs would hurt the state’s ability to fund lead service line replacement and other recovery programs.

Mass home delivery would require activation of the National Guard and “the hiring of several logistics companies with the necessary equipment and personnel to achieve this unprecedented level of effort,” Heaton continued.

Lawson has not made any decisions on the state motion to lift his original order, but he ordered the plaintiffs to file a response by Wednesday. The city of Flint, also a named plaintiff in the case, has until Wednesday if it wants to respond, Lawson said.

Residents: Pickups a burden

Flint residents who sued for home delivery of bottled water testified at a court hearing in September that picking up the water on a nearly daily basis is a burden on their lives. Residents have been instructed by federal and state officials to drink only filtered or bottled water.

Lawson ruled the water resource sites were insufficient for the daily needs of Flint residents while the water remains unsafe to drink without lead filters.

“The fact that such items are available does not mean that they are reliably accessible or effective in furnishing safe drinking water to every household,” Lawson wrote. “Indeed, the endeavor of hunting for water has become a dominant activity in some Flint residents’ daily lives.”

Lawson’s order also requires the state and city to 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.”

But state attorneys said Lawson did not appropriately recognize “the massive and ongoing relief efforts” in Flint, where emergency relief coordinators say they maintain a list of homebound residents who cannot access bottled water at community sites and other individuals who need regular deliveries.

Snyder and state legislators have so far approved roughly $234 million in Flint aide since October 2015, when officials first confirmed independent findings of elevated lead levels in the blood of Flint children.

While under control of state-appointed emergency managers, the city began using Flint River water in April 2014 but returned to Detroit’s Lake Huron supply in late 2015.