Michigan High Court OKs Flint Residents’ Class Action Over Lead

July 29, 2020, 7:29 PM

Residents of Flint, Mich., can bring a class action against the state and their former governor for personal injury and property damage caused by the city switching to untreated river water that corroded pipes in 2014, which exposed thousands to lead-contaminated drinking water.

The residents can bring claims alleging damages for diminution of property value and for harm to their bodily integrity against state officials and former Gov. Rick Snyder (R), the Michigan Supreme Court held in a highly divided set of rulings Wednesday that split the justices in several directions.

Four justices wrote across various opinions to uphold the plaintiffs’ right to seek property damages through a claim of “inverse-condemnation,” in which plaintiffs can argue that a government action that harms their property would result in an unconstitutional taking without compensating.

Chief Justice Bridget McCormack and Justices Richard Bernstein, Megan Cavanagh, and David Viviano found the plaintiffs’ property damage met the claim’s two required elements: that the damage be different in kind, not just degree, from damage suffered by similarly situated people; and that the government committed an affirmative act directed at the property.

The damage was different in kind, they said, because of corrosion caused by untreated Flint River water put through the city’s system to save money. The plaintiffs also alleged an affirmative act—a coverup by officials claiming the water wasn’t to blame for problems.

Lead-Tainted Water

The residents can also claim that the state’s actions in allowing the water switch violated the plaintiffs’ substantive due-process right to bodily integrity under the Michigan Constitution.

That claim survived “by equal division,” which means that the court split three-for and three-against, with Justice Elizabeth Clement, Snyder’s former chief legal counsel, abstaining.

With no majority, the Court of Appeals decision upholding that state-constitutional claim stands.

Residents of Flint, one of Michigan’s poorest communities, ended up drinking lead-tainted water after city water resources were switched to save money in 2014. The ensuing crisis spurred widespread state and federal efforts to replace lead service lines in the industrial city, and cast light on the ongoing risk from lead pipes across parts of the country.

The cases are Mays v. Snyder, Mich., Nos. 157335, 157336, 157337, 157340, 157341, 157342, opinion 7/29/20.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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