(EDITOR’S NOTE, 4/25/19, 7:30 PM ET: This is the fourth installment in Grit Post’s series commemorating the five-year anniversary of the Flint Water Crisis, about Flint residents fighting court battles against various entities. Click the links to read part 1, part 2, and part 3.)
On April 25, 2014, the button was pushed that switched the city of Flint, Michigan to the water of the Flint River. The situation that followed was a crisis that radically redefined what we thought about lead in drinking water.
Over the course of this April, Grit Post has explored a wide array of updates on that crisis, but we’re far from the only source marking the anniversary. The legal battles surrounding the crisis have been evolving as well.
From court rulings to a renewed pursuit of the criminal investigation under the state’s new Democratic administration, there have been a slew of recent developments, but these aren’t the only Flint lawsuits of interest.
The State’s Investigations
When Michigan’s new Attorney General Dana Nessel took over the Flint criminal investigations, 15 former government employees had been charged, and six of those had taken plea deals. The most severe charges included involuntary manslaughter.
Nessel had been critical of the investigation, and appointed new solicitor general, Fadwa Hammoud, to lead the criminal investigation. Nessel was shocked at how few people in government actually worked on the criminal cases prior to her assuming office.
Most of the people working on the criminal investigations had worked for the private law firm operated by Republican-appointed special prosecutor Todd Flood.
“You had a private firm handling these cases and practically no oversight whatsoever,” Nessel told reporters.
With Hammoud replacing Flood, that effort was brought back under government oversight.
“Solicitor General Hammoud is continuing her due diligence to ensure justice is served for the people of Flint, and that includes thoroughly reviewing each case and its evidence in detail,” Office of the Attorney General communications manager Dan Olsen told Grit Post. “Justice demands it and the people harmed in Flint deserve it.”
While Hammoud handles the criminal investigations, Nessel herself lit fire under the civil cases. Notably, she amended the civil complaint to include accountability for Veolia Water and Lockwood, Andrews and Newman (LAN). The state now argues these companies had directly influenced the design of water treatment plans that ultimately corroded Flint’s infrastructure.
“Our office has filed an amended complaint in the Veolia and LAN case, which had virtually no movement since the complaint was filed in August 2016,” said Olsen. “Since bringing this case back to the Attorney General’s Office to be handled by career assistant attorneys general, we are making progress and the defendants now have 45 days from the date of the filing to answer this amended complaint.”
Going further, Nessel’s office has provided tens of thousands of documents to Congress in compliance with a House Oversight and Government Reform Committee investigation into Flint. Many of those documents had not previously been supplied to Congress despite former Governor Rick Snyder (R) contesting that all documents had been turned over.
The new Attorney General does have detractors among the Flint public, however. A lawyer representing 2,500 Flint children has asked courts to bar the office from all Flint Water Crisis civil cases on the grounds of conflict of interest. The argument goes that the same office is both defending the State of Michigan from suit while pressing lawsuits against others.
“Our office holds itself to the highest ethical standards and has not violated the Rules of Professional Conduct with respect to its representation in the Flint civil litigation,” Olsen said.
New Liabilities in Court
While cases against companies and the State of Michigan progress, Flint residents have gotten new targets for their lawsuits this month.
While he was formerly insulated, Snyder was exposed to legal liability for potentially violating bodily integrity of Flint residents. Judge Judith Levy cited a constitutional interest in preserving bodily integrity on the Federal level.
At the time the crisis began, Flint was being managed not by local elected leaders, but state-appointed emergency financial manager Ed Kurtz. And evidence suggests the state was aware of the potential dangers of switching to Flint River water at the outset, and that it knew well before the public the impact its decision had.
And with the Michigan Department of Environmental Quality’s (DEQ) failure to regulate corrosion control, more Snyder Administration officials have legal exposure to Flint lawsuits.
But DEQ wasn’t the only environmental regulator to fail Flint.
Last Thursday, Judge Linda V. Parker ruled that the federal government was not immune from legal action resulting from the failures of the Environmental Protection Agency.
“The impact on the health of the nearly 100,000 residents of the City of Flint remains untold,” said Parker. “It is anticipated, however, that the injury caused by the lead-contaminated public water supply system will affect the residents for years and likely generations to come.”
Because the EPA was too slow to intervene in the crisis, it, too, bears liability for the outcomes of the crisis on Flint residents. Whether it would’ve been so slow to act in an affluent, white community is unknown, but is largely considered unlikely.
While she did not rule on the EPA’s negligence, Parker did chastise the agency, noting it was well aware of the Flint River’s corrosive nature as well as the long-term health effects of lead poisoning.
Those health effects include things like irritability, developmental delays, learning disabilities and eating things that aren’t food. And the psychological nature of those symptoms raises yet another lawsuit.
Genesee Health Systems v. Genesee County
The mental health and wellbeing of Flint residents is provided by Genesee Health Systems, a public entity operated by the State of Michigan. As part of its operational fund, it was to receive $10.2 million in 2016, at the height of the Flint Water Crisis. But that didn’t happen.
Instead of paying it out in full, Genesee County paid roughly half, leaving $5.2 million in its own coffers for other expenses. When GHS demanded the rest of the money, the county looked over its books and determined GHS had actually been given too much — it wanted the $5 million it had paid out back.
Court documents obtained by Grit Post show GHS then sued the county, the county’s treasurer, the county’s clerk and the chairman of the county’s board.
“The County repeatedly acknowledged both GHS is entitled to the GHS Funds and that it was withholding those Funds because the County was otherwise unable to pay its own bills,” the complaint reads.
According to the complaint, it was only when Michigan’s Department of Health and Human Services demanded the county turn over the funds and failure to do so violated law that Genesee County began to claim it, in fact, had no obligation to.
Regardless of legal obligation, the facts that Genesee withheld funds and, in turn, demanded payment from GHS while it was dealing with the fallout of the Flint Water Crisis are not apparently in dispute, only whether or not Genesee had the legal right to.
And that leaves Genesee County responsible for depriving GHS of funds specifically designated for mental health that could be used to treat the children poisoned by negligence on the state and federal level — another layer of government that made an active decision to let down the people of Flint when it needed them the most.
It seems only right, therefore, that on the anniversary of the Water Crisis’ beginning we discuss the efforts to bring the county, state and nation that allowed the crisis to take place and failed to care for the citizens of Flint to justice.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.