JURIST Guest Columnist Mark Latham of Vermont Law School discusses the Flint water crisis…

The Flint residents poisoned by lead-contaminated drinking water were not harmed as a result of some sudden, unexpected natural disaster that left behind in its aftermath thousands of destroyed lives. Sadly, the residents of Flint were the victims of local, state and federal government incompetence at a level rarely seen.

There was, however, a recent small victory for some Flint residents when the Sixth Circuit Court of Appeals rejected the arguments that one of the class action suits filed in state court on behalf of residents and property owners should be removed to federal court. A question to consider, nonetheless, is whether the civil justice system is the best option to compensate the residents of Flint for the harms that they suffered at the hands of local, state and federal officials?

The genesis of this environmental disaster is traceable to the 2011 decision by Governor Rick Snyder’s administration to appoint outsiders to manage Flint in order to right the city’s shaky finances. (This extraordinarily antidemocratic action is allowed under a Michigan law known as Public Act 4.) The appointment of outside, non-elected managers rendered Flint’s duly elected officials impotent to stop the ill-fated decision to provide residents with water from the Flint River. While one could perhaps point fingers at local officials for the fiscal woes that Flint faced, the state deserves criticism, too, since the legislature cut taxes and for years reduced the level of financial support directed towards municipalities.

The appointment of outside managers, in turn, led to the decision to pinch pennies by switching the source of the city’s potable water to the Flint River from the Detroit Water and Sewerage Authority, which had supplied Flint with water from Lake Huron for decades. Due to its legacy as essentially an open sewer, the Flint River was a questionable source of drinking water, even on an interim basis. Its water was much more corrosive and bacteria-laden than the water provided by the DWSA. Nonetheless, this new source of drinking water was foisted upon the citizens of Flint as a safe alternative with catastrophic results. The precise number of affected individuals is not clear nor will the degree of adverse impacts be determined for years. Exactly how, for example, the lead-contaminated water may have affected the thousands of children in Flint who were exposed to it is impossible to know at this point.

Multiple suits have been filed as a result of what happened in Flint, including a class action filed in state court on behalf of affected homeowners and residents against the engineering firms responsible for upgrades to the Flint water treatment plant. The defendants removed the case to federal district court, which ultimately remanded the case back to the state court based on the Class Action Fairness Act, specifically the Act’s provision that allows a state court to maintain jurisdiction under the “local controversy exception.” The federal district court’s decision was affirmed 2-1 by the Sixth Circuit on November 16, 2016.

Given that the plaintiffs reside in Michigan and the exposure to lead occurred there, the decision seems correct that this particular class action suit should remain in state court. But will the residents of Flint who were adversely affected by the lead-contaminated water be well served by the civil justice system, a system founded on adversarial principles to ferret out the facts and where years and years can pass before an ultimate decision is rendered?

Considering those two aspects of the civil justice system – its adversarial nature and the lengthy time it will take to resolve the number of suits that have been filed, the situation in Flint is a poor match to resolve through the courts. Is there, for example, much to be gained by way of new facts from the expensive, time consuming, laborious and often contentious discovery process? What would the opinions of experts add to the understanding of what occurred in Flint? How many more motions and appeals will the residents have to endure before they receive one nickel of compensation for their harms?

What is clear is that government ineptitude at all levels - local, state and federal - exposed tens of thousands of men, women and children to unsafe levels of lead, a potentially deadly neurotoxin. The appointed emergency managers valued saving money more than protecting public health. The Michigan Department of Environmental Quality failed in its crucial oversight role, as it allowed Flint to provide water that was anticipated to leach lead and possibly other heavy metals out of the ancient Flint water distribution system that would ultimately find their way into the taps of the residents. Indeed the Flint Water Advisory Task Force, appointed by Governor Snyder to conduct an independent review of the crisis, determined that the “MDEQ bears primary responsibility for the water contamination in Flint.” Similarly, regulators at US EPA Region 5, the Midwest branch of the EPA that includes Michigan under its oversight umbrella for delegated federal environmental regulatory programs, such as the Safe Drinking Water Act, were slow to respond. For months EPA Region 5 officials didn’t recognize the situation in Flint as a crisis that would have devastating public health effects. Meanwhile, Governor Snyder’s office paid little, if any, attention to what was taking place in Flint until after the catastrophe was well under way.

It is also clear that the affected residents are in desperate need of compensation. Many still cannot consume the water because of ongoing elevated lead levels and others are hesitant to believe that the water in some areas of Flint is now safe for consumption. Costly health monitoring and treatment is required for the thousands of children who have been exposed to lead. Due to the ineptitude of government officials at all levels, the Flint water crisis has also delivered a significant economic blow to a mightily struggling city that can ill afford yet another negative economic event. For example, those residents who own homes now have an asset that has declined sharply in value and that they will likely never be able to sell. In the meantime, the aggrieved residents of Flint wait as the civil justice system’s machinery slowly grinds away, they hope, towards a favorable resolution.

While our civil justice system is perhaps the envy of the world, it is not necessarily the best system to resolve the volume of claims arising out of the harm to Flint residents. This is particularly true where, as here, there are two crucial conclusions that we can reach: 1) there is overwhelming evidence of incompetence leading to harm and 2) the harm is widespread among a large population of victims. With the presence of these two factors the lengthy process of the civil justice system is of questionable value for those who have suffered harm. First, it is a resource intensive system and those resources could be better utilized as part of the compensation that the victims who have been harmed should receive. Second, the civil justice system is not only expensive but also very time consuming. It will undoubtedly be years and years before the plaintiffs learn whether they will receive any damages whatsoever. Third, the end result of the civil justice system as a means to provide compensation is also fraught with uncertainty. The plaintiffs may have the facts and law in their favor but possibly still receive nothing after years and years of hard fought litigation.

Perhaps the Flint plaintiffs will ultimately prevail, but if and when that day will come is anyone’s guess. Consequently, since so many government actors contributed to this debacle, federal and state officials should expeditiously establish a non-litigation-based compensation system for those adversely affected by this unfortunate case of government bungling.

The establishment of an alternative compensation mechanism outside the civil justice system in response to an environmental disaster is not a novel idea; it has been done before. Consider, for example, the massive BP oil spill into the Gulf of Mexico. Rather than requiring those harmed by that environmental catastrophe to litigate their claims, the government and BP agreed to establish a $20 billion extra-judicial compensation system. While far from perfect, the BP fund approach could allow for the effective and prompt compensation for the victims of the Flint water crisis. The funding needed to implement this approach could come from the very parties who significantly contributed to this debacle, namely the state of Michigan and the federal government.

As the Flint Water Advisory Task Force noted in its March 2016 Final Report, “The Flint water crisis is a story of governmental failure, intransigence, unpreparedness, delay, inaction and environmental injustice.” Those harmed as a result should not become victims a second time due to the inefficiencies inherent in the civil justice system. They deserve compensation for their personal and property damage and deserve it now, not years and years from today, if at all.

Professor Mark Latham, who joined the Vermont Law School faculty in 2005, specializes in a range of environmental issues that arise in corporate and commercial real estate transactions and brownfields redevelopment. His research focus includes the intersection of business and environmental law, as well as issues under the federal Clean Water Act. His teaching includes courses in Torts, Environmental Issues in Business Transactions, Corporations and Other Business Organizations and Environmental Law.

Suggested citation: Mark Latham, Will the Civil Justice System Further Victimize the Residents of Flint?, JURIST – Academic Commentary, Dec. 29, 2016, http://jurist.org/academic/2016/29/mark-latham-flint-water-crisis.php.