375 F. Supp. 3d 796
E.D. Mich.2019Background
- Flint switched its water source to the Flint River in April 2014; the river water was corrosive and Flint did not implement corrosion control, producing elevated lead and other contaminants in tap water.
- EPA Region 5 received numerous citizen complaints and conducted investigations in early–mid 2015, identifying high lead levels in sampled homes and service lines.
- EPA Region 5 repeatedly warned Michigan Department of Environmental Quality (MDEQ) and offered technical assistance; MDEQ treated Flint as a "new source" and delayed requiring optimized corrosion control treatment.
- EPA communications to residents and its public posture sometimes reassured that water met standards, while internal Region 5 staff concluded Flint had widespread lead problems and that State/City actions were insufficient.
- EPA issued an emergency order under SDWA §1431 on January 21, 2016, after federal and state emergency declarations; EPA OIG later reported Region 5 had authority and information to act earlier.
- Plaintiffs sued the United States under the FTCA claiming EPA negligence in failing to timely enforce/act and in misinforming residents; the Government moved to dismiss for lack of subject-matter jurisdiction invoking the FTCA discretionary-function and related exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA conduct is barred by FTCA discretionary-function exception | EPA had mandatory duties under SDWA (§1414/§1431) to act and warn; its delay was negligent, not policy-based | EPA's choices (when/how to intervene, consult, issue orders) involved judgment and policy and thus are discretionary | Court: For failures-to-act and failure-to-warn claims, discretionary-function does not bar FTCA claims because decisions were not the kind of policy judgments the exception protects; plaintiffs plausibly alleged objectively unreasonable conduct |
| Whether EPA's affirmative responses to residents are barred by FTCA exceptions (misrepresentation) | EPA's assurances induced reliance; claims arise from operational negligence and reliance, not commercial misstatements | Government invokes §2680(h) misrepresentation exception | Court: Misrepresentation exception inapplicable—allegations are noncommercial operational misstatements and detrimental reliance supports liability |
| Whether plaintiffs have a viable state-law theory to permit FTCA suit (analogous private liability) | Good Samaritan / Restatement §324A applies: EPA undertook services, negligently performed them, and residents relied on EPA assurances | Government argues Michigan law would not impose such private liability in these circumstances | Court: Under Michigan law (Restatement §324A), plaintiffs plausibly show undertaking, reliance, and increased risk; FTCA analog liability pleaded |
| Whether EPA's discretionary actions (once it chose to act) were immune from suit for negligent implementation | EPA decisions about how to respond are discretionary, but implementation must be non-negligent | EPA argues all response conduct is discretionary and protected | Court: Implementation and operational execution are actionable if negligent; plaintiffs may proceed on claims about inadequate/negligent responses to complaints |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (1988) (two-step test for discretionary-function exception)
- United States v. Gaubert, 499 U.S. 315 (1991) (agency choices presumptively grounded in policy; focus on whether actions are susceptible to policy analysis)
- Myers v. United States, 17 F.3d 890 (6th Cir. 1994) (discusses when regulatory/inspection decisions are non-policy safety determinations)
- Lockett v. United States, 938 F.2d 630 (6th Cir. 1991) (EPA discretion to respond to contamination and to warn)
- Indian Towing Co. v. United States, 350 U.S. 61 (1955) (government negligence in operational tasks not shielded by discretionary-function when no policy judgment implicated)
- Guertin v. State of Michigan, 912 F.3d 907 (6th Cir. 2019) (describing severe harms from Flint water switch and noting lack of legitimate government objective for prolonged contamination)