The Flint Settlement

The legal challenges in the water crisis in Flint near an end as a federal court reviews a $641.3-million resolution that could be the largest such disposition in Michigan.
Flint River
Photography by Brittany Greeson

Six years after the City of Flint made a disastrous switch from buying safe, treated water from Detroit to pumping its own polluted river water into homes and businesses, the tragedy of a civic poisoning that played out on the national stage is finally winding down.

In August, Michigan agreed to pay $600 million to victims of the contaminated water crisis that exposed shoddy governance by local officials and the administration of former Gov. Rick Snyder, one of the named defendants in the case.

By the time the agreement was submitted to U.S. Eastern District Court Judge Judith E. Levy for approval in November, the payout had grown to $641.3 million as the City of Flint, McLaren Regional Medical Center, and Rowe Professional Services Co., a Flint city contractor, were joined in the settlement.

McLaren will pay $20 million for its link to an outbreak of Legionnaires’ disease that sickened 91 persons, killing 12 of them. In the 18 months the city used Flint River water, between April 2014 and October 2015, records show that 51 of those cases occurred at McLaren Flint hospital.

The financially strapped city’s $20 million share will be paid by its insurers. Meanwhile, Rowe, which advised the city during the water switch, will chip in more than $1.2 million.

If approved, the settlement is likely the largest in state government history, affecting tens of thousands of people and resolving more than 100 cases in state, federal, and appellate courts, says Michigan Attorney General Dana Nessel.

Flint Mayor Sheldon Neeley says the settlement is long overdue. “While no amount of money will heal the wounds inflicted on this community, we’re glad to see more entities step up and take responsibility,” he says. “The residents of the city of Flint deserve justice and they deserve a resolution to those lawsuits.”

The Michigan Department of Environmental Quality, the Department of Health and Human Services, and two emergency managers appointed by Gov. Snyder to run the city during the water crisis are also among the defendants.

The announcement of the historic settlement, which consolidated scores of lawsuits, came as a program to replace thousands of corroded or lead water lines connected to homes in Flint was coming to a close. The so-called “Get the Lead Out” program stemmed from another legal settlement where the state, in 2017, agreed to pay $97 million for remediation.

To complete the process, for the past four years work crews have gone door-to-door in Flint’s neighborhoods and inspected, dug up, and replaced lead and corroded lines that brought water into homes from a main distribution pipe running under most streets.

As of the first week of October, the city reported that lines into 26,232 homes had been excavated and 9,769 lead or galvanized steel pipes were replaced. Another 16,463 were safe lines that didn’t need replacement.

Neeley says restoring the community’s trust and confidence will take time and effort. To that end, the city has been aggressively making several other infrastructure repairs. “I’m proud to say that we’re now making real progress on other water crisis recovery projects,” he says. “We’ve started construction to create a secondary water source, (to) increase capacity of water reservoirs, and upgrade the chemical feed building.”

people with water bottles
Public Relief: Soon after the water crisis unfolded, community leaders and volunteers set up multiple bottled water and filter distribution centers across the city. At the Flint Fire Department, residents wait in line to pick up water filters on Jan. 15, 2016.

The 71-page settlement before Judge Levy establishes a court-monitored victim’s compensation fund, with 80 percent of the money going to residents who were minors at the time of the water switch.

Those who were 6 years old at the time and afflicted with possibly a life-long injury caused by lead in the water will receive the bulk of the money; 2 percent will go to Genesee County for special education services for those children. The rest goes to adult Flint residents, property owners, and businesses for personal injuries and damages to property and companies.

Before any money is paid out, however, Levy must find that the proposed settlement is fair, adequate, and reasonable. Flint residents will have 60 days to register to participate in the settlement program. After that they will have 120 days to file the documents necessary to support their claims. This process will be managed by a court-appointed claims administrator.

As many as 12,000 children may have been permanently harmed by lead poisoning, court records show. The final settlement came out of scores of lawsuits that were first combined into 10 class-action suits representing thousands of Flint residents. In 2017, those class actions were folded into one massive case.

