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We Asked a Lawyer if Poisoned Flint Residents Can Win Their Lawsuit Against the Government

Earlier this week, a federal lawsuit was filed against a host of city and state officials implicated in the troubled city's water problems. But will it go anywhere?

On Monday, seven families filed a federal class-action lawsuit against Michigan Governor Rick Snyder and a dozen more city and state officials over the ongoing water crisis in Flint. The plaintiffs say their children have suffered "devastating and irreversible health problems," including learning disabilities and weight loss.

Melissa Lightfoot, one of the parents, said all three of her children were diagnosed with ADD after doctors found an abnormally high level of lead in their blood. She also cited hair loss and rashes.

"Lead poisoning is an insidious disease," Hunter Shkolnik, a lawyer for one of the families, told NBC News. "We know the brain is permanently and irreversibly damaged, but it doesn't manifest itself immediately. These children have been pushed so far down now they cannot ever achieve what was expected of them."

At first glance, the families would seem have a solid case: The lead poisoning of Flint's water is directly linked to the city's decision to switch its water source from Lake Huron to the Flint River in 2014. But it's not that simple. Sovereign immunity, a concept that generally makes the government immune to civil and legal prosecution, complicates the lawsuit in a way that favors the powers that be. And there are at least three other previously filed lawsuits related to the water crisis still pending.

To break down what these families are up against in a sensitive case, we spoke to Cornell Law School Professor Jeffrey Rachlinski, an expert on environmental law.

VICE: How many cases have there been where there's a class-action suit against government officials over an environmental disaster?
Jeffrey Rachlinsk: The most recent salient lawsuit of this type was against the Environmental Protection Agency (EPA) arising from the first responders at the 9/11 World Trade Center site. Typically, suits are not against the government and are against private parties, because most governments—including those in the state of Michigan—maintain a degree of sovereign immunity for providing things like water. It's pretty hard to sue them unless you can prove that they intentionally poisoned the water. You can't sue for the kind of negligence that is most common in environmental suits.

That doesn't sound very encouraging for the families in Flint. Do you expect their case to go forward?
That's actually hard to predict because this is a somewhat unusual claim. Environmental torts are typically brought as private torts. It's the same type of lawsuit as if you got into a car accident with someone who's at fault. This isn't being brought that way; it's being brought as a constitutional tort. You have to convince the court that there's been a deprivation of due process.

This is a bit of an end-run around sovereign immunity, and the courts are likely to treat it that way. So I don't think it's very likely to succeed. It's a highly sympathetic case in many ways because the actions of the public officials are so outrageous in so many ways. [But] I'm a little surprised the plaintiff didn't try to prove alleged recklessness. It's hard to prove intentional conduct, but recklessness—maybe it's something [the court] would be more sympathetic to.

Wait, sorry—what exactly, is a constitutional tort?
It's an allegation of the violation of the 14th Amendment's due process clause. So no deprivation of life, liberty, or property without due process of law. The Fifth Amendment has that clause in it as well, but the Fifth Amendment is for the federal government. The 14th Amendment protects individuals from violation of their due process rights [anywhere in America].

But you can see how that doesn't sound right [in this context]. It's not really the case that the state didn't provide due process—it's that the state provided a substantive [and dangerous] outcome.

With sovereign immunity likely in the way, how can the government be held accountable for this crisis?
The city of Flint almost certainly violated the federal Safe Drinking Water Act, which does, in fact, provide significant civil penalties against the city for doing so. At the federal level, we regulate drinking water and provide fines when that water doesn't comply with federal standards. [But] those fines are not paid to the citizens of Flint—they're paid to the EPA. They're paid to the federal government. There are all sorts of potential quasi-criminal misconduct that the officials may have engaged in, but none of that gives any recovery to the plaintiffs.

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