Eastern District of Michigan Judge Judith E. Levy ruled in an order last week that the United States cannot dismiss one of the cases arising from the Flint water crisis filed against the government. The judge ruled that the United States Environmental Protection Agency (EPA) is not immune from tort lawsuits arising from alleged violations of its duty to keep water clean.
The opinion and order said that the plaintiffs have filed complaints against a variety of both private and public defendants alleging that they “set in motion a chain of events that lead to bacteria and lead” contaminating the water supply for the city of Flint or concealed the risks associated with the contaminated water. The district court has previously addressed motions to dismiss in other cases, but this one is significant because it was filed against the EPA under the Federal Tort Claims Act (FTCA).
The judge said the FTCA “waives the Government’s sovereign immunity from certain types of claims” and decided that the United States is subject to tort liability to the same extent as a private individual. She said the argument by the United States that the pleadings in the case did not meet the private liability were an attack on the court and its subject matter jurisdiction and determined that the pleadings were sufficient.
Judge Levy said in the order that it would be “plausible” that Flint citizens did not seek outside help because the federal government was intervening in the crisis.
The filing says the plaintiffs did provide enough information to show that the EPA fulfilled the requirements for the FTCA to be applicable, including rendering services by responding to citizens’ complaints, being negligent in oversight and monitoring, they owed a duty to the plaintiffs who relied on them, and the negligence of the EPA resulted in an increased risk of harm.
The order says “the United States argues that Plaintiffs could not have reasonably relied upon the EPA to protect them from harm during the Flint Water Crisis. This is because the SDWA (Safe Drinking Water Act) places primary responsibility for compliance onto the City of Flint and the State of Michigan, and so it would be unreasonable for Plaintiffs to rely upon the EPA. Plaintiffs contend that their reliance was reasonable and that it was not only Plaintiffs who relied upon the EPA, but also the City of Flint and (Michigan Department of Environmental Quality).”
The plaintiffs argued that the EPA’s response to the Flint water crisis was mandatory but the United States said it was discretionary, the court ruled with the plaintiffs that under the SDWA the EPA is required to take actions. The judge ruled that the United States did not sufficiently show that its “actions and inactions” under the SDWA “are shielded by the discretionary function exemption.” And, further, ruled that the EPA’s inaction in informing Flint residents about the contamination in their water is not what the exemption is meant to address.
Earlier in August, Michigan announced that they agreed to pay $600 million to settle claims against the state due to the Flint water contamination, the funds will go primarily towards cases on behalf of children who suffered injury from lead in the water.
