April 19, 2019

A federal judge ruled Thursday that a lawsuit Flint residents filed against the government over the city’s water crisis can move forward.

The residents sued the U.S. Environmental Protection Agency in 2017 for "mishandling" the crisis, arguing that agency officials negligently responded, including by failing to use its enforcement authority under the Safe Drinking Water Act to intervene, investigate and warn about the health risks.

The government last year sought to dismiss the suit. Its attorneys argued alleged misconduct is exempt from liability under the Federal Tort Claims Act’s discretionary function exception.

. . .

In her opinion Thursday, U.S. District Judge Linda Parker said that when passing the Safe Water Drinking Water Act, “Congress intended to leave the primary responsibility for overseeing public water systems with the states,” but “expressly directed the EPA to intervene under specified conditions.”

“…The EPA’s failure to warn Flint residents of the severe health risks the city’s water supply posed to them cannot be justified by any permissible exercise of policy judgment,” Parker said. “Within weeks of the switch to the Flint River, the people of Flint suffered rashes and hair loss.

"The EPA was well aware that the Flint River was highly corrosive and posed a significant danger of lead leaching out of the city’s lead-based service lines at alarming rates into residents’ homes. The EPA was well aware of the health risks posed by lead exposure, particularly to children and pregnant women. … Further, the EPA knew that (the Michigan Department of Environmental Quality) and Flint officials were not warning Flint’s residents that they were being supplied lead-laced water.”

The complete article can be accessed here.

Cohen Milstein’s Theodore J. Leopold is Interim Co-Lead Counsel in the parallel Flint Water Crisis Class Action Litigation.