Experts: State’s water suit against Flint faces hurdles

Legal experts say state government faces challenges in proving to a Detroit federal judge that the Flint City Council is putting residents’ health at risk by delaying a decision on a long-term water source for the city recovering from lead contamination.

Lawyers will meet Tuesday for a scheduling conference. If the city of Flint and the state can’t resolve the issue out of court, lawyers for the Michigan Department of Environmental Quality are expected to argue that the council’s delay on signing a long-term water contract with the Great Lakes Water Authority — Detroit’s regional water authority — is endangering residents’ health because no other viable options exist.

The threat is “imminent,” according to the suit filed in late June.

Attorneys for Flint Mayor Karen Weaver from Troy-based Harvey Kruse, P.C., argued in a Friday filing the city denies any factual basis for the state’s allegations and “is concerned about a severely expedited case because it could give the appearance of a lack of transparency and appear improper to Flint residents.”

The state faces difficulties in getting Judge David Lawson to apply federal and state safe drinking water laws, said legal experts at the University of California Santa Barbara, Wayne State University and the Great Lakes Environmental Law Center.

DEQ officials say the Flint council is violating the Safe Drinking Water Act by putting a safe drinking water source for Flint residents’ at risk.

States rarely sue city councils, the legal experts said, and the Safe Drinking Water Act has been applied in the past to existing public health threats.

Proving the public’s health is endangered will be difficult, said James Salzman, a professor of environmental law at the UCLA Bren School of Environmental Science in Santa Barbara, California. Salzman, an expert in drinking water issues and environmental conflicts, and others said state officials are using a section of federal law in a way never anticipated.

“This is probably simply part of the larger strategy of getting the agreement approved,” Salzman said. “...This strikes me as basically trying to ‘lawyer up’ in order to put some pressure on the City Council.”

But this kind of pre-emptive strike is “very appropriate” because ultimately “the point of the Safe Drinking Water Act (is) ensuring that we have a safe water supply delivered to our citizens,” said Nicholas Schroeck, an environmental law professor at Wayne State University.

“Public health considerations are very powerful,” Schroeck said.

The state’s lawsuit came 15 months after a task force appointed by Gov. Rick Snyder accused the Republican administration and others in state government of “failure, intransigence, unpreparedness, delay, inaction and environmental injustice” in the contamination of Flint’s water supply.

The irony and problem is the state is using a U.S. Environmental Protection Agency order compelling the state to address Flint’s water issues as a justification for a court intervention against Flint’s city council on the proposed 30-year water contract, the experts said.

Former and current state environmental and health officials face state criminal charges for their roles in the water contamination and a subsequent Legionnaires’ disease outbreak that killed 12 people.

“It’s gonna be difficult for the judge to do something about this,” Oday Salim, executive director of the Great Lakes Environmental Law Center.

Although Weaver supports the proposed water contract, council members have argued they need more time to assess alternatives. The council hired Mt. Morris attorney Peter Doerr to represent the council, which is asking to intervene in the state’s suit against Flint.

Doerr and Flint City Council President Kerry Nelson did not return a phone call for comment.

Signing a deal with the Detroit area authority saves Flint from tens of millions of dollars of debt and water plant upgrades, according to the state’s legal complaint.

The deal would make Detroit’s regional water authority responsible for debt that Flint owes to another regional water system still under construction — the Karegnondi Water Authority — that the city wouldn’t be able to use without about $59 million to $68 million in upgrades to Flint’s water treatment plant. Upgrades to the treatment plant would also take about three and a half years.

The Great Lakes Water authority deal also would save money compared with the KWA agreement, according to the state.

State officials might be taking aggressive action to show that they can protect the public’s health after widespread criticism they were too lax on enforcement in the past, Schroeck said.

“What’s really remarkable to me reading through that complaint was thinking back a few years ago, and really the hands-off approach that DEQ took when we had a lot of these decisions about Flint being made by emergency managers,” he said.

“So now you have a situation where DEQ is taking a very active and aggressive role in ensuring that the law is followed and that people have safe water to drink. And you have City Council saying, ‘Well, wait a minute. Let’s make sure this is the best deal for the people of Flint.’”

It remains to be seen whether the Great Lakes authority could negotiate another short-term contract with Flint while its council ponders the proposed contract and looks for other options, Salim said.

“Politically speaking, I don’t see how the parties don’t come to some resolution,” he said.

mgerstein@detroitnews.com