Courthouse News reports: A federal judge ruled Michiganders can sue the federal government over its response to Flint’s water crisis, finding the Environmental Protection Agency knew city and state officials were not properly warning residents about the lead-contaminated water.
U.S. District Judge Linda Parker on Thursday denied the government’s motion to dismiss a consolidated pair of class actions with a total of 4,884 plaintiffs.
The case stem from Flint’s decision to change the city’s water supply from the Detroit Water and Sewage Department to the Flint River, which caused excessive levels of lead and copper to enter the water supply.
Residents complained of skin rashes, hair loss, instances of E. coli and Legionnaire’s disease, and the foul smell and taste of the water.
“While this court will not decide today the issue of ultimate liability,” Parker wrote, “it can today state with certainty that the acts leading to the creation of the Flint water crisis, alleged to be rooted in lies, recklessness and profound disrespect, have and will continue to produce a heinous impact for the people of Flint.”
In the lawsuits, the residents accused the Environmental Protection Agency of failing to warn residents about the harmful effects of the water, as well as failure to enforce the Safe Drinking Water Act.
“Specifically, plaintiffs claim the EPA failed to timely investigate, provide technical assistance, obtain compliance, or commence a civil action,” Parker explained.
The government argued it is not liable under the discretionary function exception of the Federal Tort Claims Act.
Parker disagreed, finding the EPA knew the river was “highly corrosive” and that children and pregnant women were at risk.
“Further, the EPA knew that [the Michigan Department of Environmental Quality] and Flint officials were not warning Flint’s residents that they were being supplied lead-laced water,” the judge wrote.
She added that the EPA also learned that state and local officials were misleading residents into believing that the water supply was fine and that plumbing in their homes was to blame.
“These lies went on for months while the people of Flint continued to be poisoned,” Parker wrote.
For that reason, she stated, the discretionary function exception does not bar the residents’ class-action claims.
Parker also ruled against the government on its argument that the residents’ negligence claims are barred by the FTCA’s misrepresentation exception.
“The misrepresentations alleged in the present matter were not of a financial or commercial character,” Parker wrote. “Moreover, the gravamen of plaintiffs’ complaint is that the EPA was negligent in its performance of operational tasks, that being to respond to residents’ complaints and provide them with guidance.”
In addition, the judge ruled that the residents asserted a valid state-law claim under the good Samaritan doctrine.
“Plaintiffs here allege justifiable detrimental reliance on the EPA’s representations,” Parker wrote. “As a result of the EPA’s assurances, plaintiffs were induced ‘to forgo other remedies or precautions against the risk (e.g., use bottled water).’”