Flint Water Cases Go Before Sixth Circuit Panel

CINCINNATI (CN) – Two civil lawsuits over the Flint water crisis were consolidated for a single oral argument before a Sixth Circuit panel on Thursday, with the majority of the debate focused on whether citizens’ constitutional claims were preempted by the Safe Drinking Water Act.

The two suits – one filed against Flint and its city officials and the other against Michigan and state officials – had previously been dismissed for lack of jurisdiction by U.S. District Judge John Corbett O’Meara.

Nick Szokoly, who argued on behalf of the plaintiffs in the city suit, said his clients are “not seeking to enforce rights guaranteed by the Safe Drinking Water Act,” and therefore their civil rights claims can proceed.

The Safe Drinking Water Act, or SDWA, is a federal law that requires the Environmental Protection Agency to set standards for drinking water quality. It applies to all public water systems in the U.S.

Szokoly told the Sixth Circuit panel Thursday that the Flint officials failed to provide sufficient evidence that the Act was intended by Congress to preempt civil rights claims.

Congressional intent would become the focal point of the arguments, with the defendants’ attorneys claiming the “comprehensive scheme” of the SDWA precludes civil rights claims in any case regarding clean drinking water.

William Kim, on behalf of Flint, said the scheme “is the sole source of remedies for claims … that inherently involve safe drinking water.”

However, the state’s attorney, Margaret Bettenhausen, admitted under questioning by Judge Jane Branstetter Stranch that there is no explicit language in the Act that excludes constitutional remedies.

“It doesn’t necessarily have to preclude them explicitly,” she argued, adding that, “In this case, all that’s being alleged is that Flint provided its citizens with water that violated the SDWA.”

Judge Bernice Donald mentioned the demographics of Flint, and asked how Bettenhausen could “escape the equal protection claims” of the citizens.

“The entire district received the same water,” the attorney answered.

Attorney Sam Bagenstos, on behalf of the plaintiffs in the state case, countered this argument in his rebuttal.

Bagenstos said “everybody got together and decided” to use Flint River water for Flint, but not to find other sources of water for the surrounding districts.

He argued the case revolves around a “common sense question of congressional intent,” and that “water is the means by which the violation occurred.”

“I think the dominant theme of the defendant’s portion of the argument is the defendants are trying to pull a mechanical, rigid test out of what the Supreme Court has said is just a common sense inquiry,” the attorney said.

The panel also included Chief Judge R. Guy Cole Jr.

No timetable has been set for the court’s decision.

Thursday’s oral arguments came just a day after Michigan Attorney General Bill Schuette charged the head of the state health department and four others with involuntary manslaughter for their role in the Flint water crisis and related Legionnaires’ disease outbreak.

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