Filed Date: Jan. 27, 2016
Case Ongoing
Clearinghouse coding complete
On January 27, 2016, Concerned Pastors for Social Action filed this lawsuit in the U.S. District Court for the Eastern District of Michigan. The plaintiffs sued the state of Michigan and the city of Flint under the federal Safe Drinking Water Act, 42 U.S.C. §300j-8(a). The plaintiffs, represented by counsel from the ACLU, the Natural Resources Defense Council, and private counsel, sought declaratory and injunctive relief. Specifically, the plaintiffs requested that the court: (1) declare the defendants were in violation of their duties under the Safe Drinking Water Act, (2) enjoin the defendants from continuing to violate the Safe Drinking Water Act, (3) order that the defendants take all steps necessary to remedy their violations, and (4) grant any equitable relief the court deemed necessary to mitigate the health and medical risks faced by Flint residents.
The Safe Drinking Water Act stipulates that cities must mitigate lead in their water. Part of mitigation is taking account of the corrosiveness of the water; the more corrosive the water, the more it breaks down a protective layer surrounding the lead pipes that water is carried in. This protective layer is built up over time and nearly impossible to restore. According to the Safe Drinking Water Act, once a city reaches optimal corrosion treatment, it must maintain that optimal level of treatment.
The background of this case is that Flint is a struggling city; more than 40% of its residents live below the poverty level, and nearly 25% of its working age citizens are currently unemployed. In 2011, in response to the economic hardship Flint was facing, Governor Rick Snyder declared a financial emergency. He stripped the elected city officials of their power and installed an Emergency Manager to oversee the city in November 2011. Flint had historically received its drinking water from Detroit. Detroit’s drinking water is drawn from Lake Huron and treated with chemicals to make it less corrosive. Detroit’s water was “finished,” meaning it was safe to drink. In March of 2013, when the price of Detroit’s water rose, Flint's Emergency Manager decided to switch its drinking water source to a new water supply system. This system was based around a new water pipeline that was not scheduled to finish until June 2016.
According to the plaintiff’s complaint, the governor’s appointed Emergency Manager did not want to negotiate with Detroit over its higher prices to supply the city's water until the new pipeline could be finished. In early 2014, the Emergency Manager decided that the Flint River would be the city's water supply in the meantime. At that time, Flint had not treated its own water in nearly 50 years. The Flint River had known problems—swimming in the water was not recommended because of elevated levels of bacteria, fish in the river contained mercury (a neurotoxin) and PCB (a carcinogen), and local industrial and agricultural runoff caused high levels of contamination. In 2011, outside consultants had concluded that, in order to use the Flint River as a drinking water source, the city’s system would need $50 million in upgrades. The Flint Water System did not perform all of these upgrades. They did not undertake the research required by the Safe Drinking Water Act to learn how to optimize corrosion control. Nonetheless, on April 29, 2014, the Flint Water System began pumping Flint River water into the homes of its customers. It did not treat the water to reduce its corrosiveness at all. And it did not attempt to minimize the leaching of lead from its pipes.
The Michigan Department of Environmental Quality (MDEQ), the agency in charge of enforcing the Safe Drinking Water Act in Michigan, started notifying the city of violations of the Safe Drinking Water Act as early as December 2014. The city continued to tell its citizens that the water was safe to drink. After a customer started reporting health problems in her children in early 2015, the EPA, the MDEQ, and the city of Flint were notified of the high levels of lead in the city’s water. No one notified Flint’s residents. After Flint’s situation started garnering more attention, the city expanded its budget in order to buy water from Detroit. But the damage had been done. The lead of the pipe was exposed due to the corrosiveness of the Flint River water. Even purchasing water from Detroit could not help—the tap water still contained lead in actionable concentrations. Flint’s mayor declared a state of emergency in Flint in December of 2015. Governor Snyder declared a state of emergency in Genesee County on January 5, 2016.
