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Case Name Concerned Pastors for Social Action v. Khouri PB-MI-0011
Docket / Court 2:16-cv-10277-MAG-SDD ( E.D. Mich. )
State/Territory Michigan
Case Type(s) Public Benefits / Government Services
Attorney Organization ACLU Chapters (any)
ACLU of Michigan
Case Summary
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 ... read more >
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, plaintiffs requested that the court: (1) declare that defendants were in violation of their duties under the Safe Drinking Water Act, (2) enjoin defendants from continuing to violate the Safe Drinking Water Act, (3) order that defendants take all steps necessary to remedy their violations, and (4) grant any equitable relief the court deems 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 the optimal level.

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, Gov. 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.

Historically, Flint received its drinking water from Detroit. Detroit’s drinking water is drawn from Lake Huron, and is 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 to be finished until June of 2016.

According to plaintiff’s complaint, the Governor’s appointed Emergency Manager did not want to negotiate with Detroit and 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 contain mercury (a neurotoxin) and PCB (a carcinogen); contamination is caused by local industrial and agricultural runoff. 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. 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 made aware 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. The damage, however, was done. The lead of the pipe was exposed due 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, using its authority under the Safe Drinking Water Act, issued 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 moved for 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, were still failing to monitor the lead in the water, and because the 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 defendant’s motion to dismiss. The Court reasoned that under the Administrative Procedure Act, district courts could review EPA compliance orders, despite the Defendant’s assertions 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 “. . .is 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 CERCLA precedent that seemed to indicate the contrary. 194 F. Supp. 3d. 589.

On November 10, 2016, the Court granted the plaintiffs’ motion for preliminary injunction. 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 filer, 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. 2016 WL 6647348.

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 Eastern District Court denied the Motion to Stay, believing that the Sixth Circuit was unlikely to find for the defendants.

On December 16, 2016, the lower court was proved correct. The Sixth Circuit in a per curiam decision joined by Judges Keith and Donald, denied the defendants’ motion to stay. It also believed 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 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 had 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 was 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.

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 28, 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.

As of now, there is no further action reflected in the docket. The court will maintain jurisdiction over the case until at least 2020 pursuant to the settlement agreement.

Megan Brown - 05/11/2017


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Issues and Causes of Action
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Issues
Content of Injunction
Monitoring
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Sanitation/Public Works
General
Government Services (specify)
Plaintiff Type
Non-profit religious organization
Defendant(s) The City of Flint
The State of Michigan
Plaintiff Description A nonprofit association of religious leaders and congregations from more than thirty predominantly African American churches and ministries in the City of Flint and its surrounding communities.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU of Michigan
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Declaratory Judgment
Attorneys fees
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2017 - n/a
Case Ongoing Yes
Additional Resources
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  Flint’s Lead Pipes Will Be Replaced Under Settlement in Federal Safe Drinking Water Case
https://www.nrdc.org/media/2017/170328
Date: Mar. 28, 2017
(The Natural Resources Defense Council )
[ Detail ]

  William G. v. Pataki
http://www.bazelon.org/william-g-v-pataki/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Disability Rights New Jersey v. Velez
http://www.bazelon.org/drnj-v-velez/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Williams v. Quinn
http://www.bazelon.org/williams-v-quinn/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  United States of America v. Commonwealth of Virginia
http://www.bazelon.org/u-s-v-virginia/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  United States of America v. North Carolina
http://www.bazelon.org/u-s-v-north-carolina/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  U.S. v. Georgia
http://www.bazelon.org/u-s-v-georgia/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  O'Toole v. Cuomo [Formerly DAI v. Cuomo]
http://www.bazelon.org/otoole-v-cuomo/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

  Amanda D. v. Hassan
http://www.bazelon.org/amanda-d-v-hassan/
Date: 2017
By: The Bazelon Center (The Bazelon Center)
[ Detail ] [ External Link ]

Docket(s)
2:16-cv-10277 (E.D. Mich.)
PB-MI-0011-9000.pdf | Detail
Date: 04/04/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief [ECF# 1]
PB-MI-0011-0001.pdf | Detail
Date: 01/27/2016
Source: PACER [Public Access to Court Electronic Records]
Order Allowing Preliminary Discovery [ECF# 60] (2016 WL 3055624) (E.D. Mich.)
PB-MI-0011-0003.pdf | WESTLAW | Detail
Date: 05/31/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Denying Defendants' Motion to Dismiss [ECF# 62] (194 F.Supp.3d 589) (E.D. Mich.)
PB-MI-0011-0002.pdf | WESTLAW| LEXIS | Detail
Date: 07/07/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction [ECF# 96] (2016 WL 6647348) (E.D. Mich.)
PB-MI-0011-0004.pdf | WESTLAW | Detail
Date: 11/10/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Denying Motion to Stay Preliminary Injunction [ECF# 108] (2016 WL 7030059) (E.D. Mich.)
PB-MI-0011-0005.pdf | WESTLAW | Detail
Date: 12/02/2016
Source: PACER [Public Access to Court Electronic Records]
Order [Ct. of App. ECF# 34] (844 F.3d 546)
PB-MI-0011-0006.pdf | WESTLAW| LEXIS | Detail
Date: 12/16/2016
Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement [ECF# 147]
PB-MI-0011-0007.pdf | Detail
Date: 03/27/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Donald, Bernice Bouie (W.D. Tenn., Sixth Circuit)
PB-MI-0011-0006
Goldsmith, Mark Allan (E.D. Mich.)
PB-MI-0011-9000
Keith, Damon Jerome (E.D. Mich., Sixth Circuit)
PB-MI-0011-0006
Lawson, David M. (E.D. Mich.)
PB-MI-0011-0002 | PB-MI-0011-0003 | PB-MI-0011-0004 | PB-MI-0011-0005 | PB-MI-0011-9000
Sutton, Jeffrey S. (Sixth Circuit)
PB-MI-0011-0006
Plaintiff's Lawyers Chaudhary, Dimple (District of Columbia)
PB-MI-0011-0001 | PB-MI-0011-0007 | PB-MI-0011-9000
Kitaba, Bonsitu A. (Michigan)
PB-MI-0011-9000
Knicley, Jared E. (District of Columbia)
PB-MI-0011-0007 | PB-MI-0011-9000
Merriweather-Tucker, Brooke A. (Michigan)
PB-MI-0011-9000
Shea, David J. (Michigan)
PB-MI-0011-9000
Simmington, Glenn M. (Michigan)
PB-MI-0011-0001 | PB-MI-0011-0007 | PB-MI-0011-9000
Steinberg, Michael J. (Michigan)
PB-MI-0011-0001 | PB-MI-0011-0007 | PB-MI-0011-9000
Tallman, Sarah C. (Illinois)
PB-MI-0011-0001 | PB-MI-0011-0007 | PB-MI-0011-9000
Wall, Michael Edwin (California)
PB-MI-0011-0007 | PB-MI-0011-9000
Defendant's Lawyers Berg, Frederick A. (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Booth, Joshua O. (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Gambill, Nathan A. (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Kim, William Young (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Klein, Sheldon H. (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Kuhl, Richard S. (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Murphy, Michael F (Michigan)
PB-MI-0011-0007 | PB-MI-0011-9000
Oakes, Stacy Erwin (Michigan)
PB-MI-0011-9000
Other Lawyers Driker, Eugene (Michigan)
PB-MI-0011-0007
Mendel, Todd R. (Michigan)
PB-MI-0011-0007

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