At that time, Levy appointed Theodore J. Leopold of Cohen Millstein, a law firm based in Washington, D.C., and Michael L. Pitt, founding and managing partner of Pitt, McGehee, Palmer, Bonanni, and Rivers in Royal Oak, to be lead co-counsel for the combined effort. Retired Sen. Carl Levin (D-Detroit) mediated the settlement.

What’s more, dozens of lawyers and law firms involved in the combined cases will share in the settlement, based on Levy’s direction.

“Without this settlement, which makes affected children a top priority, Flint residents would have been provided little assurance that their claims would be successful in court, and ongoing litigation could have prolonged their hardships for years,” Nessel said in a statement. “Resolving these legal disputes against the State and the other defendants who joined in the settlement is the best possible outcome for Flint’s future.”

But the work isn’t over. Still unsettled are lawsuits against water engineering firms Veolia, of Chicago, and Lockwood, Andrews, and Newman in Houston, consultants for Flint at the time of the switch to the river water.

A third case seeking damages of $722.4 million is also pending against the U.S. Environmental Protection Agency. That 2017 case, filed by Pitt and six other lawyers on behalf of 1,703 Flint residents, accuses the EPA of negligence and violations of the federal Safe Drinking Act.

In October, yet another lawsuit surfaced in federal court in Detroit, filed by a New York law firm on behalf of 2,600 Flint children. The case alleges that investment banks JPMorgan Chase & Co., Wells Fargo, and Stifel, Nicolaus, and Co. underwrote $220 million in bond sales to finance the city’s plan to switch water suppliers. The move, the suit contends, necessitated using the contaminated Flint River water as a stopgap measure until the new water source came online.

The water disaster was the latest blow for the city’s 90,000 predominantly African-American residents, many of whom were impacted either directly or indirectly when General Motors moved out of the city where it was founded more than 100 years ago.

In the 1980s, Flint’s population of 200,000 supported a workforce of 35,000 employees in 18 GM auto factories. Today, with only the Flint Assembly plant in operation, half of the city’s residents live below the poverty line.

A steady decline in revenue, combined with weak local governance, saw the city flirting with bankruptcy for more than two decades. With no relief in sight, Michigan deployed a controversial state law that permitted a governor to appoint emergency managers to run cash-strapped cities without interference from elected officials.

Without this settlement, which makes affected children a top priority, Flint residents would have been provided little assurance that their claims would be successful in court…  — Dana Nessel

In 2013, Flint and Genesee County officials, along with then Emergency Manager Edward Kurtz, approved a cost-cutting plan to end a 47-year relationship with Detroit’s water department and join the newly formed Karegnondi Water Authority, which proposed building a 70-mile-long pipeline from Lake Huron to bring lake water to Genesee County.

The pipeline would save Flint $100 million to $300 million over 30 years, officials said at the time. The plan also called for refitting the city’s water plant to treat the heavily polluted Flint River water for use as a stopgap community water source until the new pipeline was operational in 2016.

Faced with losing Flint, its largest customer, Detroit raised the cost of an interim deal, causing Flint officials to balk. Instead of having a year to prepare and retrofit the Flint water treatment plant, the pressure was on to get it online by April 2014.

Chris Kolb, former president of the Michigan Environmental Council and state budget director, was co-chair of a commission appointed by Gov. Snyder to investigate what went wrong in Flint. He says the Flint Water Department and the MDEQ were understaffed and underfunded as they scrambled to get the treatment plant into operation.

“They rushed to do it,” Kolb says. “They moved too quickly. They just put the pedal to the floor and tried to do it with an inexperienced staff.”

They also made the most egregious mistake of the crisis — they failed to apply crucial corrosion control chemicals to coat the interior of pipes, to prevent lead from seeping into the water supply. “It was a catastrophic failure by government,” Kolb says.

