Op-Ed: The courts will fail Flint, too

Michigan stopped supplying water to residents from the notoriously contaminated Flint River five months ago. In that time, we all have learned about the many ways the political process failed the people of Flint. Elected officials from the executive and legislative branches — through carelessness, incompetence, indifference or spite — completely failed to safeguard the public welfare.

Less well known is that the third branch of government, the judicial branch, is also likely to fail Flint’s residents. The civil justice system is supposed to make victims whole after this kind of calamity. Here, however, various legal doctrines stack up into possibly insurmountable barriers to any meaningful recovery.

The kind of lawsuit that’s typically filed after an injury like this is called a tort claim — and, on the face of it, the lead-contamination scandal in Flint has all the makings of a blockbuster case. The plaintiffs, who are mostly children, are sympathetic victims. There’s no disagreement that the substance they were exposed to — lead — is toxic. And the injuries at issue are serious: Some individuals will, no doubt, sustain lasting physical and cognitive impairments.

Even so, it’s going to be nearly impossible for plaintiffs to prevail.

The biggest obstacle is 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 tort liability when they are performing a core government function. Embracing this doctrine, the state of Michigan is apt to argue that providing water to residents qualifies, and thus sovereign immunity supplies an impenetrable shield.

It’s possible that lawsuits against specific public officials for gross negligence or against the city of Flint could proceed. But despite the fact that a state emergency manager was calling the shots, traditional tort suits targeting the state of Michigan are very unlikely to get off the ground.

Even if plaintiffs find a way around sovereign immunity, they’ll run headlong into a second obstacle called “specific causation.” To win a tort case, it is not enough to show that leaded water can theoretically cause a particular impairment.

The plaintiff also has to show specific causation — and to do that, she has to show, with a preponderance of the evidence, that this lead exposure caused her particular injury.

That won’t be easy. Lead exposure causes developmental delays and cognitive difficulties — and, for pregnant women, miscarriages and premature births. But those can be caused by lots of other things too. In lead contamination cases, the question always arises: Is this kid’s failure to thrive really due to lead exposure — or might it be the consequence of something else, like unlucky genes, a chaotic home environment, or poor prenatal care? Likewise, if it was lead that caused the child’s impairment, how can we know it came from Flint’s water? After all, kids can be exposed to lead in lots of places, including soil, toys, dust and chipped paint.

It’s not necessarily hopeless. One crack in the sovereign immunity shield is that federal suits are allowed for violations of constitutional rights. Not surprisingly, then, several already-filed lawsuits contend that, by supplying lead-contaminated water, Michigan violated Flint citizens’ 14th Amendment right to substantive due process.

Still, suits seeking damages for constitutional violations tend to be difficult to win. And these cases, which propose a novel legal theory that government officials breached citizens’ right to “bodily integrity,” will face particularly long odds.

Federal suits claiming that Michigan officials violated the U.S. Safe Drinking Water Act stand a better chance. But these tend to seek injunctive relief, by, for instance compelling repairs to the water system, rather than monetary damages.

Finally, criminal investigations are apparently underway. Although the criminal prosecution of culpable officials may promote accountability, it won’t tangibly benefit those who’ve been hurt.

Michigan officials’ egregious actions undeniably injured many children in Flint. What their families need, and deserve, is meaningful financial compensation. As a society, that is how we signal the defendant’s responsibility for causing harm and deter future accidents. More practically, it is how we offset victims’ medical bills and other costs.

But in Flint, this monetary compensation is unlikely to be forthcoming — at least from the courts.

The responsibility to do right by Flint will have to be taken up where the crisis began, in the political branches of government. Failing that, it won’t be at all surprising if many of the children whose lives have been irreparably diminished never recover a penny.

Nora Freeman Engstrom is a professor at Stanford Law School.

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