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Flint water lawsuits highlight government immunity

Michigan Gov. Rick Snyder speaks to the media regarding the status of the Flint water crisis as Michigan Press Secretary Dave Murray watches on January 27, 2016 at Flint City Hall in Flint, Michigan. Lawsuits have been filed against the state of Michigan and city of Flint officials in wake of the water crisis.  Brett Carlsen/Getty Images)

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The water crisis in Flint, Michigan is still not resolved. Residents in many places still can’t drink or bathe in the water and have to rely on case after case of bottled water for the most basic daily activities.

Determining who is at fault for all of this also helps determine who can be sued.

Some class action lawsuits have already been filed, and today in Flint, several NGOs filed a suit against the city and the state of Michigan, alleging the government didn’t fulfill its responsibility to provide clean water.

“The city and state officials who are in charge here wrecked the pipes in Flint, and they must fix them,” said Dimple Chaudhary, an attorney with the National Resources Defense Council, one of the groups suing. But the groups aren’t asking for monetary compensation. Instead, they want the city to replace the lead service pipes and provide some medical monitoring.

“It’s not a suit that’s seeking damages,” said Chaudhary,”we’re asking a court to direct the city and state to undertake certain actions to make the drinking water safe. We can avoid some problems with sovereign immunity that other types of claims can run into.”

Michigan Gov. Rick Snyder declined to comment on the suit at a press conference on Wednesday.

That sovereign immunity is one of the reasons it will be hard for Flint residents to get compensated. Many of the local, state and federal agencies people blame for all this have immunity from lawsuits.

“In a situation like this, you’d need to sue the water provider. If the water provider happens to be a governmental entity, then that may limit your options, said John Fiske, a lawyer with Gomez Trial Attorneys who works on cases of water contamination.

“I’m not saying we need to eliminate discretionary immunity because there’s some important value to that to governmental entities all across the country,” he said, but pointed out that that can be quite difficult to sue the government.

Washington, D.C., had its own problems with lead in the water about a decade ago. Lawyer Christopher Cole sued the public-private D.C. water company after finding out his son had lead in his system. But, like the Flint groups, Cole and others settled for fixing the problem rather than asking for cash.

“The arguments they said to us,” Cole recalled, “is ‘Well, if you had damages against us, all we’re going to do is pass that along to the ratepayers … so you’re taking money after your own pocket.'”

Right now, residents of Flint are still stuck paying out of their pockets for water they can’t drink, as well as the medical costs of the lead exposure — now and in the long term.

Cole’s son developed a slight hearing loss, and his dad has always wondered if it was because of the early lead exposure. 

“He won’t drink water out of the tap,” Cole said of his son. “None of my kids will — that’s for sure.”

The family has since moved out of Washington and always filters its tap water.

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