Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system. The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention. In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss. Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).
The defendants in the case include the city of Flint and its city administrator as well as the Michigan Treasurer and members of the Flint Receivership Transition Advisory Board (RTAB). The RTAB was appointed by the state’s governor to manager the city’s affairs along with the city officials after the city declared a fiscal emergency. The plaintiffs, several organizations advocating on behalf of Flint’s residents as well as a resident of Flint, contend that the defendants all made a number of decisions in directing the operation of the Flint water system which resulted in the lead contamination crisis. Specifically, the plaintiffs contend that in order to save money, city and state officials switched the city’s drinking water source from Lake Huron to the Flint River, which is known to be contaminated from nearby industry. The plaintiffs maintain that the Flint River water corroded the city’s aging metal pipes and destroyed the protective coating, causing lead to leach into the drinking water. And, even though the city no longer uses water from the Flint River, the residents are allegedly still being exposed to high levels of lead in their water from the continued use of the aging pipes. The plaintiffs are seeking a declaratory judgment and injunctive relief regarding the ongoing violations of the SDWA and prior orders, including an order requiring the defendants to take certain actions to remedy the SDWA violations.
In their motion to dismiss, among other things, the defendants argued that the Court lacks primary and subject matter jurisdiction because the EPA had already issued an Emergency Administrative Order under the SWDA which directed Flint and the state of Michigan to take certain steps to address the crisis. These steps include providing information to the public on a website and to the EPA, planning for optimization of water treatment to control corrosion, and retaining personnel qualified to ensure compliance with the SDWA’s requirements. In addition, the defendants argued that the plaintiffs failed to properly state a claim because they sought retrospective – rather than prospective – relief under the SDWA.
First, the defendants argued that the action was, in reality, an appeal of an EPA order and thus the proper avenue for relief would be in the circuit court under the applicable appeal provisions of the SDWA. The court disagreed, finding that because the plaintiffs were not parties to the EPA order and do not allege that their injuries stem from the order, the exclusive provisions of the SDWA are not applicable. Rather, the action, the Court states, is "wholly collateral to the SDWA's review provisions."
Next, the defendants argued that even if subject matter jurisdiction exists, the Court should abstain from hearing the case under the doctrine of primary jurisdiction, and instead defer to the EPA. The defendants argued that such deference was appropriate here because the case involves complex factual and scientific questions that are outside the Court’s conventional experience, and that the EPA had already issued a compliance order in the case. In response, the Court noted that the plaintiffs are only seeking a declaratory judgment that the defendants violated the SDWA, and found that such a determination “merely requires determining whether the defendants complied with the statute, which is well within the Court’s expertise.” The Court also found that the plaintiffs’ requested relief would not interfere with EPA compliance order because the relief was similar: “The danger of creating inconsistent obligations for the defendants is relatively low in this case, because the EPA and the plaintiffs are seeking the same result: safe drinking water for the residents of Flint.”
The Court similarly rejected the defendants’ argument that the Court lacked subject matter jurisdiction because the plaintiffs’ lawsuit constitutes an implicit request for judicial review of EPA’s compliance order. The Court first acknowledged that under the SDWA a petition for judicial review of a final action by the EPA must be reviewed in a circuit court rather than a district court. But the court noted that the plaintiffs “do not allege that their injury stems from the EPA’s emergency order” and therefore the lawsuit does not amount to an appeal of a final determination by the EPA. Instead, the court found, “[t]he relief [the plaintiffs] seek may parallel the EPA’s directives to the Flint and Michigan respondents, and may augment those orders.”
The court also rejected the defendants’ multiple arguments that the plaintiffs failed to state a viable claim. The defendants had argued that plaintiffs’ claims must be dismissed because they asked for retrospective relief unavailable under the SDWA. Specifically, defendants insisted that the plaintiffs’ demands for the replacement of lead service lines and mitigation of health and medical risks are measures that only address past violations. Conversely, the plaintiffs argued that the requested relief was prospective because it addressed ongoing violations by the defendants. In addition, the RATB members and the state treasurer argued that the plaintiffs’ claims fail because those individual defendants lacked the requisite control over the Flint water system.
In finding the relief was prospective rather than retrospective, the Court first noted that the SDWA allows citizen-suits against any person alleged to be “in violation of” its requirements. The Court further noted that the U.S. Supreme Court, in Gwaltney of Smithfield, Ltd v. Chesapeake Bay Found., Inc., had previously interpreted the language “in violation of” in the Clean Water Act as requiring a plaintiff to allege either a “continuous or intermittent violation...” 484 U.S. 49, 57 (1987). Here, the Court applied Gwaltney’s statutory interpretation to the SDWA and determined that the plaintiffs properly alleged a continuous violation because the alleged harm included the continued leaching of lead into the drinking water. And because the plaintiffs seek mitigation of health and medical risks resulting from these alleged continuing violations, the Court found the requested relief is properly characterized as prospective rather than retrospective.
Finally, the Court rejected several immunity arguments, including that the RATB members and state treasurer were immune from the requirements of the SDWA because they did not “own or operate” the public water system as required under the statute. The defendants argued that they merely had financial monitoring responsibility over the city and did not exert any level of operational control. The plaintiffs disagreed, alleging that those defendants had significant operational control, including the decision to use water from the Flint River and to authorize the expenditures necessary to upgrade the system so that water from the Flint River could be used.
In its analysis, the Court looked to other cases which found that the financial authority and level of involvement as alleged by the plaintiffs in this case was relevant in determining “operator” liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While those cases found operator liability based on more than simply financial control, the Court pointed out that those cases were adjudicated at the summary judgment stage rather than on a motion to dismiss. Thus, the Court found that the plaintiffs’ allegations were – at the very least – sufficient to state a claim and survive a motion to dismiss under the SDWA. Of course, it remains to be seen whether the plaintiffs will eventually be able to demonstrate that these defendants had the requisite amount of control to be liable under the SDWA for exercising operational control over Flint’s water supply system.
On the whole, this case is interesting because the Court – while it could have simply deferred to EPA’s handling of the matter – has allowed the plaintiffs to pursue their claims in several different legal arenas. Notably, the Court seems to hinge its decision in this regard on the fact that the plaintiffs’ requested relief is consistent with the EPA’s current enforcement action. It remains unclear exactly how consistent requested relief must be in such a lawsuit to avoid dismissal under the primary jurisdiction doctrine.