Concerned Pastors for Soc. Action v. Khouri

• Citation: 194 F.Supp.3d 589
• Decision Date: 07 July 2016
• Docket Number: Case Number 16-10277
• Parties: CONCERNED PASTORS FOR SOCIAL ACTION, Melissa Mays, American Civil Liberties Union of Michigan, and Natural Resources Defense Council, Inc., Plaintiffs, v. Nick A. KHOURI, Frederick Headen, Michael A. Townsend, David McGhee, Michael A. Finney, Beverly Walker-Griffea, Natasha Henderson, and City of Flint, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

194 F.Supp.3d 589

CONCERNED PASTORS FOR SOCIAL ACTION, Melissa Mays, American Civil Liberties Union of Michigan, and Natural Resources Defense Council, Inc., Plaintiffs,

v.Nick A. KHOURI, Frederick Headen, Michael A. Townsend, David McGhee, Michael A. Finney, Beverly Walker-Griffea, Natasha Henderson, and City of Flint, Defendants.

Case Number 16-10277

United States District Court, E.D. Michigan, Southern Division.

Signed July 7, 2016

Brooke A. Merriweather-Tucker, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, David J. Shea, Shea Aiello, PLLC, Southfield, MI, Jared E. Knicley, Dimple Chaudhary, Natural Resources Defense Council, Washington, DC, Sarah C. Tallman, Natural Resources Defense Council, Chicago, IL, Glenn M. Simmington, Law Office of Glenn M. Simmington, Flint, MI, for Plaintiffs.

Joshua O. Booth, Michael F. Murphy, Nathan A. Gambill, Michigan Department of Attorney General, Lansing, MI, William Young Kim, Stacy Erwin Oakes, City of Flint, Department of Law, Flint, MI, Frederick A. Berg, Butzel Long, Detroit, MI, Sheldon H. Klein, Butzel Long, Bloomfield Hills, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS

DAVID M. LAWSON, United States District Judge

Three organizations advocating on behalf of the citizens of Flint, Michigan, and a Flint resident, have turned to the federal courts for relief from the hardship visited on the population caused by the mishandling of the City's water treatment and distribution system. The targets of their lawsuit are the Michigan treasurer and members of the Flint Receivership Transition Advisory Board (RTAB) (the State defendants), and the City of Flint and its city administrator (the Flint defendants). Both defendants have filed motions to dismiss, arguing, among other things, that the federal district court should not, or cannot, get involved, and the plaintiffs should be content with the remedial course charted by the Environmental Protection Agency. The Court disagrees. For reasons explained below, the Court believes that it should not defer to the EPA's "primary jurisdiction" to address the plaintiffs' complaints, the lawsuit is not a disguised appeal of the EPA's January 2016 order, the relief the plaintiffs seek is, in the main, prospective and the Eleventh Amendment does not bar this lawsuit against the State defendants, the individual members of the RTAB are proper defendants under the Safe Drinking Water Act (SDWA) because they exert control over the financial decisions affecting the operation of the Flint water system, and the complaint states viable claims for relief. The motions to dismiss will be denied.

I.

According to the allegations in the complaint, the water in Flint, Michigan is not safe to drink and has not been safe to drink since April 2014. The plaintiffs allege that in November 2011, in response to Flint's budget deficit and mounting debt, Governor Rick Snyder declared a financial emergency in the city and appointed an emergency manager to take over and run the city's operations. In order to save the city money, the plaintiffs contend, the emergency manager switched the city's drinking water source from Lake Huron to the Flint River, a water source known to be contaminated by nearby industries. The city and state officials allegedly failed to follow the federal requirements for treating and testing drinking water for lead under the SDWA. The plaintiffs maintain that the caustic Flint River water corroded the city's aging metal pipes and destroyed the protective coating that had formed over many years, causing lead to leach into the drinking water. The plaintiffs maintain that even though the defendants have stopped using the Flint River as the city's drinking water source in October 2015, the city's water remains unsafe to drink, wash with, and bathe in. The plaintiffs assert that the residents of Flint have been exposed and are still being exposed to high levels of lead in their water, and in the past two years, the percentage of Flint children with elevated levels of lead in their blood has doubled and nearly tripled in some areas.

