Panel asked to hold Georgia’s ‘carpet capital’ liable for contaminated drinking water

ATLANTA (CN) — The 11th Circuit heard arguments Tuesday from a group of residents from Rome, Georgia, who want an upstream city to be held liable for allowing chemical contamination from carpet manufacturers to get through a water treatment facility.

Deemed "the carpet capital of the world," nearly 90% of the world's carpet has been produced in Dalton, Georgia, since the 1990s, and the wastewater produced from these facilities is collected and treated by Dalton Utilities.

The water then travels down the Oostanaula River and supplies drinking water to the city of Rome, which had to implement an emergency filtration process in 2016 due to concerns of the water being contaminated with dangerous levels of PFAS, polyfluoroalkyl substances, also known as "forever chemicals."

These chemicals are widely used by carpet manufacturing facilities for their ability to repel stains, but they take a long time to break down and in high amounts can have harmful effects on human health, including decreased fertility and developmental delays in children.

To cover the costs of the special filtration system, the city of Rome invoked a surcharge on the price of water for all ratepayers, and estimates that the rate will increase at least 2.5% each year for the foreseeable future.

Jarrod Johnson, who owns property in Rome, and other citizens filed a lawsuit in 2019 against multiple carpet manufacturers, Dalton and Dalton Utilities, alleging the city's facility violated the Clean Water Act and created a public nuisance by allowing the contamination of the area's drinking water.

Although other aspects of the case are still proceeding, Dalton Utilities appealed an order by the district court denying its motion to dismiss Johnson's nuisance abatement claim. It argued that sovereign immunity shields municipal entities, such as the city commissioners operating the facility, from liability unless waived by the Georgia General Assembly or the state's constitution.

U.S. District Judge Amy Totenberg, a Barack Obama appointee, relied on precedent from the Georgia Supreme Court that ruled "a municipality[,] like any other individual or private corporation[,] may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or ministerial function."

Totenberg's ruling stems from a 1968 case in which the town of Fort Oglethorpe was held liable for knowing about and allowing a defective traffic light to continue operating, which resulted in several car collisions.

At Tuesday's hearing, the three-judge 11th Circuit panel indicated their opinion will rely heavily on this precedent, which has been quoted in multiple other cases. The judges also suggested the possibility of certifying the question of how to properly apply this precedent to the Georgia Supreme Court for their interpretation.

Dalton Utilities attorney Lindsey Mann said in a brief to the Atlanta-based appeals court that the precedent should be overturned "because the expansive, judge-made nuisance exception articulated in Town of Fort Oglethorpe runs afoul of the Supreme Court’s unambiguous instruction that any waiver of sovereign immunity 'must be found in the constitution itself, or in the statutory law."

To so-called just compensation provision of the Georgia Constitution provides an exception to sovereign immunity for nuisance claims, but is limited to alleged "taking and damaging of private property without adequate compensation."

Mann argued Tuesday that Johnson failed to show how Dalton took or damaged his personal property and that he only alleges "a nuisance to life and health."

But Johnson's attorney Brett Thompson argued in his brief to the court that his client's "household water has been both purchased and reduced to his possession. Whether as groundwater or through its purchase and possession, plaintiff’s household water is plainly his property under Georgia law."

But U.S. Circuit Judge Robert Luck, a Donald Trump appointee, seemed unpersuaded by that argument.

"I'm having trouble with your theory that you own the water while it's in your pipes," Luck said.

The judge compared Thompson's argument to hypothetically taking electricity, which he said would be stealing from the power company and not an individual.

Luck was joined on the panel by U.S. Circuit Judges Andrew Brasher, a fellow Trump appointee, and Chief U.S. Circuit Judge Edward Carnes, a George H.W. Bush appointee. The judges did not indicate when they intend to issue a ruling.

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