Judge dismisses challenge to Michigan's toughest-in-nation lead rules

A Michigan Court of Claims judge has dismissed a lawsuit challenging the state’s toughest-in-the-nation lead and copper rules that were created in the wake of the Flint water crisis.

The ruling comes the same month the state has started to receive results from new testing procedures required by the lead and copper rules developed under former Gov. Rick Snyder.

In his Friday ruling, Judge Christopher Murray dismissed the challenges to the constitutionality of the law and the justification of the strict rules, noting that the arguments “sound more in the nature of matters that could have — and in fact appear to have been — addressed during the public comment period.”

The argument made by water authorities “sound in the nature of disagreements with the decision reached by (Michigan Department of Environmental Quality), not that MDEQ failed to follow the requisite procedures,” Murray said.

The lawsuit filed by Detroit, Livonia, the Detroit region’s Great Lakes Water Authority and the Oakland County Water Resources commissioner argued the new rules had no “reasoned explanation or justification” and imposed unnecessary costs on water supplies without proper consideration of funding. The rules, they said, also forced water authorities to use public money to replace private lead service lines leading from the curb to the home.

The Great Lakes Water Authority argued any comment on the decision would be premature and said the judge's ruling was not a final order in the case. 

"Earlier this week, the court granted the coalition’s motion to amend the complaint and the case will continue on these added complaint allegations," the authority said in a Friday statement. 

But the Oakland County Water Resources Commission does not plan to appeal the ruling, Commissioner Jim Nash said. The parties to the lawsuit have been working with the state Department of Environment, Great Lakes and Energy, formerly known as the DEQ, to come up with a solution that would protect water authorities from hiking user rates too high or becoming subject to a lawsuit for their work on private lines, he said.

Communities are already working on implementing the rules "as fast as we can," he added.

"The whole point of this lawsuit was to get in the door, to sit down with them and talk about the concerns we had," Nash said. "That’s what we accomplished.”

Nash said he hopes Attorney General Dana Nessel will issue an opinion on the constitutionality of the rules to shield municipal water supplies from lawsuits arguing the work on private service lines is unlawful. 

"The local communities should not be the one to pay for these legal costs for a state rule," Nash said. 

An EGLE spokesman Friday said the agency would continue to work "with community water systems around the state to see that lead service lines are replaced and the risks of lead exposure to vulnerable populations like children are reduced."

Snyder created the new lead rules in response to the Flint lead-contaminated water crisis. They will lower the state action level for lead to 12 parts per billion by 2025, down from the federal standard of 15 ppb. It also directs communities to locate, prioritize and replace all lead service lines by 2040.

Some communities called the rule an unfunded mandate that will cost more than $2 billion over the next two decades, even as cities, villages and townships struggle to fund other local water infrastructure improvements.

Michigan Gov. Gretchen Whitmer earlier this month warned residents that some results from the new testing method may come back higher than past tests. That increase, she warned, didn't necessarily reflect higher lead levels, but a new testing procedure that requires samples from the first and fifth liters of water taken from a faucet.

In his decision, Murray said the state did give an appropriate justification for the lead and copper rules and attempted to estimate costs based on the Lansing Board of Water and Light’s experience replacing the city’s lead service lines.

Murray said the water suppliers’ complaints regarding the rule-making process appear to reflect discontent with the eventual rules that were implemented, more than a flawed procedure to arrive at the rules.

Further, Murray said, there are no rules that prohibit the state from working on mixed public and private service lines.

"...Nothing prevents the water supply — as it freely acknowledges — from spreading out replacement costs and imposing the costs system-wide, on all users of the water supply," the judge wrote. "In this scenario, the service lines are not given away for free."

The supplemental budget approved by lawmakers earlier this month includes $3 million to help residents and local communities prepare for the new lead rules. Whitmer’s budget proposal for the next fiscal year includes $120 million for lead service line replacement and $60 million for hydration stations in schools. 

The Michigan Senate, by contrast, proposed an additional $25 million for Lead and Copper Rule implementation in fiscal year 2020. The House did not include the funding in its budget.

eleblanc@detroitnews.com

(517) 371-3661