On January 21, 2016, the EPA used its authority under the Safe Drinking Water Act to issue an Emergency Administrative Order directing the city of Flint, the MDEQ, and the state of Michigan to take certain remedial measures. Although Flint said it would comply with the EPA’s order, the other two necessary decisionmakers, Michigan and the MDEQ, challenged the EPA’s authority. Meanwhile, Flint’s drinking water still posed an imminent health threat to its citizens. This case was filed a week later, and was assigned, randomly, to Judge Mark Goldsmith.
On March 7, 2016, the state defendants filed a motion to dismiss. Primarily, they alleged that the sole authority over the Flint Water Crisis rested with the EPA and that the court did not have subject-matter jurisdiction. Additionally, the state defendants stated that they had Eleventh Amendment protection because the plaintiffs sought relief for “past violations” of the Safe Drinking Water Act; the designation of "past" violation matters because the exception to Eleventh Amendment immunity for state actors is only for prospective declaratory and injunctive relief. The state defendants also noted they were not “owners or operators” of the Flint Water System and therefore could not be sued under the Safe Drinking Water Act.
On March 24, 2016, the plaintiffs requested a preliminary injunction. They asserted that they would be likely to succeed on the merits because the defendants were still failing to adhere to optimal corrosion control or monitor the lead in the water. The named defendants were all “owners and operators” of the Flint Water System—even the state defendants because of their control over the finances and operations of the system due to the appointment of the Emergency Manager. The plaintiffs also asserted irreparable harm—Flint’s drinking water remained unsafe to drink, and portions of Flint’s population lacked reliable alternatives to the tap water.
On April 15, 2016, the defendants asked Judge Goldsmith to recuse himself. In 2014, Judge Goldsmith worked for four weeks in Flint and drank the lead-laden water. The defendants asked the court to consider the “appearance of . . . impropriety.” On April 26, 2016, Judge Goldsmith recused himself over the protests of the plaintiffs, who thought his recusal might cause too long of a delay. By a second random draw, Judge David M. Lawson was assigned to the case.
On July 2, 2016, Judge Lawson denied the defendants' motion to dismiss. The court reasoned that under the Administrative Procedure Act, district courts could review EPA compliance orders, despite the assertion that only a circuit court could issue judicial review. As for the specific compliance orders regarding the Safe Drinking Water Act, the court determined that the plaintiffs were not seeking an appeal of a final determination of an EPA compliance order, because they were not subject to the compliance order and would probably like to see the order enforced. Because the suit was entirely collateral to the EPA compliance order, the court determined that it had subject-matter jurisdiction. The court also declined to abstain from the case under the primary jurisdiction doctrine, and found that the relief requested by the plaintiffs was prospective and therefore excluded the state defendants from Eleventh Amendment immunity. (The harm was “not, as the defendants would read it, the damage to the lead service pipes, [but i]nstead, the harm is the continued leaching of lead into the drinking water.”) Finally, the court determined that the plaintiffs had alleged enough facts to determine that the state actors were indeed operators of the Water System, despite Comprehensive Environmental Response, Compensation, and Liability Act precedent that seemed to indicate the contrary. 194 F. Supp. 3d. 589.
On November 10, 2016, the court granted the plaintiffs’ motion for preliminary relief. The court agreed with the plaintiffs that they were likely to succeed on the merits and that at least some Flint residents struggled to obtain the water that they needed to sustain themselves. Accordingly, the court ordered the defendants to provide door-to-door water bottle delivery to all non-exempt houses serviced by the Flint Water System. Exempt houses were those that had a filter, those that refused to permit a water filter to be installed, those that affirmatively opted out of the filter service, and those that were non-occupied. Additionally, the defendants were ordered to provide updated information about the status of the water supply to residents; the information was to be presented in English, Spanish, Chinese, Arabic, and Hmong, so that it would be accessible to the vast majority of the houses serviced by the system. 217 F. Supp. 3d 960.
