Appeals court sides with water delivery for Flint

Jennifer Chambers
The Detroit News

Despite a month-old court order requiring Michigan to deliver bottled water door-to-door to Flint residents, the state is continuing to drop off water only at residents’ requests, state officials confirmed on Friday.

The state released a report detailing how they have complied with a Nov. 10 federal court order that calls for four cases of bottled water per resident be delivered each week if officials can’t prove faucet filters are working to remove harmful lead.

The status update came just hours after the 6th Circuit Court of Appeals refused to halt an order by U.S. District Judge David Lawson that requires the delivery service at households that don’t show compliance.

On Nov. 10, Lawson issued the order saying bottled water must be delivered directly to residences in Flint and that simply handing out water filters does not ensure they are effective in reducing lead content of drinking water to an acceptable level.

In the state’s report, assistant state Attorney General Richard Kuhl said notices are being mailed to each of the more than 40,000 users of the Flint water supply, providing information in multiple languages regarding water quality and filter use and maintenance.

“The state of Michigan is continuing to provide water resources to the residents of Flint as it works in partnership with the city and federal governments to move Flint forward as quickly and effectively as possible and has provided thousands of individual deliveries of water to households, by request,” the status update says.

The state had discussions with six private vendors in an attempt to identify entities that can provide the door-to-door water service to comply with the order, officials reported to Lawson on Friday.

“These vendors confirmed what the State Emergency Operations Center had originally suspected: implementing door-to-door water delivery involves significant logistical difficulties,” Kuhl wrote. “The most detailed information provided to the state by the vendors estimates that 331,869 cases of water per week will be required. No private entity has a sufficient number of employees and vehicles to immediately implement the delivery as ordered.”

On Friday afternoon, the U.S. appeals court said in a 2-1 decision that Flint residents continue to suffer irreparable harm from the lack of reliable access to safe drinking water and many residents who rely on improperly installed filters continue to be at risk of lead exposure.

“Compliance with the order only requires that the state defendants deliver bottled water to homes until they ensure that a home has a properly installed and maintained water filter, or if the residents opt-out of the delivery service,” the opinion says.

Residents, meanwhile, have been instructed to use only filtered or bottled water for consumption, and researchers encouraged those practices Friday until further notice from state or federal officials. No amount of lead is considered safe.

In response to the court’s decision, Anna Heaton, spokeswoman for Gov. Rick Snyder, said Friday the state will continue daily bottled water deliveries by request, “just as we have been. Residents in need of this service should dial 211 for water and filters.”

The state and city agree that bottled water deliveries to residents who do not need them will reduce the progress made in the city’s recovery, Heaton said.

“The dispute in this matter is over science, not over providing resources to residents of Flint,” Heaton said. “This is a complex issue where the data is monitored closely and updated frequently and the court did not address more recent testing showing Flint’s lead levels under the federal action level.”

Officials for the city were not available to comment on the ruling.

In a dissenting opinion, U.S. Court of Appeals Judge Jeffrey Sutton said he can appreciate why Lawson would “be tempted” to order daily deliveries of bottled water to thousands of residents of Flint an estimated expense of $10.5 million a month, and why his appeals court colleagues would “be tempted” to leave that order in place.

But, Sutton wrote, “ fear that the district court’s unusual preliminary injunction will do more harm than good for the people of Flint and delay rather than expedite a solution to this problem.”

“I have two key concerns: It’s not clear that Flint’s water violates federal law at this point and, even if it does, the order expedites the wrong thing by forcing government officials to prioritize weekly deliveries of bottled water over ensuring that the new filters provided to 96 percent of Flint residents work,” he wrote.

The appeals court’s confirmation of the order was celebrated by several groups and Flint residents.

“My holiday wish for Flint is that the state of Michigan stops fighting this court order and gets back to work securing safe drinking water for every person in Flint,” said the Rev. Allen Overton of the Concerned Pastors for Social Action. “Winter is upon us, but many people in Flint still do not have functioning filters for tap water installed in their home or a reliable means to get bottled water. That must change and quickly.”

Dimple Chaudhary, senior attorney with the Natural Resources Defense Council, said the courts have spoken and the state’s foot-dragging must end.

This week, state officials asked Lawson to dissolve his order, saying new test data on Flint water shows “amazing progress ... in terms of reducing lead levels” and the city’s water system “was in compliance” with the federal Lead and Copper Rule.

But officials with the Natural Resource Defense Council say the state’s claim that new evidence shows they are in compliance with the federal Lead and Copper Rule is “misleading” and “inaccurate.”

On Dec. 2, researchers said the quality of Flint’s water was improving and might meet federal lead standards. But Virginia Tech professor Marc Edwards, a key national expert monitoring the city’s tainted-water crisis, said it may never be safe enough to drink until all lead pipes are pulled from the ground.