Boler v. Earley

865 F.3d 391

Beatrice BOLER; Edwin Anderson; Allina Anderson; Epco Sales, LLC, Plaintiffs-Appellants,

v.Darnell EARLEY; Gerald Ambrose; Dayne Walling ; City of Flint; State of Michigan; Michigan Department of Environmental Quality; Michigan Department of Health and Human Services; Richard Dale Snyder, Defendants-Appellees.

Melissa Mays; Michael Mays ; Jacqueline Pemberton; Keith John Pemberton; Elnora Carthan; Rhonda Kelso, Plaintiffs-Appellants,

v.Rick Snyder ; State of Michigan; Daniel Wyant; Liane Shekter Smith; Adam Rosenthal; Stephen Busch; Patrick Cook; Michael Prysby; Bradley Wurfel; Darnell Earley; Gerald Ambrose; Dayne Walling ; Howard Croft ; Michael Glasgow; Daugherty Johnson; City of Flint; Nick Lyon; Andy Dillon; Edward Kurtz; Jeff Wright, Defendants-Appellees.

Nos. 16-1684/17-1144

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2017

Decided and Filed: July 28, 2017

Rehearing En Banc Denied September 21, 2017

ARGUED: 16-1684: Nicholas A. Szokoly, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. Margaret Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State Appellees. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. ON BRIEF: 16-1684: Nicholas A. Szokoly, Jason G. Downs, Jessica H. Meeder, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, for Flint Appellees. Margaret Bettenhausen, Richard S. Kuhl, Nathan A Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Eugene Driker, Morley Witus, Todd R. Mendel, BARRIS, SOTT, DENN & DRIKER, PLLC, Detroit, Michigan, for State Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, Paul F. Novak, Gregory Stamatopolous, Diana Gjonaj, WEITZ & LUXENBERG, PC, Detroit, Michigan, William H. Goodman, Julie H. Hurwitz, GOODMAN & HURWITZ, PC, Detroit, Michigan, Deborah A. LaBelle, LAW OFFICE OF DEBORAH A. LABELLE, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, Richard S. Kuhl, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Todd R. Perkins, Nikkiya Branch, THE PERKINS LAW GROUP PLLC, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, EDWARD A. ZEINEH, DAVID W. MEYERS, LAW OFFICE OF EDWARD A. ZEINEH, Lansing, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, BRETT T. MEYER, O'NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Flint Appellees. Michael J. Pattwell, Jay M. Berger, Christopher B. Clare, CLARK HILL PLC, Detroit, Michigan, Thaddeus E. Morgan, FRASER TREBILCOCK, Lansing, Michigan, Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Phillip A. Grashoff, Jr., Dennis K. Egan, Krista A. Jackson, KOTZ SANGSTER WYSOCKI, Bloomfield Hills, Michigan, for Appellees Busch, Cook, Prysby, Rosenthal, Smith, Wurfel, and Wyant. Gregory M. Meihn, FOLEY & MANSFIELD, P.L.L.P., Ferndale, Michigan, Joseph F. Galvin, GENESEE COUNTY DRAIN COMMISSION, Flint, Michigan, for Appellee Wright. Sarah C. Tallman, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, Illinois, Dimple Chaudhary, NATURAL RESOURCES DEFENSE COUNCIL, Washington, D.C., Michael J. Steinberg, Bonsitu A. Kitaba, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amicus Curiae.

Before: COLE, Chief Judge; STRANCH and DONALD, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

These two cases arise from the water contamination crisis in Flint, Michigan. Plaintiffs, residents of Flint affected by the contaminated city water, bring suit against various state and local officials and entities, alleging violation of their constitutional rights, pursuant to 42 U.S.C. § 1983, along with other claims. In Boler , the district court determined that the § 1983 claims were preempted by the Safe Drinking Water Act (SDWA) and dismissed the case for lack of subject matter jurisdiction. Relying on its preemption analysis in Boler , the court dismissed the Mays case. The cases have been consolidated on appeal. For the reasons explained below, we REVERSE the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

A. Factual Background

In March 2011, the Michigan state Legislature passed the Local Government and School District Fiscal Accountability Act ("Act 4"), which authorized the governor to appoint an emergency manager for certain local governments. Act 4 replaced an earlier Michigan law, the Local Government Fiscal Responsibility Act ("Act 72"), which had been in effect since 1990. Act 72 gave the State power to appoint an emergency financial manager to municipalities facing financial crises. Act 4 expanded the scope of the powers granted to these emergency financial managers and changed their title to simply "emergency managers." New emergency managers were subsequently appointed in several areas; in August 2012, Governor Rick Snyder appointed Edward Kurtz in Flint.

