Judge rules suit to force new Flint pipes can proceed

Chad Livengood
Detroit News Lansing Bureau

Lansing — A federal judge ruled Thursday a lawsuit seeking to force state officials and the city of Flint to replace lead-leaching water pipelines can proceed.

U.S. District Judge David M. Lawson rejected arguments by state and Flint lawyers who said the Natural Resources Defense Fund’s Safe Drinking Water Act lawsuit should fall solely under the U.S. Environmental Protection Agency’s jurisdiction.

Lawson said the lawsuit can proceed against state Treasurer Nick Khouri and members of Flint’s Receivership Transition Advisory Board “because they exert control over the financial decisions affecting the operations of the Flint water system, and the complaint states viable claims for relief.”

Members of Flint’s Receivership Transition Advisory Board, or RTAB, are appointed by Gov. Rick Snyder, as is Khouri.

The lawsuit also named former Flint City Administrator Natasha Henderson, who was effectively left in charge of city departments when Flint’s last emergency manager, Jerry Ambrose, left office in May 2015. Henderson was city administrator from February 2015 until Feb. 12, when Flint Mayor Karen Weaver fired her.

Ambrose worked for Khouri and Snyder under the emergency manager law.

Lawson rejected arguments by state attorneys that judicial enforcement of the federal Safe Drink Water Act would conflict with the EPA’s administrative enforcement of the law.

“The danger of creating inconsistent obligations for the defendants is relatively low in this case because the EPA and the plaintiffs are seeking the same result: safe drinking water for the residents of Flint,” Lawson wrote in a 25-page ruling.

“This does not appear to a case that will require intricate fact finding or the need for special administrative expertise,” the judge added. “Nor does there appear to be an administrative program that may be upset by the court’s decisions.”

The American Civil Liberties Union of Michigan, Flint’s Concerned Pastors for Social Change and Flint resident Melissa Mays also are plaintiffs in the lawsuit, which was filed in January in U.S. District Court - Eastern District of Michigan.

“I hope it puts pressure on the relevant parties to replace the lead service lines in an accelerated timetable … because there hasn’t been that commitment yet,” said Dimple Chaudhary, senior attorney for the Natural Resources Defense Council.

Lawson held a May 13 hearing over the state's and Flint's motions to have the lawsuit dismissed.

Michael Murphy, an assistant attorney general representing Khouri and members of the Flint receivership board, said the court should defer to the EPA’s emergency order issued on Jan. 21 in the wake of widespread lead-contamination in Flint’s water system.

“The EPA is on the ground managing the water situation. They are doing this on a daily basis,” Murphy told the judge. “We’re doing what we are told to do.”

The lawsuit is among a multitude of civil cases the state and Flint face for the city’s disastrous switch to Flint River water in April 2014 under the watch of a Snyder-appointed emergency manager.

“We’re elated that the court has rebuffed efforts by state and city officials to skirt their legal and moral duty to provide Flint residents with safe drinking water,” said Michael J. Steinberg, legal director of the ACLU of Michigan, in a statement.

Flint switched back to Detroit’s Lake Huron water system in October 2015 after state officials acknowledged high lead levels in the city’s drinking water.

In additional to replacement of lead service pipelines, the plaintiffs are seeking medical and health care for Flint residents sickened by the city’s lead-contaminated water, Chaudhary said.

The plaintiffs also want Flint to make all necessary improvements to the municipal water system so that the city’s drinking water safe to consume without faucet filters, Chaudhary said.

“We think this continues to be a public health emergency and there’s a lot to be done to ensure this crisis is addressed and it doesn’t happen again,” Chaudhary told The Detroit News.

Representatives with the city of Flint and state Treasury could not immediately be reached for comment late Thursday.

clivengood@detroitnews.com

(517) 371-3661

Twitter: @ChadLivengood

Staff Writer Jennifer Chambers contributed.