Flint and state officials had due warning that using the Flint River for community water was a bad idea. In a published study of the Flint water crisis, Susan J. Masten, an engineering professor at Michigan State University, cited two red flag warnings that officials ignored. In a March 14, 2014, email to associates in Gov. Snyder’s office, Brian Larkin, then associate director of the governor’s Office of Urban and Metropolitan Initiatives, warned: “The expedited time frame (to switch to the river water) is less than ideal and could lead to some big potential disasters down the road.”

Mike Glasgow, a laboratory and water quality supervisor at the Flint plant was even blunter in his April 25, 2014, email to the MDEQ: “I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction,” he said. 

That same day, Flint officials, including then Emergency Manager Darnell Earley, greenlighted using water from the Flint River. Within days residents began complaining that discolored, brownish water was flowing out of their taps.

Elnora Carthan, whose name appears as a plaintiff on one of the larger lawsuits, said she noticed the difference in the water right away. “It had an odd smell, a really odd smell,” she said in court papers. “You knew something was wrong. You turn the shower on, and you could smell it. You take a shower, five or 10 minutes later, you begin to itch. You knew there was something wrong.”

Complaints about the look, smell, and taste of the water poured into city hall during the summer. In fact, residents frequently showed up at city hall and came to public forums toting jugs of their discolored tap water.

Residents were further alarmed by several advisories to boil their water because of fecal coliform bacterium and other bacteria in the water that were possible precursors to E. coli or other disease-causing organisms. At the same time, the City repeatedly flushed the system and kept adding more and more chlorine, while maintaining the water was safe to drink.

The MDEQ, now known as the Department of Environment, Great Lakes and Energy, blamed leaking valves and aging cast iron parts susceptible to buildup of bacteria as probable causes of the problems. Their answer was more of the same — flushing pipes and adding more chlorine.

Dericco Cooper
Political Pressure: Over the 18 months that the City tapped water from the Flint River for municipal delivery, citizens complained at city council and other public meetings. Dericco Cooper speaks at a meeting at the Flint Youth Theater on March 22, 2015.

As if the water problems weren’t enough, in October 2014 GM rocked the city with a bombshell announcement. The automaker said it would stop using city water and buy water from an adjacent township because the high level of chlorine in the Flint River water was corroding its engine parts.

LeeAnne Walters, a stay-at-home mom with four children, was already convinced the dark rust-colored water coming out of her taps was contaminated. Earlier in the summer her twin 3-year-old sons, Gavin and Garrett, developed scaly patches of skin that peeled after bathing, while Walters and her teenage daughter were losing clumps of hair.

It got worse. Walters’ eyelashes fell out, and her 14-year-old son suffered repeated bouts of abdominal pains. He would later be diagnosed with lead poisoning.

On Jan. 2, 2015, the city warned that byproducts of disinfectants in the water may cause future health problems including cancer, and suggested that the elderly and parents of young children should consult their doctors.

In Detroit, water department authorities offered to waive a $4 million hookup fee to restore their service to Flint, an offer that Emergency Manager Jerry Ambrose rejected.

Officials in Lansing and Flint continued to say the water was safe to drink. The MDEQ noted there were “hiccups” in the switching of the water supply, including a buildup of trihalomethanes (TTHM), a cancer-causing byproduct of chlorine and organic matter. MDEQ officials said in a background paper sent to Gov. Snyder that  higher levels of TTHM were a risk for disease only after years of  drinking the water, and it wasn’t an immediate health emergency. Gov. Snyder responded with a $2 million grant to fix pipes and sewers.

Taking matters into her own hands, Walters, a former medical assistant whose husband, Dennis, is a U.S. Navy serviceman stationed in the area, decided to do an investigation.

First she took a sample of water from her taps and had the city test it. The result showed elevated levels of lead. Walters then obtained a list of chemicals the Flint treatment plant was using and took that list, along with another sample of her tap water, to Miguel Del Torala, a drinking water expert at the EPA.