On November 5, 2012, Michigan voters rejected Act 4 by referendum. This revived Act 72. See Mich. Op. Att'y Gen. No. 7267, 2012 WL 3544658, at *6 (Aug. 6, 2012). In December, the Michigan Legislature responded by enacting the Local Financial Stability and Choice Act ("Act 436"), effective March 28, 2013. Under Michigan law, a public act with an appropriations provision is not subject to referendum. See In re City of Detroit , 504 B.R. 191, 252 (Bankr. E.D. Mich. 2013) (citing Mich. United Conservation Clubs v. Sec'y of State , 464 Mich. 359, 367, 630 N.W.2d 297 (2001) ). Unlike Act 4, Act 436 added appropriations provisions that prevented voters from subjecting it to a referendum. Id. at 251. Act 436, like Act 4, authorized the State to appoint emergency managers with authority to exercise the power of local governments. See Phillips v. Snyder , 836 F.3d 707, 711 (6th Cir. 2016).

Following the passage of Act 436, Kurtz resumed his status as named Emergency Manager for the City of Flint, and remained in that post until July 2013. In November 2013, Governor Snyder appointed Darnell Earley as Emergency Manager for the City of Flint. In January 2015, Earley was replaced by Gerald Ambrose.

Between 1967 and 2014, the City of Flint sourced its water from Lake Huron via the Detroit Water and Sewerage Department (DWSD). On March 29, 2013, one day after Act 436 went into effect, the City of Flint decided to join a water supplier, the Karegnondi Water Authority (KWA), that was to be established. Sourcing water for Flint had been under review. In 2011, Flint had commissioned a study ("2011 Report" or "Report") to evaluate the cost of treating water from the Flint River for municipal use as an alternative to either purchasing from the future KWA or continuing its existing contract with DWSD. The Report determined that water from the Flint River would need to be treated to meet current water safety regulations. It also concluded that the cost of treating water from the Flint River to provide safe municipal use would be greater than the proposed KWA contract, but less than continuing the contract with DWSD. The officials thus decided to go with the cheapest long-term option—the KWA.

Shortly after the decision to switch to the KWA was made, DWSD notified Flint that its current contract would terminate in approximately one year, in April 2014. Because the KWA would take several years to construct, officials were tasked with choosing an interim water source: the Flint River or DWSD. Officials chose the Flint River. Genesee County, which includes Flint but is, according to the Defendants, "[j]urisdictionally separate and distinct from the City of Flint," had also decided to switch its future water supply to the KWA. Unlike the City of Flint, Genesee County officials opted to continue to purchase DWSD water during the KWA's construction. The Defendants state that this was because Genesee County, unlike Flint, does not have its own water treatment plant.

In April 2014, Flint's emergency manager changed the source of the city's water from DWSD to the Flint River. The plaintiffs assert that at this time, the City knew "that the Flint River could not be a source of safe municipal water unless it underwent significant treatment, including the addition of anti-corrosive agents and treatment for microbial contaminants," as explained by the 2011 Report. The Report itself states that its comparison to other alternatives "assumed that the Flint [water treatment plant] w[ould] treat water from the river to provide a finished water of similar quality to other alternatives being considered." There is no evidence that the City upgraded the treatment plants or provided for additional safety measures prior to switching water supply sources on April 25, 2014. The Defendants contend that they operated in accordance with the SDWA's Lead and Copper Rule, which requires a two-step process that begins with "initial monitoring" over two separate six-month periods to determine if treatment is required. The first six-month period did not begin until June 2014.

Following the switch to the Flint River, residents immediately began to complain that the drinking water "smelled rotten, looked foul, and tasted terrible." Larger problems with the water supply soon became apparent. Testing conducted...