On November 17, 2016, the defendants filed an emergency motion to stay the preliminary injunction pending the appeal of the decision with the Sixth Circuit. Notice of the appeal was filed with the court on November 21, 2016. On December 2, 2016, the district court denied a motion to stay, believing that the Sixth Circuit was unlikely to find for the defendants.
The lower court was proven correct. On December 16, 2016, the Sixth Circuit, in a per curiam decision joined by Judges Damon Keith and Bernice Donald, denied the defendants’ motion to stay. It also held that the defendants had only a slim likelihood of success on the merits and were unlikely to be irreparably harmed by the preliminary injunction. Judge Jeffrey Sutton dissented, believing that the defendants had a strong likelihood of success on the merits. Judge Sutton also advised that the parties "talk to each other," stating “everyone has the same interests in mind: delivery of safe water.” 844 F.3d 546. (Sutton, J., dissenting).
The parties did end up talking to each other—by March 27, 2017, they reached a settlement. The defendants agreed to replace the lead service lines to at least 18,000 households served by the Flint Water System. The city agreed to excavate pipes and replace any lead pipe it discovered with copper pipe at no cost to the recipient. This was to be accomplished within three years of the effective date. The state of Michigan agreed to allocate $87,000,000 to the replacement of the service lines. Flint’s water was to be monitored regularly for consecutive 6 month periods. Water samples collected by the defendants were to be reviewed by an independent monitor. Discontinuation of funding for the monitoring program was to occur in the event that the 90th percentile of lead in the water samples contained below-actionable levels of lead for two consecutive 6-month periods. The defendants were also instructed to expand their installation and maintenance of and education on water filters.
The defendants were to continue distributing water until May 1, 2017. On May 1, the defendants could start closing points of distribution if the average number of daily bottle pickups was less than 20 for the first three weeks of the previous month and the point of distribution provided clear notice of their impending closure for at least a week. The state defendants were directed to maintain health programs, like the Medicaid expansion, the Elevated Blood Lead Level Case Management service, the Michigan Food Pantry expansion, and the Child and Adolescent Health Center expansion.
The settlement also provided for $895,000 in attorneys' fees for the plaintiffs' counsel and for the court to maintain jurisdiction in order to enforce the settlement. On March 27, 2017, the court issued an order approving the settlement agreement and dismissing the case. Accordingly, on March 31, 2017, the Sixth Circuit dismissed the appeal of the preliminary injunction.
On December 27, 2017, the plaintiffs sought judicial enforcement of the information sharing provisions of the settlement agreement (paragraphs 117 and 118). The plaintiffs alleged that, for nine months, the state was not complying with these provisions, as they had failed to provide the plaintiffs with timely, accurate, and complete status reports and timely responses to the plaintiffs’ requests for additional information. There were three particular areas on which the state failed to provide status reports: (1) verification of filter installations following service line replacements, (2) a maintained list of addresses of the residents who refused to grant the city permission to replace their service lines, and (3) the notification of new water system customers to CORE staff so these individuals could provide filter services promptly. Because this non-compliance made it difficult for the plaintiffs to enforce the agreement, they sought a more extensive reporting and certification process and greater oversight from the court. On March 15, 2018, Judge Lawson granted the plaintiffs' request.
