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Federal judge chastises state for "slow-walking" order in Flint water case

Jan 25, 2017

A federal lawsuit over the state’s response to the Flint water crisis was back in court Tuesday, for arguments over whether the state has ignored a judge’s order to ensure Flint residents have access to safe drinking water.

In November, Judge David Lawson issued an injunction ordering the state to do two things: verify that all Flint households have properly-installed water filters; or, in cases where that’s not possible, deliver bottled water. The state wants that order dismissed.

Lawyers for the plaintiffs told Lawson the state and city of Flint “didn’t comply and do not intend to comply” with his order, noting that the filter verification effort is “plagued with problems,” and the state has made no effort whatsoever to deliver bottled water.

The state insists it hasn’t ignored Lawson’s order. But it admits that it’s struggled to fully staff the CORE program, which is devoted to canvassing the city to check on water filters. And it says that organizing bottled water delivery has proved impossible so far.

The state is “going forward as fast as reasonably possible” with “limited resources,” assistant attorney general Richard Kuhl told Lawson. “We’re not ignoring or avoiding the court’s order, but we’re not moving as fast as they’d [plaintiffs] like.”

Kuhl also told Lawson he should dismiss the injunction because it’s no longer necessary. He says the latest rounds of water testing show that Flint, which currently gets water from the Great Lakes Water Authority, meets federal standards for lead in water.

“There are thousands of water supplies around the country with higher lead levels” than Flint currently has, Kuhl said. He says the state is still warning Flint residents not to drink unfiltered tap water “out of an abundance of caution.”

“That’s a political position, not a compliance decision,” Kuhl said.

Lawson didn’t immediately rule on the matter. But he declared himself “unimpressed” with the state’s efforts to comply with his order.

“I’m left with the impression the defense is slow-walking compliance” Lawson said, adding that he expected the state to produce a “more robust” compliance plan by next week.

Plaintiffs asked Lawson to order immediate compliance with his injunction.

Allen Overton is with Concerned Pastors for Social Action, the group behind the lawsuit. He’s skeptical that the state is doing as much as it claims, and wants to see more proof they’ve at least tried to comply.

“I’ve talked to the state about it and say hey, if you guys are not going to do it, there should be some documentation,” Overton said.  “And they don’t have any.”

Overton argues that even if Flint’s water is improving and meets legal standards, the extraordinary measures Judge Lawson ordered are still necessary. He says Flint pipes were so badly damaged by 18 months of corrosive Flint River water that contamination could spike again with warmer weather.

“We know in the city of Flint that in the summertime, that the water is going to have some more problems. We’re sure of that,” Overton said.

The state says the law only requires water systems to use “optimized corrosion control” to prevent lead leaching, and that’s now true in Flint.

But Dimple Chaudhary, an attorney with the Natural Resources Defense Council representing the plaintiffs, says the Safe Drinking Water Act sets another standard.

“Things have improved, and that’s encouraging,” Chaudhary said. “But there has been no showing that the lead levels in Flint’s water have been minimized. And that’s simply what the law requires.”