In a win for safe drinking water advocates, the Michigan Court of Claims recently upheld the State’s Lead and Copper Rule, which was significantly revised in the wake of the Flint water crisis. In an effort to protect Michiganders from exposure to lead in drinking water, the revised rule is more stringent than the federal rule of the same name, for example mandating the replacement of all lead service lines in the state by 2041, requiring additional tap sampling, requiring water systems to conduct a comprehensive inventory of the materials in their drinking water distribution system in order to identify locations of lead service lines, banning partial lead service line replacements, and lowering the lead action level from 15 parts per billion to 12 parts per billion.
The Oakland County Water Resources Commissioner, Great Lakes Water Authority, the City of Detroit, and the City of Livonia challenged many of these revisions, bringing suit against the Michigan Department of Environment, Great Lakes, and Energy (EGLE) in the Michigan Court of Claims in December 2018. In
The Great Lakes Environmental Law Center, in partnership with the Natural Resources Defense Council, filed an amicus curiae brief in support of EGLE. On July 26th, the court granted the MDEQ’s motion for summary disposition, rejecting the defendant waters systems’ challenge.
Below is a brief summary of the arguments put forth by the water suppliers and local governments, and the court’s response in dismissing their claims.
The plaintiffs first attempted to argue that the state did not follow proper procedures when revising the Lead and Copper rule, and therefore the rule was invalid. The plaintiffs claimed that the Regulatory Impact Statement (RIS) for the rulemaking did not include the estimated cost of compliance with the rules. The court held that, on the contrary, the RIS included the cost estimates and adequately addressed why the costs were necessary. Overall, the court found that the plaintiffs’ arguments concerned matters that could have been and were properly addressed during the public comment period, and simply because the plaintiffs disagreed with MDEQ’s conclusions did not mean that MDEQ failed to follow the requisite procedures.
In addition to rejecting the plaintiffs’ arguments that the rules were procedurally invalid, the court also disagreed with the plaintiff’s contentions that the rules were substantively invalid. The plaintiffs asserted that the MDEQ exceeded its authority when it created rules that require water systems to replace the entire lead service line on both sides of the “curb stop” – the dividing line between the public portion of the line and the portion running under homeowners’ property, which is considered privately owned in some municipalities. The court disagreed and found that the Michigan Safe Drinking Water Act (MCL 325.1003) expressly grants EGLE the authority to regulate the entire waterworks system of a public water supply, which includes mixed public and private lines. Notably, the Michigan Safe Drinking Water Act’s statutory grant of jurisdiction is broader than what exists in the federal Safe Drinking Water Act. While both the state and federal law empower their respective administrative agencies to regulate the public water system, Michigan’s Safe Drinking Water Act broadly defines “public water supply” to include the entirety of the system of pipes and appurtenances through which water is obtained and distributed (See, MCL 325.1002(p), (x)). Comparatively, the federal Safe Drinking Water Act defines “public water system” to only include those distribution facilities under the “control” of the operator.
Finally, the court rejected plaintiffs’ claims that by requiring water supplies to pay for the cost of replacing private portions of lead service lines, the rules violated a provision of the Michigan Constitution that prohibits the state from lending credit (Mich. Const. art. 9, § 18). The court found that the supplies would not actually be lending credit under the rule because they could spread the replacement costs throughout the systems and thus would not be giving the service lines away for free, and further the supplies would be receiving a benefit in return: the elimination of potential sources of lead contamination in the drinking water system.
Moreover, even if there were a lending of credit, the court noted that paying for private lead service line replacement would fall under an exception that allows for the lending of credit where “provided by law, for any public purpose” (Mich. Const. art. 7, § 26) in that the costs expended would be for the public purpose of removing lead service lines and promoting public health.
In addition to these claims, the plaintiffs also argued that the revised rule violates the Headlee Amendment of the Michigan Constitution, which prohibits the state from requiring municipalities to provide new or additional services without the state financing its mandate (Mich. Const. art. 9, §§25). In response, the state filed another motion for summary disposition, arguing that no such mandate exists in this case. The court has not yet issued its opinion on this “unfunded mandate” claim, but GLELC is optimistic that the court will once again find in favor of the EGLE and uphold the critical public drinking water protections set forth in the Michigan Lead and Copper Rule.
Pending appeal, the Court of Claim’s decision to uphold Michigan’s Lead and Copper Rule ensures that the strongest regulation regarding lead in drinking water will remain on the books. As local water systems begin the process of replacing all lead service lines throughout the state of Michigan, it will become increasingly necessary for both local water suppliers, EGLE, and the Michigan legislature to identify creative financing solutions to avoid the exacerbation of the rising issue of water affordability. This is particularly important considering that the greatest concentration of lead service lines are in Michigan tend to be in its communities of color and lower income, making this an important environmental justice issue. Simply put, all people should be able to afford clean drinking water. While the Michigan’s Lead and Copper Rule has survived its first legal hurdle, it likely has more to come. Additionally, the work to ensure that all people can afford lead-free drinking water remains.