Flint to Biden: Pay up for city’s water misery
Residents have yet to receive a cent from settlement fund
As they observe Thursday’s 10th anniversary of the lead poisoning of Flint’s drinking water, city residents are calling on President Joe Biden to acknowledge a federal role in the disaster and approve funds to settle a 7-year-old lawsuit against the U.S. Environmental Protection Agency.
The state of Michigan agreed in 2020 to pay $600 million for its role in what came to be known as the Flint water crisis, and the city of Flint settled for $20 million in the same massive lawsuit.
But the EPA, which is charged with ensuring compliance with the Safe Drinking Water Act, has never acknowledged liability for its role, despite a paper trail that shows its officials knew about dangerously inadequate treatment of water from the Flint River months before residents were notified.
In February, the EPA asked U.S. District Judge Linda Parker in Detroit to dismiss a lawsuit brought against it by thousands of Flint residents, based on a type of governmental immunity, despite the fact Parker in 2019 rejected similar arguments from the federal agency.
“The disaster was preventable had the EPA simply done its job,” Flint residents Jan Burgess, Rhonda Kelso and Melissa Mays, who are plaintiffs in the lawsuit brought under the Federal Tort Claims Act, said in a Tuesday letter to Biden, who was vice president when the water crisis began.
The EPA “stood by and reinforced the state’s false assurances to us that our drinking water was safe, despite knowing that it was a lie.”
The White House had no immediate response to the letter, a spokeswoman said.
The water crisis began on April 25, 2014,
when the city switched the source of its water supply from Lake Huron to the Flint River, as a temporary cost-cutting measure, at the direction of a state-appointed emergency manager.
A state agency then called the Michigan Department of Environmental Quality has acknowledged a catastrophic error in not requiring the city to treat the raw water with corrosion control chemicals. As a result, lead leached from pipes and fixtures, causing a spike in blood lead levels, which is especially harmful to the brain development of children. Lead poisoning can also contribute to cardiovascular disease and other health ailments in adults.
The EPA was almost immediately inundated with complaints about discolored and badsmelling drinking water, and “by April 2015 the EPA was aware that the state lied to them in February 2015” when it said it was using corrosion control as part of its water treatment, according to pleadings in the case. Yet, the EPA, which has a responsibility to notify the public of unsafe drinking water, took no enforcement action until January 2016.
A 2018 report by the EPA Office of Inspector General said the agency “did not manage its drinking water oversight program in a way that facilitated effective oversight and timely intervention in Flint.”
In its February filing in the case before Parker, the EPA said the claims should be dismissed under a “discretionary function exception” to the Tort Claims Act. The agency argues it had discretion in how to respond when it learned, in April 2015, that Flint was not using corrosion control, and its decision on how to proceed was subject to “policy analysis.”
The EPA “faced difficult decisions regarding how best to reinstitute corrosion control quickly and effectively,” the agency argued.
In their response, the plaintiffs said the EPA had no discretion to violate the constitutional rights of Flint residents.
Cary McGehee, a Royal Oak attorney representing the plaintiffs, said Tuesday it is difficult to estimate how much the EPA should pay Flint residents to settle the claims. The case against the EPA includes claims for psychological trauma, emotional distress and disruption to life that were not part of the settlement the state of Michigan made with Flint residents, she said.
“Your administration publicly expressed dismay and shock about what was going on in our city, and yet, to this date, the federal government is the only entity that refuses to take any responsibility for its failures,” Burgess, Kelso and Mays said in the letter to Biden.
Despite the settlement with the state and some other defendants, Flint residents have yet to see a dime from the $626.25 million settlement fund announced in 2020 and are not expected to be paid for several more months, due to delays in the claims administration process.
The Free Press reported in March that while Flint residents continue to wait, lawyers in the case have received partial payments totaling $40.8 million, plus $7.1 million in expenses, and the court has authorized an additional $17 million in payments for claims administration expenses.