The complaint sets forth the plaintiffs' view of the political history that emerged as a result of Flint's financial travails. In November 2011, the City of Flint was put into a state-controlled receivership. Local government officials were stripped of authority in favor of state-appointed personnel. Between November 2011 and April 2015, Flint had four successive emergency managers, who were vested with broad powers to address the city's financial emergency, including authority over the city budget. In early 2015, the emergency manager gave defendant Natasha Henderson full authority to direct and supervise the day-to-day operations of the city, including authority to direct the head of the Department of Public Works and manage the operations of the water system. Flint's Utilities Department is responsible for the supply and maintenance of water services, which reports to the Department of Works. The plaintiffs maintain that defendant Henderson has directed the operation of the water system, managed the purchase of water meters, plumbing supplies, and chemicals to treat Flint River water at the treatment plant. She also allegedly decided that Flint could enter into a contract with the consultants to provide design, procurement, and construction services to the Flint water treatment plant.

On April 28, 2015, Governor Snyder removed the emergency manager and replaced him with an appointed Receivership Transition Advisory Board to continue to manage the city's affairs along with the city officials for the duration of the receivership. The plaintiffs contend that since its inception, the RTAB has made a number of decisions directing the operation of the Flint water system. In August 2015, the RTAB allegedly decided that Flint could enter into a multi-year environmental monitoring services contract with a testing laboratory and decided to allow Flint to purchase chemicals to be used to treat water at the water treatment plant. It further decided whether Flint could purchase water distribution pipe repair parts for use in maintaining the water system.

The plaintiffs allege that the RTAB is the primary, but not exclusive, state entity that managed Flint's operations during the receivership. They also allege that the State Treasurer, defendant Nick A. Khouri, manages aspects of the city's operations. For example, the Mayor and the City Council cannot amend the budget that was adopted by the emergency manager without approval of both the RTAB and the State Treasurer. The plaintiffs further maintain that the State Treasurer exerts control over the Flint water system by having the final authority to decide whether the water system can make large operational changes that involve budget amendments. In early 2014, the State Treasurer decided whether Flint could expend more than $3 million to upgrade its water treatment plant to allow Flint to use the Flint River as its primary drinking water source. And, the plaintiffs allege, the State Treasurer exercised final decision-making power over the water system's choices about where to get its drinking water. The plaintiffs allege that the Mayor and the City Council were stripped of all authority except as specifically authorized in writing by the emergency manager prior to the elimination of the position last spring.

The plaintiffs allege that in March 2013, Flint's City Council voted to join the Karegnondi Water Authority (KWA), a newly formed water supply system that would have a new operational pipeline available in June 2016. The City Council's vote to join the KWA could only be authorized by the emergency manager and State Treasurer. The plaintiffs allege that the State Treasurer rejected Detroit's final offer to continue to receive water from Detroit while the KWA pipeline was completed.

The problem, the plaintiffs contend, was that the City of Flint had not treated its own water on a regular basis for nearly fifty years. And it had never undertaken the analysis required by the SDWA to identify and understand how a water system optimizes corrosion control treatment for drinking water. The plaintiffs allege that in 2011, outside consultants for the city analyzed whether the Flint River could be used as the city's permanent primary source of drinking water. The consultants allegedly concluded that it would require about $50 million in upgrades to the equipment and systems to assure reliable and safe drinking water to customers. Nonetheless, the plaintiffs allege, the water system was not upgraded with all of the recommended improvements in advance of distributing the Flint River water to customers' homes in 2014. And the water was distributed without any treatment to reduce its corrosivity and to minimize the leaching of lead from the pipes and solder into the drinking water.

The plaintiffs allege that Flint residents began raising concerns about the safety of their drinking water nearly two years ago. However, government officials dismissed their concerns and insisted that the water was safe to drink. The state officials allegedly disregarded researchers' findings that the water contained dangerously high levels of lead. The plaintiffs allege that the damage done to the city pipes from the Flint River water means that lead will continue to contaminate Flint's drinking water unabated. The ongoing contamination, the plaintiffs allege, poses an ongoing health risk to city residents and in particular young children, who are the most vulnerable to the effects of lead.

On October 1, 2015, the plaintiffs petitioned the United States Environmental Protection Agency (EPA) to issue an emergency order in response to Flint's water crisis as authorized by the SDWA. On January 21, 2016, the EPA issued an Emergency Administrative Order (EPA Order) directing Flint and the State of Michigan to take certain steps to begin to address the...