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Concerned Pastors for Social Action v. Khouri

United States District Court, E.D. Michigan, Southern Division

December 2, 2016



          DAVID M. LAWSON United States District Judge.

         On November 10, 2016, the Court ordered that the defendants - operators of the Flint water system - provide the residents of Flint with safe drinking water at the point of use. That ruling was based on testimony furnished by the State defendants that unfiltered tap water delivered to Flint users does not comply with the Lead and Copper Rule and is unsafe to drink. The primary method of water delivery outlined in this Court's order was through the Flint Water System's existing transmission infrastructure with the added protection of properly installed and maintained water filters. The State's witnesses assured the Court that tap water run through a properly installed and maintained water filter is safe to drink. For those households that do not have a properly installed and maintained water filter, the Court ordered the defendants to deliver bottled water.

         The Michigan Attorney General has filed a motion on behalf of the State defendants asking that this Court's order for safe drinking water be stayed. He says that the current method of “delivery, ” whereby Flint residents must find a way to retrieve their own drinking water, and can use water filters that may or may not be installed and maintained correctly, is good enough. He bases his arguments on the premise that all of the factors relevant to a stay pending appeal favor the Court staying the preliminary injunction. He is incorrect. The State defendants' arguments consist of a rehash of contentions advanced and rejected by the Court earlier in this case, a mischaracterization of the nature of the relief ordered, and factual assertions that are unfaithful to the record. The motion to stay the preliminary injunction will be denied.


         Based on the evidence presented by the parties - including the State defendants' witnesses - the Court was convinced that the most effective means to ensure compliance with the Safe Drinking Water Act's (SDWA) Lead and Copper Rule for the benefit of Flint residents was the proper installation and maintenance of faucet water filters for all water system users. That conclusion was supported by the testimony of two of the State defendants' witnesses: MDEQ Chief Bryce Feighner and Michigan State Police Captain Christopher Kelenske. For those households for which the defendants could not demonstrate compliance, the Court ordered that bottled water be delivered.

         In their stay motion, the State defendants cite the cost of monthly delivery of bottled water to 100% of the Flint households as the basis for their conclusion that the Court's remedial order is unreasonable and overbroad. That peculiar argument is based on a demonstrably false premise. Moreover, when considering the nature of the remedy ordered to address the continuing violation of the SWDA's regulations, and the consequences of noncompliance, a balance of the applicable factors does not favor a stay of the preliminary injunction.

         The traditional factors balanced with each other when deciding whether to stay a court's order pending appeal are: “‘(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.'” Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016) (quoting Serv. Emp. Int'l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). The factors are “‘interrelated considerations, '” Husted, 698 F.3d at 343 (quoting Griepentrog, 945 F.2d at 153), meaning that a strong showing of irreparable injury, for example, might make up for a modest showing of likely success, Griepentrog, 945 F.2d at 153-54 (observing that “more of one excuses less of the other” (citations omitted)). However, a defendant seeking to stay a district court's judgment “is still required to show, at a minimum, ‘serious questions going to the merits.'” Ibid. (quoting In re DeLorean, 755 F.2d 1223, 1229 (6th Cir. 1985).


         The State defendants argue that they are likely to be successful on their appeal for at least four reasons. They say, first, that the Treasurer and members of the RTAB are not “operators” of the Flint water system; second, the Eleventh Amendment prohibits the remedial relief the plaintiffs seek because the plaintiffs failed to demonstrate an ongoing violation of the Safe Drinking Water Act (SWDA); third, the injunction is overbroad and unsupported by reliable evidence; and fourth, the Court failed to comply with the security requirement of Federal Rule of Civil Procedure 65(c). The Court will address each in turn.

