United States District Court, E.D. Michigan, Southern Division
CONCERNED PASTORS FOR SOCIAL ACTION, MELISSA MAYS, AMERICAN LIBERTIES UNION OF MICHIGAN, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs,
NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, DAVID MCGHEE, MICHAEL A. FINNEY, BEVERLY WALKER-GRIFFEA, NATASHA HENDERSON, and CITY OF FLINT, Defendants.
OPINION AND ORDER DENYING MOTION TO STAY PRELIMINARY
M. LAWSON United States District Judge.
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.
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.
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.
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
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).
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.
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.
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.
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.
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.
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 ...