By Madison Woschkolup
On Tuesday, January 21, 2020, the U.S. Supreme Court denied certiorari from Flint, Michigan city officials.[1] This decision means that Flint residents may sue state and local officials over their role in the Flint water crisis.[2] The suit has been ongoing; government officials argue that the City is protected by sovereign immunity and lower courts have consistently ruled to the contrary.[3]
The Flint Water Crisis
The litigation stems from the Flint water crisis, which began in April 2014 when Flint, MI switched water sources from Detroit’s system to the Flint River.[4] The Flint River’s water quality is historically poor due in-part to unregulated discharges into the river as well as a sewage spill in 1999.[5] The City’s change to use Flint River’s water was to reduce costs and many individuals voiced concerns prior to the switch.[6] Despite the warnings, the water supply officially switched on April 25, 2014.[7]
Within weeks, residents reported changes in the water’s color, smell, and taste;[8] and within months residents reported rashes––predominately affecting children.[9] Subsequently, it was discovered that Flint water was nineteen times more corrosive[10] than Detroit water.[11] In fact, the water from Detroit had been treated to prevent corrosion while the Flint River water had not.[12] The Flint River water was corroding the pipes within the water distribution system, causing lead to seep into the Flint’s already contaminated water supply.[13] During the summer of 2014, less than five months after the switch, Flint issued three boil-water advisories within a twenty two day period.[14] Eventually in October 2015, Flint switched back to Detroit water but the damage to Flint’s citizens had already been done.[15]
Contrary to state and local officials’ assurances that the water was safe, subsequent studies revealed otherwise. One study conducted by scientists at Virginia Tech revealed water in one resident’s home with lead levels as high as 13,300 parts per billion (ppb).[16] For reference, the EPA limit is 15 ppb and water contaminated with 5,000 ppb is classified by the EPA as hazardous waste.[17] Another study revealed that the number of children with elevated lead levels in their blood was almost double than before the switch, and in some places that number had even tripled.[18] It was reported that up to 40% of Flint homes had elevated lead levels.[19]
Litigation
The suit commenced in 2017 by Flint, Michigan resident Shari Guertin who brought forth fifteen claims against twenty one defendants, including the State of Michigan, the City of Flint, state departments, and state and city officials.[20] Guertin argued that named defendants are responsible for the harm suffered by her and her child stemming from the contaminated drinking water.[21] The governmental defendants resisted and argued that they were entitled to Eleventh Amendment Immunity.[22] Noting that the “bar of the Eleventh Amendment to suit in federal courts extends to States and state officials . . . but does not extend to counties and similar municipal corporations,” the District Court for the Eastern District of Michigan dismissed Guertin’s claims with respect to the State of Michigan, the state departments, and the state employees in their official capacities only.[23] The Court ultimately dismissed all claims except one.[24]
The remaining defendants appealed to the U.S. Court of Appeals for the Sixth Circuit.[25] Guertin’s remaining claim is that defendants violated Guertin’s and her child’ right to bodily integrity[26] by exposing them to lead contaminated water and then concealing it.[27] On January 4, 2019, the Sixth Circuit rendered an opinion.[28] The Court affirmed in-part the district court’s decision to deny the defendants’ motion to dismiss based on qualified immunity.[29] However, the Court reversed the district court’s decision for five of the remaining defendants, stating that Guertin’s complaint failed to allege a constitutional violation against them.[30]
The Sixth Circuit also reexamined whether the City of Flint was entitled to Eleventh Amendment immunity,[31] considering U.S. Supreme Court caselaw[32] which clearly demarcates the line between states and their political subdivisions for purposes of immunity.[33] While Flint concedes that municipalities do not enjoy sovereign immunity, it argues that because at the time of the crisis it was so financially distressed, the State of Michigan had taken over its day-to-day operations and it was thus acting as “an arm of the state.”[34] The Sixth Circuit held that Flint did not meet its burden to show that it was acting as an “arm of the state” and affirmed the district court’s holding that the City of Flint is not entitled to 11th Amendment immunity.[35]
City officials appealed once more,
and the Supreme Court denied certiorari without comment on January 21, 2020.[36] While the initial complaint was filed by
Guertin, it has grown to include thousands of other plaintiffs affected by the
water crisis who argue they were deprived of their right to bodily integrity.[37] Michael Pitt, co-lead counsel on a class
action lawsuit also stemming from the crisis, stated in response to the
decision “it’s time for the people of Flint to start feeling like they are
going to get their day in court, this just moves the entire process closer to
that day.”[38]
[1] Harper Nedig, Supreme Court Allows Lawsuit Against Flint City Officials to Advance, The Hill (Jan. 21, 2019), https://thehill.com/regulation/court-battles/479128-supreme-court-allows-lawsuit-against-flint-city-officials-to-advance.