Looking at the list of chemicals, Del Torala was immediately alarmed by the absence of corrosion inhibitors needed to treat river water. He also noted that Walters’ tap water sample showed levels of lead seven times greater than the EPA safety limits.

Officials at the MDEQ dismissed those findings as a one-off problem while insisting there was no evidence of citywide lead contamination. 

On March 23, 2015, the Flint City Council voted 7-1 to stop using river water and restore the service from Detroit. Citing costs, Ambrose, the emergency manager, overruled the council, saying, “water from Detroit is no safer than water from Flint.”

With the refusal of local and state officials to take action, Del Torala put Walters in touch with Marc Edwards, a civil engineering and environment professor at Virginia Tech University. Edwards had a growing reputation as a maverick scientist exposing municipal water malfeasance, including a decade-long lead contamination controversy involving the water supply in Washington, D.C. At Edwards’ direction, Walters recruited neighbors and worked more than 100 hours per week for three straight weeks gathering test kits of 800 water samples from every ZIP code in the city.

At Virginia Tech in Blacksburg, Edwards and his team tested the samples, which showed lead levels as high as 13,200 parts per billion in Walters’ home — more than twice the EPA level for hazardous waste.

pipe replacement
End In Sight: Since 2016, nearly 10,000 lead or galvanized pipes have been replaced in Flint. Some 2,000 pipes remain to be inspected.

In a memo, “High Lead Levels in Flint,” the EPA pointed out the water treatment plant’s failure to use corrosion control to knock out the lead in drinking water. The memo cited the Virginia Tech findings of the lead levels in Walters’ home and similar levels in three other homes.

Walters gave a copy of that memo to the ACLU, which produced a video about the lead in the water in her home. In response, Mayor Dayne Walling went on local television and drank a cup of city water to assure his citizens that it was safe, while the MDEQ continued to insist the problem was localized, saying their initial testing of 170 homes showed no widespread problem.

The interagency squabbling drew the attention of Dennis Muchmore, chief of staff to Gov. Snyder. In an email to the Department of Community Health on July 22, 2015, Muchmore wrote: “I’m frustrated by the water issue in Flint. I really don’t think people are getting the benefit of the doubt. Now they are concerned, and rightfully so, about the lead level studies they are receiving from MDEQ samples. Can you take a moment out of your impossible schedule to personally look at this?”

In September, Edwards and Walters declared that Flint’s water was not safe for drinking or cooking, as a Virginia Tech study showed 40 percent of Flint homes had high levels of lead and the city’s water supply was 19 times more corrosive than water from Detroit. The river water’s corrosion of old pipes was causing lead to leach into the water.

In follow-up testing, the Virginia Tech team would show lead levels in Elnora Carthan’s home were 1,050 parts per billion — 70 times as high as the EPA limit for safe usage.

On Sept. 24, 2015, Dr. Mona Hanna-Attisha, a pediatrician at Flint’s Hurley Medical Center, along with her research team, issued an explosive report on the damage the river water switch caused in children — elevated levels of lead in their blood had doubled since the city switched the water supply, and in some neighborhoods the lead levels in children tripled, Hanna-Attisha reported.

Once those findings were confirmed by the Michigan Department of Health and Human Services, the state began testing drinking water in schools and distributing free water filters.

On Oct. 8, 2015, as the MDEQ reported dangerous levels of lead in three Flint schools, Gov. Snyder announced that Flint would cease using water from the river. A week later, Flint switched back to Detroit water.

Looking back at the debacle, Flint’s miscalculation with its water supply and the state’s reaction to the crisis were costly to taxpayers. Gov. Snyder and the Legislature approved a payment of $232 million to reconnect Flint to the Detroit water system, to pay for lead testing and treatment, credits for water bills, filters for water taps, and citywide bottled water distribution. In addition, the EPA pledged $100 million to modernize the drinking water infrastructure.

