Flint decision comes after ‘breathtaking’ failure

Jonathan Oosting
Detroit News Lansing Bureau

Detroit federal Judge David Lawson on Tuesday ordered Flint’s City Council to choose a long-term water source for the city by Monday after it spent more than three months refusing to make a decision.

In a 29-page opinion, he took Flint’s council to task for sitting on an April agreement backed by Mayor Karen Weaver, the state and the federal Environmental Protection Agency that would see the city stay on the Detroit area water system through a new 30-year contract with the Great Lakes Water Authority.

“The failure of leadership, in light of the past crises and manifold warnings related to the Flint water system, is breathtaking,” Lawson wrote.

The Michigan Department of Environmental Quality sued the city in late June after Flint City Council ignored the state’s deadline for a water supply decision, arguing the delay would “cause an imminent and substantial endangerment to public health in Flint.” The council, in hearing and filings, told Lawson it needed more time to examine the best deal.

The city must choose a long-term water source that satisfies an emergency order from the EPA and sign all related agreements to implement that decision on or before Monday, Lawson ruled.

He wrote the state has demonstrated potential for “irreparable injury” in Flint and said there is an urgency to act because the city’s short-term water agreements have expired and the long-term agreement is time sensitive.

“The City Council has not voted on the negotiated agreement, it has not proposed an alternative, and the future of Flint’s fragile water system — its safety, reliability, and financial stability — is in peril,” he concluded. “Because of the city’s indecision, the court must issue its ruling.”

Lead contaminated Flint’s water after Gov. Rick Snyder-appointed emergency managers switched to the Flint River for city water in April 2014 as a prelude to switching to the regional Karegnondi Water Authority. The state switched back to the Detroit area water system in mid-October 2015 and has since used the Great Lakes authority’s treated water on an interim basis.

The judge’s order likely ensures that council will approve the proposed contract with the Great Lakes authority that it had been resisting though it was negotiated with Weaver’s approval. The city could choose to go with the Karegnondi authority, but the state said tens of millions of dollars in extensive repairs and updates need to be made to the inactive Flint water plant and would take three and a half years to complete. Karegnondi has backed the Great Lakes contract.

It was unclear Tuesday how the nine-member Flint council would respond. Council member Eric Mays said he would seek a special council meeting but was concerned about the “short time frame” to comply with the order.

Mays said he has urged what he called a recalcitrant council to decide on the water source before the decision was made for them.

“They’ve sat on their hands for over 60 days and tried to blame others for not doing what they should do,” he said Tuesday. “They didn’t have the political will to vote ‘yay,’ ‘nay’ or come up with an alternative.”

What prompted judge’s order

The judge’s order represents a big victory for the administration of Gov. Rick Snyder. Legal experts initially predicted the state would face difficulties in getting Lawson to apply federal and state safe drinking water laws in what amounts to a political decision.

But Nicholas Schroeck, an environmental law professor at Wayne State University, said the risk to public health and the financial stability of the water supply system persuaded Lawson to side with the state and issue a pre-emptive order.

“You can sense the frustration in his order that a long-term agreement for water supply had not been reached,” Schroeck said in a Tuesday email. “... The risk here was too great for the judge to continue to wait it out.”

In early August, Lawson appointed Troy-based attorney Paul Monicatti to try to mediate between the city and the state DEQ. But the sides couldn’t settle their differences, and the judge indicated in late September that he was growing tired of the City Council’s arguments.

In a hearing, Lawson said extending the city’s interim contract with the Detroit area water system beyond 30 days could result in funding problems.

“It seems to me that inaction is inviting intervention,” Lawson said at the time.

The Weaver administration analyzed various long-term water options for Flint, and the mayor said Tuesday the Great Lakes agreement “proved to be in the best interest of public health by avoiding another water source switch, which could result in unforeseen issues.”

Weaver, in a statement, praised Lawson for “recognizing there is no need to wait” on a decision she said should have been made months ago.

Spokeswoman Tiffany Brown said that DEQ is “pleased” with Lawson’s ruling and “remains committed to working with the City of Flint to implement a plan once a source water determination has been finalized to ensure compliance with the Safe Drinking Water Act.”

The Great Lakes Water Authority said in a statement it was poised to serve Flint.

“The GLWA remains ready to serve the city of Flint with water of unquestionable quality through a long-term agreement,” GLWA officials said.

What state agency argued

Lawyers for the state argued that repeated demands for the council to approve a 30-year contract or select an alternative source went unanswered. In court, the state used an EPA order that originally compelled the state to address Flint’s water issues as a justification for a court intervention against Flint’s council.

“The City Council’s failure to act will result in at least a 55-63% increase in the water rate being charged to Flint residents, create an immediate risk of bankrupting the Flint water fund, will preclude required investment in Flint’s water distribution system, and create another imminent and substantial endangerment to public health in Flint,” said the original motion.

A top Snyder aide previously said stalling the contract decision costs Flint an extra $600,000 a month because it pays for two sources — Great Lakes, from which it currently gets its treated water, and Karegnondi, from which it contractually would get water by 2019 to 2020.

Under the 30-year deal with Great Lakes, Flint would no longer have to make payments to Karegnondi.

In an answer to the state’s complaint filed Aug. 8, lawyers for the Flint council argued other options exist, although the court filing did not specify what they are.

The council argued “MDEQ has failed to state a claim upon which relief may be filed” and that “the alleged claims … are not ripe for judicial resolution,” wrote attorneys Peter and Joseph Doerr, who represent the council.

Staff Writer Leonard N. Fleming contributed.