[2] Id.
[3] See City of Flint v. Guertin, No. 19-205, 2020 U.S. LEXIS 603 (Jan. 21, 2020); Guertin v. Michigan, 912 F.3d 907, 915 (6th Cir. 2019); Guertin v. Michigan, No. 16-cv-12412, 2017 U.S. Dist. LEXIS 85544 (E.D. Mich., June 5, 2017).
[4] Susan J. Masten et al., Flint Water Crisis: What Happened and Why?, 108 J. Am. Water Works Ass’n 22 (2016).
[5] Tim Carmody, How the Flint River got so Toxic, Verge (Feb. 26, 2016), https://www.theverge.com/2016/2/26/11117022/flint-michigan-water-crisis-lead-pollution-history.
[6] Masten et al., supra note 4.
[7] Flint Water Crisis Fast Facts, CNN (Dec. 13, 2019), https://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/index.html.
[8] Masten et al., supra note 4.
[9] Id.
[10] The water from the Flint River was more acidic than the water from Detroit and Flint’s water system pipes were old. As the more acidic water flowed through the pipes, the rust began to get stripped away, resulting in discoloration and lead contamination in the water. Ben Panko, Scientists Now Know Exactly How Lead Got Into Flint’s Water, Smithsonian Magazine (Feb. 3, 2017), https://www.smithsonianmag.com/science-nature/chemical-study-ground-zero-house-flint-water-crisis-180962030/
[11] Flint Water Crisis Fast Facts, supra note 8.
[12] Id.
[13] Masten et al., supra note 4
[14] Id.
[15] Flint Water Crisis Fast Facts, supra note 8.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] See Guertin v. Michigan, No. 16-cv-12412, 2017 U.S. Dist. LEXIS 85544 (E.D. Mich., June 5, 2017).
[21] See id.
[22] See id.
[23] Id. at *44–50.
[24] See id.
[25] Guertin v. Michigan, 912 F.3d 907, 915 (6th Cir. 2019).
[26] Id. at 918 (explaining that the liberty interests secured by the Due Process Clause include the right to bodily integrity, or “the right to be free from . . . unjustified intrusions on personal security”).
[27] Id. at 915.
[28] See id.
[29] Id.
[30] Id. at 916.
[31] See id.
[32] See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (internal citations omitted); see also Jinks v. Richland Cty., 538 U.S. 456, 466 (2003).
[33] Id. at 936.
[34] Id.
[35] Id. at 937.
[36] Ron Fonger, U.S. Supreme Court Won’t Hear Case Related to Flint Water Crisis, M Live (Jan. 21, 2020), https://www.mlive.com/news/flint/2020/01/us-supreme-court-wont-hear-case-related-to-flint-water-crisis.html.
[37] Danielle Wallace, Supreme Court Pushes Forward Flint Water Crisis Victims’ Case, Says City Officials Not Immune to Prosecution, Fox News (Jan. 22, 2020), https://www.foxnews.com/us/supreme-court-flint-michigan-water-crisis-victims-officials-not-immune.
[38] Vanessa Romo, Supreme Court Allows Flint Water Lawsuits to Move Forward, Officials not ‘Immune’, NPR (Jan. 21, 2020), https://www.npr.org/2020/01/21/798331185/supreme-court-allows-flint-water-lawsuits-to-move-forward-officials-not-immune.
