Schuette backs getting bottled water delivered in Flint

Jonathan Oosting, and Jennifer Chambers

Lansing — Michigan Attorney General Bill Schuette is siding with Flint residents in a lawsuit against the state and city, asking a federal court to uphold a contested order requiring officials to provide bottled water delivery to any home without a verified filter.

Schuette’s office filed a request for leave to file an amicus brief in the case against Treasurer Nick Khouri and other state officials.

Gov. Rick Snyder’s administration has fought the lawsuit and bottled water delivery order, arguing it is “overbroad” and the city lacks the financial resources to comply with it.

“It puts us a little bit at odds with the state, but I think we’re doing obviously what’s in the best interest of the people and what’s supported by the law,” Special Assistant Attorney General Noah Hall told The Detroit News. He said the court is “all but certain” to grant his request for permission to file a brief urging the court to uphold the order.

“Like everyone else, we’re hoping this injunction will only need to be short lived and a more reliable, better, more dependable system will be in place for residents of Flint soon enough,” Hall said. “But it’s been two-and-a-half years they haven’t gotten (safe) water coming out of their tap.”

The legal action is the latest test of the “firewall” established by Schuette, whose office is investigating the Flint water crisis but also fulfilling a constitutional obligation to defend state officials in the bottled water case and others.

The attorney general’s office filed the motion on “behalf of the people of the state of Michigan” through the special counsel’s office, Hall said.

“The attorney general himself, Bill Schuette, has in effect put himself on our side of the wall, the prosecution-plaintiff side,” Hall said. “And it actually works both very smoothly and fairly efficiently, and absolutely justly and fairly.”

U.S. District Judge David Lawson issued a preliminary injunction on Nov. 10 directing the state 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.

State officials have fought the order for nearly the last 60 days, first filing an emergency motion with the U.S. Sixth Circuit Court of Appeals to block the order.

Hall confirmed the pending filing just hours before Snyder was set to deliver his seventh annual State of the State address, which he used last year to focus almost exclusively on the Flint water crisis and his plans to “fix” it.

Testing shows lead levels in Flint water are on the decline, but officials continue to advise resident not to drink tap water without a filter.

Snyder spokesman Ari Adler said Tuesday the state is already delivering bottled water to Flint residents “when requested.”

“In addition, filtered water has been determined by government and independent water quality experts to be safe for all populations for drinking and cooking,” Adler said. “The case is now under mediation and we are looking forward to continuing a cooperative and productive dialogue with all parties.”

Hall, an environmental law and water law expert from Wayne State University, said he is no fan of bottled water and the stress additional bottles could put on local recycling systems.

“The bottom line is, people need safe water brought to their homes, and if it’s not coming out of their faucet, it needs to come in a bottle, and either way the state and government need to provide its people. That’s how the system works,” he said.

Officials with the Natural Resources Defense Council, which sued the state on behalf of Flint residents, declined comment Tuesday on Schuette’s decision.

On Dec. 16, the federal appeals court refused to halt Lawson’s order while the state and city appealed it.

In a 2-1 decision, the appeals court said 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.

State and city officials also asked Lawson to stay his own order. He denied their request.

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.

While the state appealed, Lawson again ordered on Dec. 2 that Michigan and Flint officials comply with his court order to deliver door-to-door bottled water to Flint residents, saying a delay would perpetuate “the very irreparable harm the preliminary injunction is designed to address.”

Lawson wrote the state has “the mistaken notion” the door-to-door delivery of bottled water will go to all Flint residents.

“The main thrust of the ordered relief is the proper installation and maintenance of tap water filters. For those homes that have properly installed and maintained water filters in place — which is the vast majority of residences, if the state defendants’ witnesses are to be believed — bottled water delivery is not necessary and was not ordered,” Lawson wrote in an order filed late Friday in U.S. District Court in Detroit.

Lawson said simply handing out water filters does not ensure they are effective in reducing lead content of drinking water to an acceptable level.

On Dec. 21, attorneys representing Flint residents filed an emergency motion asking Lawson to force the state of Michigan and the city of Flint to comply with his court order to deliver bottled water door-to-door in Flint.

Officials with the Natural Resources Defense Council said the state was ignoring the order requiring immediate action to secure safe drinking water for Flint residents.

Michael J. Steinberg, legal director for ACLU of Michigan, said the state has thumbed its nose at the people of Flint by taking away their local democracy and poisoning their water more than two years ago.

According to status reports filed on Dec. 16, the state and city have failed to verify filter installation in many homes, have not expanded their limited water delivery program, and had not mailed a public notice required by the court nearly six weeks ago.

On Dec. 22, attorneys for state officials said they haven’t acted exactly as ordered by Lawson because they faced “financial, logistical and practical difficulties” in doing so.

In their filing, the attorneys note the state “continues to deliver water to residents who need it,” visiting between 1,440 and 1,550 homes each week in response to calls from its 211 water response service.

Earlier this month, Anna Heaton, spokeswoman for Gov. Rick Snyder, said the teams of state workers and Flint residents who perform filter installation, maintenance and education have visited more than 13,000 homes since the judge’s order was issued in November, and the state continues to ramp up those efforts.

Recruitment of Flint residents for these jobs is ongoing, with the goal of 160 outreach workers trained and working in each neighborhood by the end of January, Heaton said.

Requests for delivery of bottled water and filters are met within 24 hours, Heaton said. Nine water distribution sites remain open with their regular hours throughout the holidays so that every resident who needs resources can obtain them.

In the state’s report issued Dec. 16, 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 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, state officials reported to Lawson.

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

In a massive 452-page motion filed in November, attorneys for Khouri and the Flint Receivership Transition Advisory Board argued 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 orthophosphate to coat its pipes and flush out lead particulates, attorneys for the Snyder administration wrote in their motion.