While the headlines from the Flint water crisis have all but subsided, two consolidated putative class actions arising from the crisis gained new life over the summer as a result of the Sixth Circuit’s ruling in Boler v. Earley. The Boler decision examined whether two groups of plaintiffs’ constitutional claims were preempted by the federal Safe Drinking Water Act (SDWA).  On behalf of Flint residents and water users, Plaintiffs alleged race and wealth- based discrimination, state-created danger, racially-motivated conspiracy, due process violations, and various contract, tort, and equitable claims arising out of the crisis.  Overruling the district court, the Sixth Circuit concluded that preemption did not apply and allowed the Section 1983 and 1985 claims to go forward against various Michigan government entities.

The Sixth Circuit found that the SDWA did not meet the three elements necessary to find preemption of claims premised on constitutional violations. First, there was no clear legislative intent by Congress to preclude Section 1983 claims under the act. Second, the remedial scheme under the SDWA was not so broad to fully redress the harms allegedly suffered by the plaintiffs. Lastly, in comparing the rights protected by Sections 1983 and 1985 against those by the SDWA, the court found that a violation of the former would not necessarily be synonymous with a violation of the latter.

The court did not, of course, reach the merits of plaintiffs’, which were remanded back to the district court for further proceedings.  The litigation is starting up again this month in the Eastern District of Michigan following the recent denial of the defendants’ en banc petition. Though it allowed most plaintiffs’ claims to go forward, the Sixth Circuit dismissed some of the claims against the State of Michigan, Governor Snyder, and two Michigan government departments. The Eleventh Amendment, according to the court, provided these defendants with sovereign immunity, which protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court.

This is not the Sixth Circuit’s first encounter with the fallout from the Flint water crisis.  As we previously covered, in ­­­­­­Mason v. Lockwood, Andrews & Neuman, the appellate court remanded a putative class action of Flint residents and property owners back to state court for lack of federal jurisdiction.  The plaintiffs sought Supreme Court review, which was denied in June.  We will continue to track the ongoing litigation produced by the Flint water controversy.