Hundreds of Benton Harbor children ask Sixth Circuit to revive claims over lead poisoning from drinking water
The case has similar characteristics to the much more publicized Flint, Michigan, water crisis, but among its notable differences is what caused the tainted water.
Joe Harris / October 29, 2024
CINCINNATI (CN) â Hundreds of children who suffered lead poisoning from contaminated drinking water asked the Sixth Circuit on Tuesday to revive their case against state and city officials who they claim concealed and prolonged the crisis.
Because of the officials' decisions, lead levels were more than 50 times greater than the "threshold action level" for more than three years, according to the plaintiffs, who filed a federal lawsuit in 2022. It was dismissed by a judge who found the defendants were entitled to qualified immunity.
The case has similar characteristics to the much more highly publicized Flint, Michigan, water crisis â but among its notable differences is the cause of the tainted water. Attorney Melanie P. Daly argued that her clients' case doesn't have to line up exactly with the Flint case in order for them to receive damages.
âCircumstances matter,â Daly, of the New York firm Levy Konigsberg, told the three-judge panel. âThe role of the city and state defendants and what they knew through these roles elevates their conduct in this case to conscious shocking.â
The two groups of defendants consist of city and state officials. Thomas J. Rheaume Jr., of Bodman PLC in Detroit, represented the city defendants and argued their actions did not rise to actual negligence.
He told the court that plaintiffsâ constitutional claims fall short because there is no governmental right to clean drinking water.
âRules of the state and federal government do not require an immediate cessation of the delivery of water after testing for lead,â Rheaume said. âThere is a treatment program. There's planning. It's 6 to 12 months before they're even required to implement corrosion control. So the idea we have to immediately stop is somewhat silly.â
Senior U.S. Circuit Judge R. Guy Cole Jr., a Bill Clinton appointee, questioned Daly on whether defendantsâ actions rose to the level of deliberate indifference.
âThey knew that the Benton Harbor water system had tons of lead surface lines, only 2% were known to not have lead, and they also knew that there were a lot of internal plumbing components that had lead,â Daly said. âThose are major danger factors.â
The defendants used a corrosion control method that EPA guidelines said could make the lead issues worse â which is ultimately what happened, the attorney said.
U.S. Circuit Judge Karen Nelson Moore, a Clinton appointee, and U.S. Circuit Judge Joan L. Larsen, a Donald Trump appointee, both questioned Daly on the term âEPA guidanceâ and how it differed from a requirement.
âWhen they found that there was increase in lead in October 2018, they saw that they had a time to act,â Daly said. âThey knew that at that time they should tell the people, be extremely transparent, don't drink the water. They should immediately implement optimized corrosion control, which they did not, and they should address the deficiencies at the water treatment plant.â
Rebecca M. Smith, of the Michigan Attorney Generalâs Office in the Natural Resources & Agriculture Division, represented the state defendants. She took aim at Dalyâs arguments about the defendantsâ corrosion control decisions.
âAfter reviewing the application, and everything submitted with this application indicated that this was a corrosion control product that was commonly used that effectively reduced corrosion in pipes, that effectively reduced corrosion and potable water coming from pipes,â Smith said. âSo, they had no reason to think that it would be ineffective in this case.â
Cole asked Smith why the state didnât conduct better monitoring of the situation.
âThat monitoring showed that the corrosion control was working, but maybe not working as quickly as everyone expected, then the corrosion control was modified in order to more quickly remediate lead,â Smith said. âThere's nothing shocking in conduct, in trying to get lead levels down and over time, investigating and ensuring that the proper corrosion control is used and modified to be even more effective over time.â
Benton Harbor, a town of 8,875 in the southwest corner of Michigan, is 87.4% Black with a median household income of $26,592, according to the latest census. The water crisis began in 2018, but trouble started in 2010 when Michigan declared a state of financial emergency for the city, slashing the budget and resources for the cityâs water treatment plant.
The state of emergency was lifted in 2016, but the plaintiffs claim the water plant still lacked the financial resources to deliver safe drinking water through an aging infrastructure composed primarily of lead components.
The plaintiffs claim they are entitled to the same protection afforded to the children of Flint, while the defendants argue that the lower court correctly ruled they are entitled to qualified immunity.
There is no timetable for the courtâs decision.
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Why Nazis Jones Day Defendants Must TRY THE PLAINTIFFSâ constitutional claims fall short because there is no governmental right to clean drinking water.