The Flint Water Crisis: Professor Nora Freeman Engstrom Answers Critical Legal Questions

Nora Engstrom

Residents of Flint, Michigan face an uphill battle as they begin to address the implications of a lead contaminated water supply that may have caused serious and long lasting damage to their health. While those exposed to the toxic metal are demanding clean water, they are also starting to raise legal questions. How successful will their legal claims be? In this Q&A, Professor Nora Freeman Engstrom discusses the legal issues involved in this complicated health crisis.

Many Americans have been following the unfolding water crisis in Flint, Michigan with growing alarm and have wondered whether those affected will be able to get some relief in the courts. What’s your perspective?

On the face of it, the lead scandal in Flint, Michigan looks like it has all the makings of a blockbuster mass tort. Every mass tort needs a villain, and here, you have a group of purported public servants, charged with ensuring the welfare and safety of the people of Michigan, who look like they were indifferent, even as poison flowed out of residents’ taps. Every mass tort benefits when there is a sympathetic plaintiff community that didn’t voluntarily accept the risk or contribute to its own harm (by smoking, driving too fast, or eating too much, say). Here, you have tens of thousands of vulnerable victims, many of whom are children, who did no more than take baths and drink glasses of water. Further, an action is more attractive when injuries are serious. That box is checked: Some of Flint’s residents will, no doubt, sustain lasting physical and cognitive impairments. And, finally, some mass torts flounder when there is disagreement concerning whether the alleged toxic substance really is capable of causing physical harm. But again, that is not an issue here. Lead’s danger is conclusively established and has been recognized for decades.

That sounds positive. What’s the catch?

Despite everything I just said, Flint residents will have a very hard time obtaining fair compensation through the tort liability system.

Most obviously, the tort suits will run into a buzz saw, called sovereign immunity. A dusty legal doctrine based on the maxim that “the king can do no wrong,” sovereign immunity shields states and the federal government from liability when they’re performing a core government function. Certainly, I expect the State of Michigan to argue that providing water to residents qualifies as a core government function and therefore the sovereign immunity doctrine shields it from suit. As others have noted, it’s possible that suits against certain officials for gross negligence or against the city of Flint could proceed. But traditional tort suits targeting the State of Michigan are very unlikely to get off the ground.

Then, even if tort plaintiffs can find a way around the sovereign immunity shield, many will run headlong into another obstacle called “specific causation.” To win a traditional tort lawsuit, that is, it’s not enough for a plaintiff to show that leaded water can theoretically cause a particular impairment (the “general causation” question). She has to also show specific causation—and to do that, she has to show, by a preponderance of the evidence, that this lead exposure caused her particular injury.   In so doing, plaintiffs are apt to run into two problems. First, lead does not cause a “signature disease.” By that I mean, the harm that results from lead exposure (things like developmental delays, cognitive difficulties, and stunted growth—and, for pregnant women, miscarriages and premature births) can be caused by lots of other things, too. So, in a lead contamination case, there’s always the question: Is this kid failing to thrive because of her lead exposure? Or, might it be the consequence of something else entirely (maybe unlucky genetics, a chaotic home environment, or her mom’s poor prenatal care)? Second, even if a plaintiff can convince a jury that she is suffering from lead poisoning, the defendant might be able to sow doubt concerning whether the lead that caused her impairment came from the Flint water supply and not another source. This might be hard, because kids can be exposed to lead in lots of places, including the soil, toys, dust, and chipped paint.

Those impediments sound formidable. Does this mean it’s hopeless?

Not necessarily, but devising lawsuits that sidestep the above obstacles will take some fancy footwork. One opening is that sovereign immunity does not bar suits for constitutional injury. Not surprisingly, then, several quite novel lawsuits have been filed arguing that, by supplying leaded water, Michigan violated Flint citizens’ Fourteenth Amendment right to “bodily integrity.”  In addition, lawsuits have been initiated by the ACLU, the National Resources Defense Council, and others, claiming that Michigan officials have run afoul of the federal Safe Drinking Water Act. But those lawsuits tend to seek injunctive and declaratory relief, rather than monetary damages.

If lawsuits aren’t successful, might the government set up a compensation system to provide remedial funds to Flint’s families?

Possibly, but, as my colleague Robert Rabin has explained, the odds are sharply against it. It’s true that, in a few instances in the past, the government has set up compensation funds to address specific injuries. The September 11th Victim Compensation Fund, bankrolled by the U.S. government and administered by Ken Feinberg, is the most prominent example. There are others, too, including the James Zadroga 9/11 Health and Compensation Act, the Black Lung Benefits Act, the Price-Anderson Act, and the Radiation Exposure Compensation Fund. But, these efforts are few and far between—and though I’d be all for the government stepping up to offer compensation to those injured by this calamity—given the gridlock in Washington, I’m not holding my breath.

So, how will the legal system ensure that the people of Flint are fairly compensated for this catastrophe?

As I’ve said before, I’m not at all sure that the civil justice system will meet this challenge. There’s this narrative in the United States that people are always getting easy money from the tort system—that tort suits are painless to initiate and simple to win. The truth is very different. Most folks who are accidentally injured in this country don’t ever even try to seek compensation from the tort system. And those who do try to initiate claims frequently encounter numerous, insurmountable obstacles.

So, I expect there to be all kinds of legal action following the Flint debacle. State and federal criminal investigations have been opened, and at least ten private lawsuits have already been filed. Those actions are likely to be beneficial, even if they don’t directly compensate those hurt. They are likely to encourage accountability, and I expect that the private suits will be instrumental in ensuring that Flint’s water supply is fixed (and maintained) going forward. But I would not be at all surprised if, when the dust settles, there are many children in Flint, Michigan whose lives have been dimmed and diminished by their wholly preventable lead exposure—and who never, actually, recover a penny. A similar story unfolds all the time.

Nora Freeman Engstrom is a Professor of Law at Stanford Law School, where she writes and teaches about complex litigation and the tort system.