Flint, Michigan – On Wednesday, April 26, 2020, Levy Konigsberg attorneys Corey Stern and Renner Walker defeated a motion to dismiss filed by the Environmental Protection Agency (“EPA”). The federal district court ruled that the EPA’s sovereign immunity defense did not apply and that the Flint residents’ Federal Tort Claims Act (“FTCA”) lawsuit may proceed.

The plaintiffs are suing the EPA under the FTCA, a statute that does not create liability but rather waives a defense based upon sovereign immunity where the United States or its agents or employees (here, EPA Region 5 officials in Michigan) would be liable if they were a “private person.” There are several exceptions to the FTCA, however, including two that the EPA argued applied in this case. Ultimately, the Court agreed with the plaintiffs (1) that the EPA officials here would be liable if they were “private persons and (2) that neither of the exceptions to the FTCA that the EPA advanced applied in this case.

The Court held that the EPA could be held liable under Michigan law in the same way a “private person” could.

The Court held that a Michigan common law doctrine—the “Good Samaritan doctrine”—applied. The Good Samaritan doctrine holds that if a person voluntarily undertakes to perform services or duties for another, they must exercise reasonable care while doing so. And, importantly, the Court found that the EPA did voluntarily undertake to perform services for the citizens of Flint.

Not long after the City of Flint’s water was switched from safe and pre-treated water from Detroit to highly corrosive water from the Flint River, EPA Region 5 began receiving complaints about Flint’s water. EPA officials began investigating the situation as early as January 2015 and also responded to many complaints. Yet, despite an internal report by the EPA’s top water expert in June 2015 that painted a dire picture of Flint’s water, the EPA took no action for months. Indeed, even after EPA investigators caught Michigan Department of Environmental Quality officials in a lie about whether the City of Flint was taking a necessary precaution known as “corrosion control” in the spring of 2015, the EPA took no action to intervene. Even worse, some of the EPA’s correspondence with Flint citizens who submitted complaints about the water actually reassured those citizens—wrongly—of the Flint water’s safety.

Ultimately, the EPA did not take concrete action to intervene in Flint until January 2016, nearly a year after it began inspecting the matter in earnest, and more than six months after it had ample evidence to know that action was necessary. Even a stunning independent assessment by the EPA’s Inspector General in 2018 concluded that “While Flint residents were being exposed to lead in drinking water, the federal response was delayed, in part, because the EPA did not establish clear roles and responsibilities, risk assessment procedures, effective communication, and proactive oversight tools.”

The EPA failed to prove that either of two exceptions to the FTCA applied in this case.

The EPA also argued that two exceptions to the FTCA’s waiver of sovereign immunity applied. Primarily, the EPA argued that its actions in Flint were discretionary and so the “discretionary function exception” immunized its negligence and misconduct. The Court disagreed, explaining that for the discretionary function exception to apply, two conditions must be met. First, the authority the government agent is acting under—such as a statute, regulation, or statement of agency policy—must actually provide the government official with some discretion. If the statute imposes a mandatory duty, then the government employee has no discretion and the exception cannot apply. Second, discretion authorized by the statute or regulation must be the kind of discretion that the FTCA’s exception was meant to protect. In the classic example, driving a car involves constant discretion—such as what speed to drive, and when and where to turn—but these individual driving decisions are not the kind of discretionary decisions the FTCA’s exception was meant to protect. Instead, the FTCA’s discretionary function exception was only intended to insulate exercises of discretion in public policy.

Here, the Plaintiffs pointed to two statutes: Sections 1431 and 1414 of the Safe Drinking Water Act (“SDWA”). The Court held that although section 1431 was discretionary under the first condition, section 1414 was not. While section 1431 says that the EPA “may” take action under certain circumstances, section 1414 says the EPA “shall” take one of two actions after 30 days of inaction by a state when there is an environmental violation. Since the EPA took no action at all after 30 days had passed, it had violated a mandatory duty. The Court went on, however, and found that even if both statutes allowed for some discretion, it wasn’t the kind of discretion the FTCA’s discretionary function was intended to protect. The FTCA was intended to protect considerations of social, economic, and political policy—not professional and scientific judgments, particularly where they concern public safety. And the Court concluded that with an environmental justice disaster as grave as the Flint Water Crisis, no reasonable EPA official could see the EPA’s response to it as susceptible to policy analysis.

As a backup argument, the EPA argued that certain aspects of plaintiffs’ claims were barred by the so-called “misrepresentation exception,” which preserves sovereign immunity with respect to claims based on fraudulent statements or other misrepresentations by government officials. The Court again disagreed, reasoning that the misrepresentation exception was generally limited to commercial and financial interests—not public health concerns. The Court added that the misrepresentation exception only applies when the alleged misrepresentations are “essential” to the plaintiffs’ claims. Since the plaintiffs’ allegations here sounded generally in negligence—as opposed to fraud, for example—the Court held that the EPA’s misleading responses to Flint residents’ complaints were relevant to whether the EPA was negligent and were not barred by the misrepresentation exception.

The Plaintiffs are pressing forward to trial.

The Court’s ruling comes on the heels of the announcement that the State of Michigan entered into a $600,000,000 settlement to resolve claims against state employees and officials arising out of the Flint Water Crisis. The State of Michigan’s settlement is a partial one, however, and so litigation is still moving forward against other defendants, including the EPA, the City of Flint, and certain engineering companies who helped create and prolong the Flint Water Crisis. Yet, these other defendants are allowed to join the settlement and, as Corey Stern told MLive-TheFlint Journal that the EPA should take its “share of responsibility” and join the settlement. In the meantime, Levy Konigsberg attorneys are pressing ahead and getting ready for a trial, which could come in early 2021.

Levy Konigsberg has been fighting for justice for more than thirty years on behalf of real people against corporations and governments who tortiously injure them, including children poisoned by lead, persons who have been diagnosed with mesothelioma because of asbestos, survivors of child sexual abuse, and patients harmed by defective drugs and medical devices. We have a proven track record of getting the best outcome possible for our clients. If you or a loved one has been injured, don’t hesitate to reach out to us today for a free consultation. You can reach us by dialing 1-800-988-8005, by completing the webform at the top of this page, or by taking advantage of the “live chat” function to the right.




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