Michigan Supreme Court Allows Flint Water Crisis Victim to Assert an Inverse Condemnation Claim

by: Michael Realbuto
21 Oct 2021

From 1964 through late April 2014, the Detroit Water and Sewerage Department (“DWSD”) supplied Flint, Michigan residents with water from Lake Huron. On March 28, 2013, the State Treasurer recommended to the Governor that he authorize the plan to construct an alternative water supply system. Thereafter, on April 16, 2013, the Governor authorized a process to permanently switch the water supply by mid-year 2016 and, in the meantime, to use the Flint River as a temporary water source. The officials chose to use the Flint River despite knowledge of a 2011 study that cautioned against the use of Flint River water as a source of drinking water.

On April 25, 2014, Flint switched its water source to the Flint River and users began receiving its water from their taps. Less than a month later, state officials began to receive complaints from Flint residents about the quality of the water coming out of their taps. The complaints stated that residents were becoming ill after drinking the tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its local plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible links between the outbreak and Flint’s switch to the river water. On February 26, 2015, the United States Environmental Protection Agency (“EPA”) advised that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, it also came to light that lead was found in the drinking water.

During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water, while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. In early October of 2015, however, the Governor finally acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system and, on October 16, 2015, the re-connection took place.

Shortly thereafter, plaintiffs brought suit, alleging in part, a claim for inverse condemnation and seeking economic damages both for the physical harm done to their property as well as the diminution of their property’s value. Plaintiffs alleged that despite defendants knowing that the Flint River water was toxic and corrosive, the state authorized the city to service their properties with water from the Flint River. As a result, plaintiffs alleged that their pipes, service lines, and water heaters were damaged. Plaintiffs also alleged that after the water crisis had become public knowledge, their property’s value substantially declined. Following a motion for summary disposition by defendants, the Michigan trial court and intermediate court of appeals both found that plaintiffs adequately asserted an inverse condemnation claim.

The Supreme Court ultimately affirmed, finding that the pleadings established (1) that defendants’ actions were a substantial cause of the decline in plaintiffs’ property value, (2) that defendants took affirmative actions directed at plaintiffs’ property, and (3) that plaintiffs suffered a unique or special injury different in kind, not simply in degree, from the harm suffered by all persons similarly situated. Although the Court easily found the first two elements to support an inverse condemnation claim, the Court undertook a more critical analysis regarding the third issue relating to the claim that the plaintiffs suffered a special injury “different in kind from the harm suffered by all persons similarly situated.” Specifically, the Court opined that the injuries alleged by plaintiffs were different in kind and degree from harms that municipal water users generally experience, such as service disruptions and externalities associated with construction projects. Therefore, by demonstrating all three elements, the Court concluded that plaintiffs adequately alleged an inverse condemnation claim to survive defendants’ motion for summary disposition.

The Michigan Court’s decision provides insight into the “special injury” element of an inverse condemnation claim. Contrary to defendants’ proposed definition that those “similarly situated” in this case were other Flint water users in the vicinity, the Court took a much broader stance by comparing the injuries alleged by plaintiffs to the issues that are generally experienced by municipal water users. While a service disruption is somewhat typical for a municipal water user, pervasive water contamination and property damage due to official oversight are not. More than five years later, claims flowing from the Flint Water Crisis are still being adjudicated and parsed out by the courts. To read the full decision from the Michigan Supreme Court, click here.