Federal appeals court opens the door to Constitutional claims against state officials for dangerous and inaccessible drinking water in Flint

A federal appeals court has allowed two lawsuits by Flint residents against state officials for Constitutional violations arising from the Flint water crisis to go forward, giving victims a big legal win with even bigger implications. In Boler v. Earley and Mays v. Snyder, 865 F.3d 391 (6th Cir. 2017), cert. denied, 583 U.S. __ (2018), the court held that alleged violations of substantive due process and equal protection could be brought in federal court against the state-appointed emergency manager (defendant Darnell Earley), the governor (defendant Rick Snyder), and over a dozen other public officials. The district court below had dismissed the Constitutional claims on various jurisdictional and legal grounds, ruling that plaintiffs were limited to remedies under the federal Safe Drinking Water Act. But a unanimous panel of the Sixth Circuit Court of Appeals reversed the lower court and rejected most of the state defendants’ arguments, most importantly holding that the federal Safe Drinking Water Act does not preempt Constitutional claims.

The plaintiffs in the two lawsuits (which were consolidated for appeal) brought suits pursuant to 42 U.S.C. § 1983 (which provides a federal cause of action for damages for violations of the Constitution) against the public officials for harm from lead poisoning, water contamination, and lack of access to safe water. The claims included: (1) violation of substantive due process through state-created danger; (2) violation of substantive due process through an invasion of the fundamental right to bodily integrity; (3) intentional race discrimination in violation of the Equal Protection Clause; and (4) impermissible wealth-based discrimination in violation of the Equal Protection Clause.

Before addressing the legal merits, the federal appeals court first summarized how state government, from the legislature and governor on down, created the Flint water crisis. The court especially focused on the passage (and re-passage) of the emergency manager law, the lack of democratic local government in Flint, and the decision to put Flint on untreated water from the Flint River while surrounding (wealthier) townships stayed with the treated Detroit water system.

The court then held that the federal Safe Drinking Water Act was not a substitute for protecting Constitutional rights that may have been violated in Flint. The SDWA directs the EPA to establish standards and compliance procedures and allows citizens to seek injunctions against violations. But the SDWA does not guard against unequal protection under those standards or deprivations of rights regardless of whether a system is deemed to be in compliance. The court first explained how an equal protection violation could arise under the SDWA:

“A government entity could provide some customers with water that meets the requirements of SDWA standards, but that is nonetheless dirtier, smellier, or of demonstrably poorer quality than water provided to other customers.… Even though not violating the SDWA, these situations could create an equal protection issue, particularly if such distinction were based on intentional discrimination or lacked a rational basis.”

The court then similarly laid out the basis for a substantive due process violation under the SDWA:

“Likewise, a state actor’s deliberately indifferent action concerning contaminants in public water systems, which created a special danger to a plaintiff that the state knew or should have known about, could violate the Due Process Clause without also violating the SDWA, if the hypothetical contaminants did not exceed the statutory maximums or were not regulated by it.”

The cases are now remanded back to district court (Eastern District of Michigan) where the plaintiffs can try their claims for Constitutional violations. Thanks to the many advocates for tireless work, from lead plaintiff Melissa Mays to the crew of dedicated Michigan civil rights lawyers and Michigan Law Professor Samuel Bagenstos. Looking beyond these two cases, the court’s decision may clear the way for more Constitutional litigation against environmental injustice at the hands of state actors. (See this recent article, After Flint: Environmental Justice as Equal Protection, by Northwestern University law professors David Dana and Deborah Tuerkheimer.) The Flint water crisis has shown the tremendous inequality and inequity within environmental law but this win could give citizens a new tool to protect their health and rights.

Special thanks to GLELC Fellow Erin Mette for research on this case.