/>iThe existence of lead pipes in municipal water systems and service lines connecting residential and commercial properties to water mains throughout the United States continues to generate litigation and regulatory action. The U.S. government reported in 2023 that more than 9.2 million American households connect to water through lead pipes and lead service lines.[1] The water crisis in Flint, Michigan, that arose a decade ago and gained national prominence involved water allegedly contaminated both by a change in water source and the presence of old lead service lines. That case, involving over 25,000 individual lawsuits as well as class actions, is approaching an important milestone as a partial settlement nears conclusion.
Background
The Flint water crisis began in April 2014 when the City of Flint switched its source of municipal water to the Flint River. For decades previously, Flint had received water from Lake Huron that was pre-treated by the Detroit Water and Sewerage Department.[2] Following the switch, residents soon reported that “there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes.”[3] Tests showed the presence of bacterial contamination. In response, the City treated the water with additional chlorine, which was alleged to have exacerbated the corrosion in the old water lines and allegedly the “corrosion contaminated the water with hazardous levels of lead.”[4] Subsequently, it was alleged that lead monitoring showed results exceeding the Lead and Copper Rule’s action levels for lead, and that a published study showed a spike in the percentage of children in Flint with elevated blood lead levels.[5]
Litigation
Litigation involving the Flint water crisis (the Flint Water Cases) began in 2015, with numerous cases filed in both federal and state court including both class actions and individual cases involving thousands of plaintiffs. The complex procedural history included scores of motions to dismiss, extensive discovery, hundreds of opinions and orders, and various appeals both to the United States Court of Appeals for the Sixth Circuit and to the United States Supreme Court.[6] Plaintiffs—who include children, adults, property owners, and business owners—allege that they were exposed to lead, legionella, and other contaminants from the municipal water supply.[7] The defendants include City and State government officials, hospitals, and private engineering companies.
Settlements
On November 10, 2021, the United States District Court granted final approval of a partial settlement with many of the defendants, including the State of Michigan and individual state officials; the City of Flint, Flint’s City Emergency Managers, and several City employees; and certain other defendants.[8] The unique comprehensive settlement involves a “hybrid structure”—addressing individually represented persons and minors, unrepresented claimants, and also a class resolution component for unrepresented adults.[9] Appeals challenging the settlement were resolved on March 17, 2023, when the United States Court of Appeals for the Sixth Circuit affirmed the district court’s decisions.[10]
The settlement establishes an administrative compensation program that provides settlement opportunities to 30 categories of individuals and entities for a wide range of injuries and damages if claimants meet the eligibility criteria. Eligible claimants include:
- every person demonstrating exposure to Flint water while a minor child—with award amounts varying based largely on lead levels demonstrated by blood or bone testing or by exposure at residences with documented lead or galvanized service lines or high lead levels as recorded in water testing;
- exposed adults with qualifying lead levels based on blood or bone lead testing or qualifying injuries;
- qualifying residential property owners, renters, or others responsible for paying Flint water bills; and
- qualifying business owners impacted during the relevant period.[11]
The eligibility requirements, compensation process, timeline, and award amounts are based on “objective factors such as age, exposure to the water, lead test results, specific identified injuries, property ownership or lease, payment of water bills, and commercial losses”—and compensation is the same for similarly situated individuals and entities regardless of whether they are represented or not or are a member of the class.[12]
The settlement is structured such that the majority of funds (79.5 percent) goes to those who were minors at the time of their exposure to Flint water—with those minors with test results showing high lead levels receiving the highest relative awards. Under the settlement’s Compensation Grid, a qualifying blood lead test must have been taken during a specified time period during the water crisis, or a qualifying bone lead test using an X-Ray fluorescence (XRF) device optimized to measure bone lead in vivo in humans may have been taken during the period up to 90 days after the date of the Preliminary Approval Order.
In 2023 and 2024, additional settlements were reached with other defendants, adding additional funds available for distribution to qualifying claimants.
Status of the Settlement Process
The settlement administrator received approximately 46,000 claim packages (some claimants submitted more than one claim package and there are duplicates so the number of actual claimants is less). Notices to claimants advising them of the settlement category(ies) they qualify for, and/or of deficiencies found in their claims, have been distributed throughout 2023 and 2024, and the claims administration process is close to completion. The value of an approved claim is based on the number of claimants ultimately approved for each category, so final determinations of award amounts and issuance of payments will be made after the completion of the claims process.
Conclusion
The issues presented by the Flint water crisis and the resulting litigation and settlement may resonate in the coming years. Gallup reports that pollution of drinking water is Americans’ top environmental concern,[13] and lead exposure remains a significant issue in many municipalities across the country. According to the U.S. Centers for Disease Control and Prevention (“CDC”), lead “can be harmful to human health even at low exposure levels” and “[n]o safe blood level has been identified for young children.”[14] The Environmental Protection Agency (“EPA”) reports that lead pipes, faucets, and fixtures are the most common sources of lead in drinking water and that lead pipes that connect homes to the water mains (service lines), which are more likely found in older cities and in homes built before 1986, “are typically the most significant source of lead in water.”[15]
The EPA recently issued a final rule titled National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI), which would require drinking water systems to replace lead and certain galvanized service lines, remove the lead trigger level, and lower the lead action level from 0.015 mg/L to 0.010 mg/L.[16] The rule has been challenged in court.[17]
[1] whitehouse.gov/briefing-room/statements-releases/2023/11/30/fact-sheet-biden-harris-administration-announces-new-action-to-protect-communities-from-lead-exposure; epa.gov/ground-water-and-drinking-water/lead-service-lines
[2] In re Flint Water Cases, 960 F.3d 303, 311-12 (6th Cir. 2020).
[3] Id. at 310.
[4] Id.
[5] Id. at 316, 319.
[6] In re Flint Water Cases, 499 F. Supp. 3d 399, 411-412 (E.D. Mich 2021).
[7] Id. at 408.
[8] In re Flint Water Cases, 571 F. Supp. 3d 746 (E.D. Mich. 2021).
[9] In re Flint Water Cases, 499 F. Supp. 3d 399, 409 (E.D. Mich. 2021).
[10] In re Flint Water Cases, 63 F.3d 486 (6th Cir. 2023).
[11] In re Flint Water Cases, 499 F. Supp. 3d 399, 408; Flint Water Cases (FWC) Qualified Settlement Fund Categories, Monetary Awards, and Required Proofs Grid (11/11/20) (“Compensation Schedule”), In re Flint Water Cases, 16-cv-10444, ECF No. 1319-2.
[12] In re Flint Water Cases, 499 F. Supp. 3d 399, 408.
[13] news.gallup.com/poll/643850/seven-key-gallup-findings-environment-earth-day.aspx.
[14] www.cdc.gov/lead-prevention/prevention/drinking-water.html.
[16] Id.
[17] See American Water Works Ass’n v. United States Environmental Protection Agency, et al., No. 24-1376, (D.C. Cir. Dec. 13, 2024).
