Judge rules USEPA can’t sidestep court’s legal scrutiny in Flint case

As legal cases linger and loom, lessons from the Flint water crisis remain unlearned by Michigan and federal regulators. 
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The long and winding legal road of the Flint water crisis may have hit a turning point last week. 

A federal judge ruled against the U.S. Environmental Protection Agency in a negligence suit brought by Flint citizens.The EPA had sought to bypass the district court and take its defense directly to an appellate court, but Judge Judith Levy wasn’t buying the agency’s plea. 

Previously, EPA asked the court to dismiss the citizen negligence case claiming it is immune from private citizen suits, but that request was also rejected. That leaves EPA 0-2 in its legal attempts to deny accountability for the Flint water crisis. 

Michigan settled a civil suit brought by Flint residents for $600 million and criminal cases against Michigan officials are still pending, though chances of convictions are starting to dim. 

While the state of Michigan was responsible for the crisis, the EPA had direct oversight authority for drinking water and knew about Flint’s issues. But It didn’t use its emergency authority to intervene until well after the crisis had hit a tipping point. 

That’s when Susan Hedman, the EPA regional administrator in Chicago with direct oversight responsibility, resigned under pressure. Hedman had told the Detroit News that her hands were tied when it came to bringing information to the public and action by EPA was delayed while legal counsel was consulted in order to determine the agency's authority, the News reported. 

In 2018 the EPA’s Inspector General released its review of the agency’s handling of Flint and said that “management weaknesses” delayed its response to the Flint crisis. 

The IG report called on EPA to “strengthen its oversight of state drinking water programs to improve efficiency and effectiveness of the agency’s response to drinking water contamination emergencies.” 

How’d that “strengthen oversight” advisory workout?

Not so well in Michigan as evidenced in 2021 in Benton Harbor where citizens and activist groups had been pleading with Michigan’s Department of Environment Great Lakes and Energy (EGLE) to sound the alarm about lead levels in drinking water. 

Hitting a wall, the groups filed a formal petition with the EPA to intervene, which it eventually did. But it was a soft intervention that smacked of collaboration with EGLE while blaming the under-resourced city of Benton Harbor for deficiencies

And, EPA in a press release basically absolved itself of responsibility saying “EPA’s involvement has been instrumental to driving recent actions to ensure people are safe and healthy.”  

Once again, prevention, getting in front of a potential problem, took a back seat to reaction, swooping in like a savior after an issue becomes a crisis as was the case in Flint and Benton Harbor.

And one would think that after all the national attention garnered by the Flint crisis that EPA would have Michigan’s EGLE under a microscope, but no.  

The result? In February the EPA Inspector General announced that it launched a review of EPA’s handling of Benton Harbor’s lead issues. It’s Flint redux and lawsuits abound, again. 

In January I asked environmental law attorney Nick Schroeck how the state of Michigan could break the cycle of repeating lawsuits based on regulation and oversight of municipal drinking water systems.

Schroeck said the lawsuits are based on regulatory failures and “the best way for the state to avoid future litigation is to have an aggressive EGLE making sure that municipalities are following the law and that people have a safe water supply.”   

The key word is “aggressive” and Schroeck’s advice should apply to the EPA too.  

The general nature of regulatory agencies like EGLE and EPA is to play it safe and stay within a narrow interpretation of their authority. Absent is any thought of using moral authority that would lead to decisions that are “right and good.”  

I’d rather agencies take the heat that may come from breaking a few bureaucratic rules or taking a liberal interpretation of what is allowed if it protects citizens from the harm of lead in drinking water. 

But that’s not the prevailing view among regulators and their overseers who think that strict adherence to regulatory protocol is necessary. 

Meanwhile, the lawsuits pile up and the chances of harm to citizens remains. 

gw

Photo: NOAA