The plaintiffs filed another motion to enforce the settlement agreement on June 21, 2018. This time, the plaintiffs alleged further noncompliance. Under the agreement, paragraph 29 required the city to conduct 18,000 excavations to replace the lead and galvanized steel pipes with copper ones. While the agreement required a minimum of 18,000 excavations it was unclear how many lead and steel services were actually located in the city. Therefore, the city was required to excavate at least 6,000 lines and use the data from those excavations to estimate (1) whether it was likely that more than 18,000 of these pipes existed within the city and (2) whether the $97 million in funding allocated under the agreement would sufficiently cover the cost of excavation and replacement, or if the state needed to find additional funding. Paragraph 30 required the state to commission a report as to their findings from the initial excavations. The state submitted its report on February 8, 2018, stating that it found lead and galvanized steel service lines at roughly 70.7% of the 8,843 homes where excavations were conducted. It concluded (1) it was not reasonably likely that there were more than 18,000 of these service lines within the city and (2) the $97 million in funding would reasonably cover the costs for the remainder of the excavations. The city reached this conclusion by assuming that the 70% rate would continue to drop each year. In their motion, the plaintiffs alleged that the city’s conclusions were based on flawed methods and presumptions and requested the court to order the city to revise its conclusions based on sound methods conducted by experts.
Before this motion was resolved, the plaintiffs filed a motion to also have paragraphs 38 and 117 of the agreement enforced by the court. The settlement agreement required the city to take steps to ensure the health and safety of all city residents during and after the excavations. Specifically, paragraph 38 required the city to install a faucet filter at each home immediately after its service line is replaced to reduce the risk of increased lead levels in the water. Paragraph 117 required the city to produce a quarterly status report regarding this progress. The plaintiffs alleged that, according to the city’s quarterly report on May 25th, the city had delayed installation of filtration faucets and inadequately documented and reported filter verification efforts. The plaintiffs requested that the court force the city to comply with these two provisions of the agreement.
After a consolidated hearing on the two outstanding enforcement motions, Judge Lawson ordered the enforcement of paragraphs 38 and 117 on September 10, 2018. Judge Lawson ordered the city to attempt proper filter installation within three business days of service line replacement and to provide the plaintiffs with weekly reports describing the city’s filter installation processes. The plaintiffs filed a supplemental brief that enforcement of these paragraphs would render the previous motion unnecessary. The plaintiffs withdrew their motion to enforce paragraphs 29 and 30 and Judge Lawson subsequently dismissed the motion as moot on October 5.
The court first amended the settlement agreement on March 26, 2019. The amendments focused on an excavation list that would consist of addresses of occupied residential homes in Flint with the highest likelihood of having lead or galvanized steel service lines, based on a predictive model. Two months later, the court amended the settlement agreement for the second time. These amendments focused on the state's and city's obligations to complete initial visits to check the new Flint Water System customers. On August 24, 2020, the court again amended the settlement agreement, giving the city additional time to complete the required excavations and service line replacements at eligible homes.
On September 4, 2020, the plaintiffs filed their fourth motion to enforce the settlement agreement. This time the plaintiffs alleged even further noncompliance: (1) the city of Flint refused to conduct excavations and service line replacements in two neighborhoods within the city; (2) the city had not complied with the monitoring requirements of the Lead and Copper Rule for checking lead levels; (3) the city had fallen far short of its obligation to report on time information about its service line replacement activities, including its in-person outreach to residents; and (4) the city had not conducted mail and in-person outreach to residents to obtain their permission to conduct excavations and replacements in the manner contemplated by the settlement agreement.
On October 13, 2020, the court granted in part the plaintiffs' motion to enforce the settlement agreement and ordered the city to remedy all outreach violations by October 20 by conducting in-person visits to affected homes. It required the city of Flint to conduct excavations at all homes in the University Park and Smith Village neighborhoods, to comply with the monitoring requirements of the Lead and Copper Rule by identifying 60 water sample sites that the city confirmed meet the high-risk criteria, to report on time information about its service line replacement activities, and to obtain residents' permission to conduct excavations and replacements.
The plaintiffs filed a fifth motion to enforce the settlement agreement on November 1, 2022. Again, the plaintiffs alleged that the city had still not completed all required service line excavations and replacements despite more than two-and-a-half years of extensions beyond the original January 2020 deadline to complete this work. The plaintiffs also proposed a notice requirement, requesting that the court order the city to leave door hangers at residences where the city conducted a visual inspection and determined no further restoration was needed. The court granted this motion on February 24, 2023, finding that the proposed door hanger notification procedure fell in line with the city's previous commitments under the settlement agreement, and therefore would not be unduly burdensome.