         The argument that the State defendants - the state treasurer and members of the Flint Receivership Transition Advisory Board (RTAB) - are not operators of the Flint water system has been discussed and rejected in the Court's opinion denying the motion to dismiss, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277, 2016 WL 3626819, at *11 (E.D. Mich. July 7, 2016), and the order for the preliminary injunction, Concerned Pastors, 2016 WL 6647348, at *6-8 (E.D. Mich. Nov. 10, 2016). The State defendants rely on Phillips v. Snyder, 836 F.3d 707, 715-16 (6th Cir. 2016), for the proposition that emergency managers appointed by the governor are local actors. The case contains no such holding, although it does confirm that “states may allocate the powers of subsidiary bodies among elected and non-elected leaders and policymakers.” Id. at 715 (citing Sailors v. Board of Education, 387 U.S. 105 (1967)). And it is true that the mere act by a state governor of appointing a public official - even when that official displaces a locally elected official - does not make the governor responsible for everything that the appointee does. But as discussed in detail in the previous opinions, Michigan law subjects emergency financial managers to oversight by the governor and the state treasurer, and curtails the power of local government officials during the state receivership. Mich. Com. Laws §§ 141.1549(2), (3)(d), (3)(e), (8); Phillips, 836 F.3d at 712.

         Moreover, Flint is still in state receivership and the emergency manager orders are still in effect and cannot be modified by the City. One such order requires the City to take all steps necessary to complete the KWA project. The RTAB must make and approve any decisions to remediate the continuing crisis in Flint, and substantial evidence shows that the State defendants have significant involvement with compliance going forward. Because the State defendants effectively “manage[] . . . the affairs of [the Flint water] facility, ” United States v. Bestfoods, 524 U.S. 51, 66 (1998), they are responsible as operators because they “exercise . . . direction over the facility's activities, ” id. at 71.

         The State defendants' argument that the Eleventh Amendment prohibits the Court's injunction is premised on their belief that there are no ongoing violations of the SDWA. The evidence establishes otherwise. Monitoring violations are continuing and are likely to recur. Neither the sentinel site program nor residential monitoring that relies on volunteers who do not have homes from the pre-selected high-risk pool comply with the Lead and Copper Rule (LCR). Mr. Feighner testified that the sentinel and extended sentinel sites do not all meet the LCR's high-risk criteria. Moreover, as the plaintiffs point out, Flint's Water Treatment Plant Supervisor JoLisa McDay admitted at deposition in July 2016 that the water system did not have the proper monitoring program in place. Nor is it likely that the monitoring will be complied with in the near future because there are not an adequate number of qualified personnel to ensure compliance. Although Mr. Feighner testified about the current monitoring efforts, he did not rebut evidence of inadequate staffing and long-standing violations of the LCR monitoring requirements.

         The State defendants make the point that the Court erred by stating that the 15 ppb “action level” for lead content was a “maximum contaminant level” (MCL). They are correct that this statement was erroneous. The EPA's MCL goal for lead is zero. The EPA decided not to establish an MCL for lead, and instead adopted a treatment technique approach, which set an “action level” of 15 ppb that triggered a number of compliance measures such as corrosion control, source water treatment, lead service line replacement, and public education. Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 FR 26460-01 at 26477. Nonetheless, the plaintiffs are correct that the Court did not rely on the misstatement of an MCL to conclude that the Flint water system did not have optimal corrosion control treatment. The Court summarized the relevant regulations and credited information that showed lead levels in the water both above and below 15 ppb. The Court finally concluded that it is not in dispute that the action level was exceeded, and Mr. Feighner conceded that unfiltered tap water in Flint is not safe to drink at this time. The SDWA violations continue, and the injunction is designed as a remedial measure to order compliance going forward.

         The State defendants' argument that the injunction is overbroad and lacks evidentiary support is based on the mistaken notion that the primary remedial action contemplated is the door-to-door delivery of bottled water to all residents in Flint. The main thrust of the ordered relief is the proper installation and maintenance of tap water filters. For those homes that have properly installed and maintained water filters in place - which is the vast majority of residences, if the State defendants' witnesses are to be believed - bottled water delivery is not necessary and was not ordered. But there are two problems with the State defendants' position. First, handing out a water filter does not ensure that it is effective in reducing lead content of drinking water to an acceptable level. There must be a protocol in place to see that the filters are installed and maintained properly. Otherwise, the presence of a filter alone may cause the more insidious problem of false security in the suitability of the tap water for drinking. Second, for many without a proper filter in place, the difficulty of obtaining drinking water is significant, as the testimony demonstrated. The evidence of a systemwide problem supports the need for systemic relief for Flint residents. The SDWA empowers citizens to act as “private attorneys general” to “seek relief . . . on behalf of society as a whole, ” further suggesting the ...

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