Gov. Snyder blamed career bureaucrats at the MDEQ for the water crisis. His mistake was not asking enough questions, he said

Jack Sikkema, a former Republican state Senate majority leader and Kolb’s co-chair on the Flint advisory task force, says the crisis in Flint was a clear case of environmental injustice. “It isn’t about racist intent or deliberately violating people’s civil rights,” Sikkema concluded. “It’s really about equal treatment and citizen voices having meaningful impact on decision-making in government. They lacked both in Flint.”

The task force recommended a “cultural change” at the MDEQ, improved communication and data-gathering with the governor’s office, and a thorough review of the emergency manager law.

For their activist roles in exposing the lead crisis, Hanna-Attisha and Walters received wide recognition. “I’m just one of many who have fought for clean water over the years,” Walters says. “For me, (the awards we received are) a symbol to my kids to fight for what’s right. Even the smallest action can make a difference. One person can make a difference, but a community is unstoppable.”

Legal Drip

Nearly five years after millions of dollars were spent on investigations and the first of 15 persons was charged with crimes ranging from misconduct to manslaughter, no one has gone to trial and no one has served a day in jail in connection with the Flint water crisis that sickened thousands and resulted in 12 deaths from Legionnaires’ disease.

Last April, Todd Flood, the special prosecutor assigned by former Attorney General Bill Schuette to lead the prosecution, was fired by Schuette’s successor, Dana Nessel.

Two months later, in June, the attorney general’s office dismissed charges against eight officials, including the highest-ranking officials charged in the case — Nick Lyon, the former director of the Michigan Department of Health and Human Services, and Dr. Eden Wells, the state’s top medical executive.

Flood’s handling of the case began fizzling out when he offered deals to seven defendants, reducing felony charges to misdemeanors and allowing them to enter pleas of no contest with the promise that their records would be wiped clean in exchange for testifying against higher-ranking officials.

Whether or not their testimony will be needed remains to be seen. Preliminary examinations for Lyons and Wells had been completed, and both were bound over by lower court judges for trial in circuit court when their cases were dismissed.

Charles “Chip” Chamberlain, a Grand Rapids lawyer representing Lyon, says the dismissal came the day before a judge was to rule on his argument that the case should be thrown out for lack of evidence. Since then, he’s had no communication with prosecutors.

“We maintain there is no basis to go forward. They did the right thing by dumping it at the time, and we remain hopeful they will see the light and not go forward,” Chamberlain says.

Michigan Solicitor General Fadwa Hammoud, assisted by Wayne County Prosecutor Kym Worthy, is now overseeing a new team of investigators. The dismissals do not preclude recharging defendants, they said in a statement. “The investigation is absolutely open and active,” says Courtney Covington, a spokeswoman for Nessel’s office.

Hammoud says Flood’s investigation failed to pursue all available evidence, and wrongly allowed private law firms representing former Gov. Rick Snyder and other defendants to help decide what information would be turned over to law enforcement.

Another reason for dismissing the pending cases was the discovery of potentially more unexplored evidence in millions of documents related to the Flint water crisis that were stored in 23 boxes in the basement of a state-owned building. Those documents include a list of state employees titled “Phones/Wiped,” Hammoud says.

Molly Kettler, an assistant Wayne County prosecutor assigned to the Flint team, was critical of the plea deals made by Flood. Two were taken in court the day after Christmas in 2018 without notifying the public or victims — a situation Kettler says she had never encountered in 25 years as a prosecutor.         

Kettler also was critical of Flood offering plea deals without first evaluating what information each witness could offer, and what a commensurate plea would be in each case.

For example, Liane Shekter-Smith, the former chief of the state’s water quality office, was charged with felony misconduct in office and neglect of duty. Flood’s team said they intended to charge her with involuntary manslaughter.

Instead, she pled no contest to disturbing a lawful meeting, a 90-day misdemeanor, in exchange for future testimony. Shekter-Smith was fired by Gov. Snyder and is the only official to lose their job over the Flint water crisis.