The Flint, Michigan water crisis is one of the most disheartening developments in our Nation's public affairs in the last decade. It is all too easy to conclude that a driving force is an utter and sinful disregard by Michigan state government officials for the residents of a mostly poor, largely black distressed city. The Sixth Circuit gives a watered-down recitation of the background of this crisis in its recent decision, Boler v. Earley, where, somewhat surprisingly, it reverses a district court's dismissal of the residents' damages claims for violation of their constitutional rights.
Beginning in the 1960's the City of Flint began obtaining its water from the Detroit Water & Sewerage Dept, which in turn drew the water from Lake Huron. Flint commissioned a study in 2011 to review alternative water sources. That study made two important findings: (1) the cheapest and best long-term solution would be for the city to join a water supplier in the process of being established, the Karegnondi Water Authority (KWA); and, (2) if the Flint River were used as a water supply, it "would need to be treated to meet current water safety regulations." What the court describes as city "officials" decided to switch from Detroit to KWA, but there was a problem: KWA wasn't up and running yet and an alternative, temporary water source was needed. There were two choices: Detroit (as the city had been doing) and the Flint River.
Darnell Early, an emergency city manager appointed by Michigan Governor Rick Snyder, changed the source of Flint's water supply from Detroit to the Flint River in April 2014. Although the 2011 study had concluded that any use of the Flint River as a water source would require "significant treatment, including the addition of anti-corrosive agents and treatment for microbial contaminants," these facts were ignored. As the Sixth Circuit so dryly states:
There is no evidence that the City upgraded the treatment plants or provided for additional safety measures prior to switching water supply sources on April 25, 2014.
Ignoring unpleasant facts can lead to problems as it did here: Flint residents "immediately began to complain that the drinking water 'smelled rotten, looked foul, and tasted terrible.'" But that was not all: testing in August -September 2014 detected coliform and e. coli bacteria in the water supply; the water was linked to Legionnaire's disease in October 2014; and General Motors stopped using the city water because it "was corroding its parts."
The Flint City Council voted in March 2015 to reconnect with Detroit and stop using the Flint River water. However, a new emergency manager and another one also appointed by Governor Rick Snyder, Gerald Ambrose, "overruled" the city government's vote. Three months later, in June 2015, "the EPA warned of high lead levels in the water." In October 2015, Ambrose, the emergency manager appointed by the Governor and with powers to override the city government, ordered that Flint reconnect with Detroit. But by then the damage was done: the Flint River water had so thoroughly corroded the city's water pipes that it dangerously elevated lead levels in the city's water and "Flint remains in a state of emergency."
The Michigan Civil Rights Commission, whose members are appointed by the Governor (although the opinion does not state whether they were all appointed by Governor Snyder), held hearings on the Flint water crisis in early 2016. The Commission ultimately issued a 130-page report that "determined that the response to the Flint water crisis was 'the result of systemic racism,' and that its finding was 'based on a plethora of events and policies that so racialized the structure of public policy that it systematically produced racially disparate outcomes adversely affecting a community that is primarily made up of people of color.'"
The plaintiffs, Flint residents and businesses, brought suit alleging a variety of violations of their constitutional rights including: impairment of the constitutional right to contract; deprivation of substantive and procedural due process; deprivation of property interests without due process or just compensation; intentional race discrimination in violation of the Equal Protection Clause; and, violation of their substantive due process right to bodily integrity, i.e, the right not to be poisoned by government officials.
The federal district court dismissed all of the claims and ruled that the plaintiffs were limited to the very limited remedies of the Safe Drinking Water Act, which allows only an injunction to be obtained and no recovery of damage or other monetary relief. After a lengthy and detailed analysis, the Sixth Circuit concluded that the Safe Drinking Water Act does not preclude the damages claims for constitutional violations and that "the Plaintiffs may thus move forward with their cases."
The Sixth Circuit's opinion was authored by Circuit Judge Jane Stranch and joined by Chief Judge Guy Cole and Circuit Judge Bernice Donald.
This case will go on for a while as will the cleanup of Flint's water supply. Justice does not loom, it just remains possible.
Robert L. Abell
www.RobertAbellLaw.com
