Edwards & Jennings, P.C. and Lieff Cabraser Heimann & Bernstein, LLP have filed a proposed Second Amended Complaint on behalf of the residents of Benton Harbor, Michigan, in the federal public health emergency litigation arising from the poisoning of the Benton Harbor, Michigan, water supply caused by lead, bacteria, and other contaminants. As described in the Complaint, since at least 2018, Benton Harbor residents, including children and infants, have been exposed, through ingestion and other uses of water, to dangerously high levels of lead and other contaminants that exceed those permissible under the state and national Safe Drinking Water Acts.
Benton Harbor is an environmental justice community, a community most impacted by environmental harms and risks with a population composed primarily of 85% African-American residents. 27% of Benton Harbor’s population are children. The plaintiffs, many of whom are children and infants, have been and continue to be exposed to extreme toxicity from lead and other hazardous contaminants, causing an “imminent and substantial endangerment to their health.”
“Government officials and the private engineering contractors must be held legally accountable for the devastating harm that their deliberate actions have caused to the people of Benton Harbor,” stated Edwards & Jennings partner Alice Jennings, who represents the plaintiffs in the case, “most particularly to the children who will be saddled with cognitive and developmental injuries for the rest of their lives.”
“We are pleased to partner with the Lieff Cabraser Heimann and Bernstein, LLP law firm in this historic environmental justice class action lawsuit,” added Edwards & Jennings partner Carl Edwards, who also represents the plaintiffs, “as we pursue justice and accountability on behalf of Benton Harbor residents for the tragedy that has resulted from the violations of their constitutional and legal rights.”
The Complaint provides a detailed history of the control and management of the Benton Harbor water supply, which, at all relevant times, was under the control and oversight of the state and local government and their officials. During these times, the Benton Harbor Water Department was directly affected by drastic layoffs ordered by the state and local government that resulted in half of the Department’s employees being dismissed. As the Complaint observes, “These State-ordered layoffs severely compromised Benton Harbor’s Water Department’s ability to deliver clean, safe water to its residents, including each Plaintiff, as is required by federal and State of Michigan Safe Drinking Water Acts.”
As the Complaint further notes, Benton Harbor has a history of violating the Michigan Safe Drinking Water Act, and of failures in its critical duties of managing the Benton Harbor water system and protecting the public health, a history that included divestment, deferred maintenance, lack of organization, and a fundamental inability to properly manage the system that was well-known to the Defendant officials.
As the Complaint details, since at least 2018, the State, its agencies, Directors and employees, and Benton Harbor, and its officials and employees, were publicly silent and denied that Benton Harbor’s water supply was poisoned with high levels of lead and other contaminants. Further, each State Defendant ignored the information that they knew was being disseminated to the public by Benton Harbor Defendants claiming that the water supply was not poison and was safe to drink.
“[E]ach Defendant State government official since at least the year 2018, knowingly made the decision to continue to extend the deadline for various violations of federal and State Safe Drinking Water Act laws, including not requiring Defendant Benton Harbor officials to notify and warn Benton Harbor residents and each Plaintiff that the water supply was poisoned and unsafe to drink, all while the lead levels continued to climb above the legal limit 15 ppb.”
Second Amended Complaint, section V.
The long list of omissions, disregard, and failures to act by the government officials in the face of a known and worsening public health crisis is covered at length in the Complaint. The totality of these violations were greatly exacerbated by the Defendants’ active concealment of the problems and inadequate casual attempts at amelioration, leading to a situation where the community’s water was toxic and wholly unfit for use, but where use perforce continued, including as parents of newborns were feeding their babies formula made with the poisoned water.
“All families are entitled to clean drinking water,” noted Lieff Cabraser partner Mark P. Chalos, who represents the families along with Edwards & Jennings. “No government should turn a blind eye to reports of lead and dangerous pathogens in drinking water.”
“I am frankly staggered by the governmental failures and willful actions that led to the Benton Harbor community’s wholesale poisoning,” stated Lieff Cabraser partner Annika K. Martin, who also represents the plaintiffs in the case. “And I could not be more honored to be working to try to remediate the massive injustice and harm they have suffered alongside civil rights champions Carl Edwards and Alice Jennings, whose environmental justice work in Michigan and nationwide is renowned.”
The class action lawsuit seeks relief in the form of compensatory and punitive damages and an order declaring the conduct of the Defendants unconstitutional, as well as an order of equitable and injunctive relief to remediate the harm caused, including repairs and compensation for property damage; immediate abatement of the lead service lines; clean uncontaminated water to be delivered to each affected home until the lead lines are fully replaced; establishment of a medical monitoring process and periodic medical testing; the appointment of a Monitor to oversee the water operations of Benton Harbor; and the establishment of a Community Medical Center for the coordination of care for exposed children.
The suit also seeks ongoing water lead testing for each home, the identification of diagnostic tools to evaluate the presence of lead in the bodies and bones of affected families, forgiveness of all Benton Harbor loans for replacement pipes and related infrastructural work, and an immediate injunction to stop all Benton Harbor residents from paying for the contaminated water as well as disgorgement of all monies previously paid for contaminated water.