Attorneys: Flint can’t afford bottled water delivery

Jennifer Chambers
The Detroit News

Attorneys representing the city of Flint want to stop a court order that requires door-to-door bottled water delivery in Flint while the city’s unfiltered tap water remains unsafe to drink.

In a brief filed both in federal court in Detroit and with the U.S. Court of Appeals in Cincinnati on Tuesday, Flint attorneys say a preliminary injunction ordering the state of Michigan and city to provide four cases of bottled water per resident each week if officials can’t prove faucet filters are working to remove harmful lead is “overbroad.” They also say the city lacks the financial resources to comply with it.

Last week, state officials filed an emergency motion asking the Court of Appeals to block the Nov. 10 order issued by U.S. District Judge David Lawson.

According to state officials, the order would be a five-fold increase over current efforts and require another 137 trucks, hiring at least 150 additional people and “a warehouse so large it is not clear if one even exists in the Flint area” at a cost of more than $11 million per month.

Lawson ruled the city’s water resource sites were insufficient for the daily needs of Flint residents while the water remains unsafe to drink without filters. The judge ordered state and city officials to file a report by Dec. 16 detailing how they are complying with his order.

Attorneys for the state have asked the appeals court to issue a decision by Wednesday. Lawson has yet to issue a decision on the state’s request for a stay of his order pending appeal.

On Monday, lawyers suing on behalf of Flint residents urged the appeals court to not block the court order.

Attorney Sarah C. Tallman with the Natural Resources Defense Council said 10 months after widespread lead contamination was discovered in tap water and an emergency was declared, some residents are still struggling to obtain enough clean water to meet their daily needs.

And the “harsh, on-the-ground reality” in Flint is that many volunteers who initially swept in to fill gaps left by the government response to the water crisis have grown exhausted, Tallman said, and have increasingly gone home.

“Winter is approaching, and as temperatures drop, residents’ struggles to hunt down daily drinking water will worsen,” Tallman wrote in her brief. “State officials’ own witness admitted that Flint’s tap water remains unsafe. Any further delay in ensuring adequate access to safe water is too long. A stay should not issue.”

In their emergency motion before the appeals court filed Nov. 22, attorneys for Michigan Treasurer Nick Khouri and the Flint Receivership Transition Advisory Board argue the best way to address Flint’s water issues is to repair the water distribution system, “which has been making a steady recovery precisely because residents are using it.”

Water must move through the system to enable the orthophosphate to coat its pipes and flush out lead particulates, attorneys for the Snyder administration said in their motion.

Earlier this year out of concern, the city held a flush initiative as well as installed automatic flushers in city hydrants to move old, stagnant water through the system.

In a separate personal injury lawsuit filed by Flint residents against state environmental officials and others, attorneys for Flint say they oppose a change of venue request made by the state.

Last month, attorneys for current and former state Department of Environmental Quality employees asked a federal judge to move a civil lawsuit over Flint’s water contamination crisis to a different state, arguing the potential jury pool in Michigan has been tainted by “overwhelming and adverse publicity.”

The motion seeks to have a class-action lawsuit filed by Flint residents against former Flint officials, Gov. Rick Snyder and multiple state employees moved to another state or at the least to Marquette, where an expert hired by the defense attorneys says the potential jury pool is less prejudiced than those in Michigan’s Lower Peninsula.

On Nov. 22, attorneys for Flint filed a brief saying they object to a change of venue outside the state of Michigan or to Marquette as being “unduly burdensome and premature.”

“Here, no trial date has been set or even scheduled. As of the date of this filing, it has been more than a year since various government entities began declaring states of emergency in Flint, and this case has only reached the pre-answer motion to dismiss stage,” attorney Frederick A. Berg wrote in the motion.

U.S. District Judge John Corbett O'Meara has not issued a decision on the matter.