DALLAS --Two recent actions pave the way forward for lawsuits against the state of Michigan and its officials over Flint's water contamination crisis.
On Thursday, Michigan Court of Appeals Judge Mark T. Boonstra ruled that Flint residents are permitted to sue Michigan state officials for decisions that led to Flint's drinking water contamination problems.
That means lawsuits filed against Gov. Rick Snyder, former Flint emergency managers Darnell Earley and Jerry Amborse, and the state departments of Environmental Quality and Health and Human Services can now proceed. The potential costs to the state if found liable remains unclear, officials said. The state also could be on the hook for the litigation costs resulting from the lawsuits.
According to the ruling, residents have provided sufficient facts in their lawsuit against the state over contaminated water that, "if proven," would show actions by the state were "so arbitrary in a constitutional sense, as to shock the conscience."
Boonstra rejected the state's arguments that Flint residents did not file their lawsuit within six months of the water crisis date, calling them "unpersuasive."
"Were the court to accept defendants' position, it would have to find that the plaintiffs' claims are barred because they should have filed suit (or notice) at a time when the state itself was stating that it lacked any reason to know that the water supply was contaminated," the judge wrote in his ruling.
In a separate development, the city of Flint can now also sue the state without permission from its state-appointed board. Flint's five-member receivership transition advisory board, which has partial control over the city's governance, said on Wednesday it cannot prevent the city from suing the state over the water contamination crisis.
The board's decision came in response to Michigan Democratic members of Congress request that the U.S. Department of Justice investigate the board's September decision that said the city was prevented from taking such action without its permission.
"The intent wasn't initially to prevent initiating litigation," said Danelle Gittus, a Department of Treasury spokeswoman. "It was to require more collaboration on settlements. The new language clarifies this and doesn't imply that the RTAB would be able to prevent the city from initiating litigation"
In March, the board recommended an order issued by a former emergency manager in Flint be changed to require RTAB approval before the city could file any lawsuit.
Flint filed a notice with the Michigan Court of Claims March 24, giving notice of its intent to sue the state, the Department of Environmental Quality and four DEQ employees; city officials said at the time they were simply protecting their future options.
Kurt Weiss, as spokesperson for the state budget office, said that at this point there's no way to know or forecast what the total costs associated with the Flint lawsuits could be.
The state has about $17.5 million allocated for legal services which can be used for litigation costs to cover state officials. "We put $5 million in the current fiscal year budget for what we call 'legal services' and in the last fiscal year, a supplemental was passed for Flint that included $11 million for legal services," Weiss said. "We also had some carry forward money for legal services from back in fiscal year 2015, which can be used for litigation costs."
Michigan is spending $240 million as part of the 2017 budget to deal with the Flint water crisis. The state has allocated funding for items like corrosion control, water quality testing, nutritional services, lead investigations and educational supports.
Michigan carries ratings of Aa1 from Moody's Investors Service, AA-minus from Standard & Poor's Global Ratings, and AA from Fitch Ratings.
The crisis began after the city, under oversight of an emergency manager appointed by Snyder, broke off from the Detroit Water and Sewerage System in 2014 when its contract to receive Detroit-supplied water ended.
The city began pulling water from the Flint River and intended to use it until later this year, when it links to a new Karegnondi Water Authority pipeline. The Flint River water wasn't property treated and corroded pipes throughout the system, creating contamination that remained even after the city switched back to Detroit water.
Snyder has been criticized for the emergency manager-driven decisions about Flint's water supply.
