Top court hears case over Flint water liability

By Ed White
Associated Press

DETROIT (AP) — Lawyers have urged the Michigan Supreme Court to clear the way for Flint residents to sue state officials over lead-contaminated water.

The case at the state’s highest court is one of many in state and federal courts over the scandal. What’s unique, however, is that it could break ground in exposing public officials to liability over alleged violations of the state constitution.

Justice Stephen Markman recently peppered lawyers on both sides with questions, acknowledging that the Flint water crisis was a “terrible harm.” But not every harm, he added, violates the constitution and deserves a remedy.

The attorney general’s office is appealing a 2018 decision by the state appeals court, which said that Flint residents could pursue a violation of their right to “bodily integrity.”

Julie Hurwitz, an attorney for a large potential class of Flint residents, said the case involves tainted water but the issue is much broader: a right to have government tell citizens the truth.

“If we cannot hold this state accountable for its role in perpetuating an ongoing invasion of poison in our communities, I would suggest our constitution would not be worth the paper it’s written on,” Hurwitz said.

Flint used water from the Flint River in 2014-15 without treating it to reduce a corrosive effect on old pipes. As a result, lead leached into the system. The river was supposed to be a temporary step while a pipeline was built to Lake Huron.

A panel appointed by then-Gov. Rick Snyder said the Snyder administration was “fundamentally accountable” for the crisis because of decisions made by environmental regulators.

In remarks to the Supreme Court, Assistant Attorney General Nate Gambill said the appeals court ruling should be overturned. He's representing Snyder and two state departments.

“There is no policy maker who authorized or mandated that low-level staffers go out and expose the plaintiffs to toxic water,” Gambill argued.
He also said Flint residents had a six-month window to file notice of a lawsuit and waited too long.

Justice Richard Bernstein said the case will determine if Flint residents can at least get a foot in the courthouse.

“That’s the only thing before us,” Bernstein said.