The EPA Is Not Immune To Lawsuits
Why A Federal Judge Is Allowing A Lawsuit On The Flint Water Crisis To Proceed Despite A Government Shutdown.
“Today is day 4,171 in the ongoing Flint Water Crisis,” Melissa Mays told her local news station in late September.
Melissa is a clean and safe water advocate, who is also a mom to three boys and was one of the first people to email me about the issues in Flint. The water at her house was coming out of the faucet yellow at that time. She said depending on the day, it would smell like rotten eggs, dirt, or bleach. Her family started developing rashes and having clumps of hair fall out. Even their cat was throwing up and losing fur in large clumps. She began talking to her neighbors, who said they were experiencing similar issues.
These symptoms started shortly after the city switched the drinking water source, causing lead, bacteria, and other toxins to leach into the community’s tap water.
Since then, Flint residents have been seeking clean water and justice for their ongoing water and health issues. Hundreds of children have been diagnosed with lead poisoning, and a dozen Flint residents died of Legionella from drinking contaminate water.
Lead is a known neurotoxin that can damage the brain and nervous system, particularly in developing brains of children. No level of exposure is considered safe.
Former Flint Mayor Dayne Walling went as far as to drink the contaminated water on local TV to assure residents it was safe to drink. Later, then-President Barack Obama also drank filtered water on camera.
At one point, criminal charges were filed against many state and local officials in connection to the water disaster, but all charges were eventually dropped.
Plaintiffs Push Forward
More than a decade after the Flint water crisis, the U.S. Environmental Protection Agency is dealing with legal accountability, despite multiple attempts to claim government immunity—and now citing a government shutdown as reason for delay.
Last week, a federal judge denied the EPA’s third request to dismiss the Flint water case she is overseeing. She previously ruled the EPA is not immune from negligence claims tied to the water crisis.
Judge Judith E. Levy of the U.S. District Court for the Eastern District of Michigan made the decision at a hearing in her courtroom earlier today, when she ordered attorneys representing the EPA in a lawsuit brought by city residents to continue working despite the government shutdown.
“Currently there is no end in sight to the lapse in funding,” Levy said. “And plaintiffs and the EPA deserve to have this case resolved.”
The roots of this legal battle stretch back to April 2014, when the city of Flint switched its drinking water source to the Flint River, serving a population of nearly 100,000 residents toxic water.
One of the biggest questions remain. Why didn’t the EPA, the federal agency charged with protecting public health and the environment, intervene?
A 2018 report from the EPA Office of Inspector General acknowledges that the response to Flint’s drinking water contamination involved implementation and oversight lapses at the EPA, the state of Michigan, the Michigan Department of Environmental Quality (MDEQ), and the city of Flint.
“The EPA should strengthen its oversight of state drinking water programs to improve the efficiency and effectiveness of the agency’s response to drinking water contamination emergencies,” the report states.
Why The EPA Can’t Claim Immunity
Federal agencies typically enjoy sovereign immunity, a legal doctrine that protects the government from lawsuits. But in the Flint water crisis, federal judges have repeatedly rejected the EPA’s attempts to hide behind this shield.
The key lies in two important legal frameworks:
The Federal Tort Claims Act (FTCA) allows citizens to sue the federal government for negligence under specific circumstances. Courts have determined that the EPA’s lack of action during the Flint crisis falls squarely within the scope of negligent conduct covered by this act.
The Safe Drinking Water Act created a legal duty for the EPA to oversee local water systems. Plaintiffs argue that the EPA failed this duty by not properly monitoring Flint’s water source switch and by failing to verify that the city was using adequate corrosion controls.
In August 2020, Judge Linda V. Parker dealt what observers called “a crushing blow” to the EPA’s immunity claims, an unprecedented victory for private citizens against a federal agency. Since then, the EPA has attempted to dismiss the case two more times.
The EPA’s Shutdown “Strategy”
Enter the current government shutdown that began on Oct. 1.
The Justice Department, representing the EPA, argued that civil cases should be delayed until federal funding is reinstated. Flint residents who lived through the crisis are pushing back.
Their attorneys argue that the court itself remains operational, deadlines are still weeks away, and other federal courts across the country are continuing to progress with civil cases despite the shutdown.
Most importantly, they note, a stay would mean more delays for clients who have already waited more than a decade for their day in court.
The state of Michigan, the city of Flint, and private companies connected to the water crisis avoided trials through settlements that have totalled nearly $700 million.
If plaintiffs succeed against the EPA, that settlement fund could grow substantially larger, providing more compensation to residents whose health and lives were forever altered by lead exposure.
A Test of Government Accountability
This case represents more than just compensation for Flint residents. It stands as a crucial test of whether federal agencies can be held accountable when their failures harm U.S. citizens.
The EPA’s repeated attempts to dismiss the case, claim immunity, and now seek delays have only strengthened the resolve of plaintiffs who argue they’ve waited long enough.
The message from Flint is clear. Justice delayed is justice denied, and no government shutdown should stand in the way of accountability for one of the worst public health disasters in modern U.S. history.
For the thousands of Flint residents still living with the consequences of lead exposure, including children who will face lifelong developmental challenges, this lawsuit represents perhaps their last chance for acknowledgment that the federal government failed in its most basic duty: to protect them.
What do you think about the EPA’s attempted delays and the community of Flint’s continued fight? Keep the conversation going in the comments below.
“The EPA failed to keep children and families safe during the water crisis. It is outrageous that a decade has passed without the EPA admitting its mistake and paying the citizens of Flint what they are owed. The EPA administrator should settle this lawsuit right now.” – Rep. Kristen McDonald Rivet (D-MI), in a statement about a lawsuit against the EPA for its role in the Flint water crisis.