Environmental Law

Suit seeks replacement of lead water pipes in Flint; is sovereign immunity a bar?

A lawsuit filed in federal court on Wednesday alleges Michigan officials failed to deliver safe drinking water to the citizens of Flint in violation of the Safe Drinking Water Act.

The suit seeks replacement of city and privately owned lead water pipes, which corroded and leached lead when the city began drawing its water from the polluted Flint River in 2014, according to a press release and a blog post by Rhea Suh, president of the Natural Resources Defense Council. A state-appointed emergency manager had switched the water from Lake Huron to save money.

The damaged pipes lost their protective coating and continue to leach lead, despite a return to Lake Huron water in October, according to the suit (PDF). Current water testing does not differentiate high-risk tap water flowing through lead pipes and copper pipes with lead solder, which could underestimate the danger, the suit says.

In the last two years, the percentage of Flint children with elevated levels of lead in their blood has doubled and in some areas has nearly tripled, the suit says.

The suit seeks injunctive and declaratory relief, rather than damages. It also seeks replacement of lead water pipes at no cost.

The suit differs from past class actions because the Safe Drinking Water Act allows citizens to sue when government fails to protect their drinking water, according to the press release. Many national tort law firms have avoided filing suits in Michigan because the government is likely protected by sovereign immunity, Reuters reports. Those lawyers who did sue are pursuing “creative arguments” in an effort to defeat immunity, the story says.

One of the prior suits alleges there is no sovereign immunity because the water switch denied residents their federal constitutional rights to bodily integrity and to be free from state-created danger.

The latest suit was filed by the ACLU of Michigan, the Natural Resources Defense Council, Concerned Pastors for Social Action and Flint resident Melissa Mays.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.