Frustrated Flint residents are turning to the courts for relief from water crisis
Legal experts believe fair monetary compensation for victims is unlikely
The discovery of high lead levels in the tap water of Flint, Michigan, has unleashed a floodgate of lawsuits on behalf of aggrieved residents.
Most cases emphasize the youngest victims of the man-made environmental calamity: the scores of children whose lead exposure could lead to maladies ranging from neurological disorders, such as seizures, to language and learning disabilities.
“I don’t think you could come up with a much more sympathetic group,” said Wayne State University law professor Peter Henning, a former federal prosecutor.
The villain, to many observers, could not be more unsympathetic: The crisis surfaced after Flint officials switched the city water source from Lake Huron to the Flint River to save money. The polluted river water corroded old pipes and leached lead into tap water, according to a Virginia Tech water quality study.
Lead levels in children nearly doubled, and in some neighborhoods tripled, according to a study.
“This case is only the tip of the iceberg,” attorney Hunter Shkolnik said this week after filing a federal lawsuit against city and state officials. “There are many, many more children in this community that need attention. This cannot wait any longer.”
Frustrated by what they see as a failure to reach an immediate solution to the crisis, residents and their attorneys are increasingly turning to the courts, though legal experts believe fair monetary compensation is unlikely. Here are five things to know:
1.How many lawsuits?
More than a dozen lawsuits, including several class-action suits, have been filed in state, county and federal courts in Michigan, according to Henning and other legal experts. The range of remedies sought include monetary compensation for lead poisoning and refunds for water bills.
On Monday, a federal lawsuit was filed on behalf of seven families accusing city and state officials of downplaying the situation while residents suffered.
The class-action suit is “on behalf of the tens of thousands of Flint residents” against the city of Flint, the state of Michigan, Gov. Rick Snyder and several other officials for allegedly violating the Safe Drinking Water Act.
The families in the suit allege their children have been poisoned by “high levels of lead and copper in bloodstreams, brains, bones and other organs.” The defendants acted recklessly and with negligence, according to the suit.
The plaintiffs said authorities failed to take the appropriate measures to eliminate the danger of highly corrosive, lead-contaminated water, a danger they were made aware of as early as 2014.
The alleged misconduct led to “physical and psychological injuries, learning and other permanent disabilities, weight loss, stunted growth, anemia, headaches, abdominal and other pain, mental anguish, emotional distress, the cost of medical, educational, and rehabilitation expenses, and other expenses of training and assistance, loss of income and earning capacity, property damage, destruction of water service lines, and devaluation of property damages,” according to the suit. The plaintiffs seek an unspecified amount in damages.
In November, a group of residents filed a separate class-action lawsuit in U.S. District Court accusing state and city officials of knowing the water risks and exposing residents anyway. Another suit under the Safe Drinking Water Act was filed in January by the Natural Resources Defense Council.
Also in January, another class-action lawsuit in Genesee County Circuit Court questioned why city residents have continued to be billed for water they cannot drink.
2. Who’s being sued?
Lawsuits have been filed against Michigan and the city of Flint, as well as various state and city officials and employees involved in the decision to switch the source of the drinking water and those responsible for monitoring water quality.
Snyder’s office has declined to comment on the pending litigation.
“We are focused on solutions for the people of Flint and we want to stay focused and avoid any distractions,” a representative said this week.
The state Department of Environmental Quality also said it does not comment on litigation.
The financially strapped city was governed by a state-appointed emergency manager at the time it switched the source of its water supply.
In January, Snyder declared a state of emergency and the city switched water suppliers again, but city residents still must rely on bottled water for drinking, cooking and other purposes.
Last weekend, the city began its effort to replace lead-contaminated piping throughout the city.
3. Is monetary compensation likely?
Flint residents face considerable hurdles to obtaining fair monetary compensation from the courts, according to experts.
“As far as getting compensation, I think that’s very unlikely,” Henning said.
“This requires a legislative solution rather than a judicial one,” he said of the crisis. “You’re going to need either the state or federal government or some combination to step in and essentially cut through all of this. Otherwise, you have a lot of procedural hurdles.”
A major hurdle to compensation is the legal doctrine known as “sovereign immunity,” which shields state and federal governments from most lawsuits, according to experts.
Michigan officials will likely argue that providing water to residents qualifies as a “core government function,” legally shielding them from liability, according to Nora Freeman Engstrom, a professor and expert on tort law at Stanford University. Traditional tort suits against the state rarely succeed.
Another hurdle is the legal element known as “specific causation,” according to Engstrom. The plaintiff must show not only that leaded water can theoretically cause a particular impairment but also that the lead exposure caused his or her particular injury, she said.
“In a lead contamination case, there’s always the question: Is this kid failing to thrive because of her lead exposure? Or, might it be the consequence of something else entirely (maybe unlucky genetics, a chaotic home environment, or her mom’s poor prenatal care)?” she told the Stanford Legal Aggregate.
“Second, even if a plaintiff can convince a jury that she is suffering from lead poisoning, the defendant might be able to sow doubt concerning whether the lead that caused her impairment came from the Flint water supply and not another source. This might (not) be hard, because kids can be exposed to lead in lots of places, including the soil, toys, dust and chipped paint.”
And while the city of Flint is not immune from liability, its financial troubles make it difficult for the plaintiffs to collect monetary damages.
“The city doesn’t have any money,” Henning said. “That’s kind of the root of all the evils here.”
Many families may not receive a cent.
“I would not be at all surprised if, when the dust settles, there are many children in Flint, Michigan, whose lives have been dimmed and diminished by their wholly preventable lead exposure – and who never, actually, recover a penny.”
4. What can the legal system do?
Some government officials can be successfully sued in federal and state courts for damages if the plaintiffs can prove their constitutional rights were violated, legal experts said.
Engstrom said that one lawsuit accuses the state of violating residents’ 14th Amendment right to “bodily integrity” by supplying the contaminated water. She said other lawsuits accusing Michigan of violating the federal Safe Drinking Water Act will likely result in greater oversight but not monetary damages.
State and federal criminal investigations could result in charges against officials, which would provide accountability. And some of the civil suits may ensure that Flint’s water problems are fixed, according to Engstrom and others.
“If the courts can come in and under the federal Safe Drinking Water Act make sure that the pipes are cleaned up faster than they would otherwise be, that’s really valuable,” Engstrom said. “If the criminal court comes in and prosecutes some folks who did wrong and ensures accountability, that’s really valuable.”
She added, “But, gosh, if people are hurt and … their life is diminished because of somebody’s bad actions, doesn’t our society say that who we call the tortfeasor (defendant) ought to make that person whole and isn’t that going to be really difficult here? And the answer is absolutely.”
5. Is there a political solution?
Henning calls it the “Feinberg solution,” referring to attorney Kenneth Feinberg, who is known for handling high-profile victim compensation funds.
Among other cases, Feinberg’s firm has been hired or appointed to coordinate compensation for victims of the September 11 terrorist attacks, Virginia Tech shootings, BP oil spill and Boston Marathon bombings. He was recently tapped by Volkswagen to head a fund to compensate owners of its diesel cars that cheat on emission tests.
Still, taxpayers would end up footing the bill for the Flint debacle, according to Henning.
Said Engstrom, “I’d be all for the government stepping up to offer compensation to those injured by this calamity – given the gridlock in Washington, I’m not holding my breath.”