On May 26, 2023, the plaintiffs filed a motion for contempt, alleging that, despite the court’s order, the city had failed to (1) determine which homes still required property restoration; (2) provide timely, accurate, and complete monthly restoration reporting; and (3) conduct mail and in-person outreach to residents to obtain their permission to conduct service line excavations and replacements. The parties informed the court on June 29, 2023 that the city had made progress in completing outreach requirements, although litigation pertaining to the contempt motion was ongoing.
The case is ongoing.
Summary Authors
Megan Brown (5/11/2017)
Mackenzie Walz (11/5/2018)
Calvin Kim (3/20/2022)
Brillian Bao (11/22/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4513553/parties/concerned-pastors-for-social-action-v-khouri/
Agarwal, Shilpi (Michigan)
Beckman, David S (Michigan)
Bernard, Mitchell S (Michigan)
Bade, Peter M. (Michigan)
Berg, Frederick A. (Michigan)
Davis, Stephanie Dawkins (Michigan)
Donald, Bernice Bouie (Tennessee)
Goldsmith, Mark Allan (Michigan)
Keith, Damon Jerome (Michigan)
Lawson, David M. (Michigan)
Sutton, Jeffrey S. (Ohio)
Bernard, Mitchell S (Michigan)
Borgsdorf, Stephen C. (Michigan)
Chaudhary, Dimple (District of Columbia)
Chisholm, Barbara Jane (Michigan)
Choudhury, Nusrat J. (Michigan)
DePaulo, William V. (Michigan)
Desormeau, Katherine (Michigan)
Farmer, Miles Belin (Michigan)
Fleischli, Steven Eugene (Michigan)
Fort, Sarah V. (District of Columbia)
Glitzenstein, Eric R. (Michigan)
Gurewitz, Mary Ellen (Michigan)
Hessel, Daniel Jacob (Michigan)
Knicley, Jared E. (District of Columbia)
Kolbi-Molinas, Alexa (Michigan)
Korobkin, Daniel S. (Michigan)
Kyle, Selena Katherine (Michigan)
Marks, Nancy Sharman (Michigan)
Meckenstock, Margaret Elaine (Michigan)
Merriweather-Tucker, Brooke A. (Michigan)
Nickelhoff, Andrew A. (Michigan)
Perrella, Melissa Lin (Michigan)
Pettit, David Richard (Michigan)
Poole, Katherine Scott (Michigan)
Poole, Mark William (Michigan)
Rahm, Catherine Marlantes (Michigan)
Reynolds, Joel Robert (Michigan)
Russo, Steven Charles (Michigan)
Salvatore, Jennifer B. (Michigan)
Schlozman, Heather J. (Michigan)
Simmington, Glenn M. (Michigan)
Sinding, Katherine Anne (Michigan)
Sorenson, Jennifer Ann (Michigan)
Steinberg, Michael J. (Michigan)
Wall, Michael Edwin (California)
See docket on RECAP: https://www.courtlistener.com/docket/4513553/concerned-pastors-for-social-action-v-khouri/
Last updated March 15, 2024, 3:06 a.m.
State / Territory: Michigan
Case Type(s):
Public Benefits/Government Services
Special Collection(s):
Key Dates
Filing Date: Jan. 27, 2016
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
A nonprofit association of religious leaders and congregations from more than thirty predominantly Black churches and ministries in the city of Flint and its surrounding communities.
Plaintiff Type(s):
Non-profit religious organization
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
The City of Flint (Genesee), City
Defendant Type(s):
Case Details
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Preliminary injunction / Temp. restraining order
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Amount Defendant Pays: $87,000,000
Order Duration: 2017 - None
Content of Injunction:
Issues
General:
Public benefits (includes, e.g., in-state tuition, govt. jobs)