Last week, the Sixth Circuit Court of Appeals held that three lawsuits against Michigan’s environmental officials over Flint’s lead-tainted water must be litigated in the state court and not the federal court. At the heart of the appeal was whether the officials were acting as federal officers and, as such, could afford themselves of federal officer removal and have the federal court decide the cases. The Sixth Circuit rejected the argument that the state officials were acting in a federal capacity and remanded the cases to state court.

The officials argued that in undertaking decisions to switch Flint’s water supply from Detroit’s water sources to water supplies from the Flint River, they were acting under the auspices of power granted to them by the federal Environmental Protection Agency (EPA). However, at oral argument, the officials conceded that the EPA played no part in the decision to switch the drinking water supply to the Flint River. Further, the Court found that there was no evidence that there was no evidence that the EPA required any specific actions or inactions of the officials. As such, the Court found, the officials were merely carrying out actions authorized under Michigan state law. The fact that Michigan chose to mirror its state laws closely with the federal laws did not mean that the officials were also carrying out decisions under the power of federal regulatory authority. Nor did the facts that Michigan received some funding from the EPA for their environmental programs and was required to file reports to the EPA regarding water quality issues.

The Sixth Circuit’s opinion was not unanimous, however. Dissenting Judge David W. McKeague wrote that deference must be given to the party attempting to remove the case to federal court based on the federal officer argument. By addressing each issue one-by-one and not looking at the totality of the facts supporting the officials’ position, the majority applied the wrong standard of review, wrote Judge McKeague. He wrote that “as described in the notice of removal, the [officials] have stated facts which, if proved, could support a finding that they were, in their enforcement of water quality standards, acting under the guidance and oversight and, ultimately, direction of the EPA….These allegations are to be accepted as true for purposes of this facial assessment.”

Although the Flint, Michigan drinking water lead levels are currently receiving the most media attention in the lead hazard realm, in the past, the most notable target involved the lead paint industry. Prior to 1978, lead was used as one ingredient in the manufacturing process of paint in the United States. Homes built prior to 1978 likely utilized paint products that contained lead. Over time, the paint products peel, chip, or flake, creating a risk of lead paint ingestion for children. Given that rooms in homes are typically repainted when normal renovations or maintenance is performed, lead paint used in millions of homes built prior to 1978 remained there for decades. As these homes age and the paint naturally wears away, the potential for children to ingest paint chips containing lead increases.

Whenever a child’s blood lead levels show elevated lead in the blood, the easiest target for plaintiffs’ attorneys are homeowners, property managers, and landlords. This is due in large part to strict laws in many states that hold homeowners and landlords liable for elevated blood lead levels in children (whether the child shows any signs of developmental delay or not) if the child resided in the home and there was lead present in the paint in the home. As the ongoing situation in Flint, Michigan shows, though, looking only to lead paint as the possible cause of elevated blood lead levels is unfair to homeowners and landlords given the number of other potential sources for exposure to lead that a child might have.

It is important for landlords, home owners, and property managers to take appropriate steps to test for or monitor the conditions of lead paint in their homes, and steps must be taken to notify tenants of potential lead paint hazards in order to comply with state and federal law. If you are a homeowner, landlord, or property owner, there are ways to mitigate the risk of being sued for lead paint claims and CMBG3 Law LLC can provide counsel to you on these subjects. In addition, if you have been sued because one of your tenants’ children has elevated blood lead levels, we can help.

John Gardella has represented clients in lead poisoning claims, including defending homeowners, landlords, and property managers in Housing Court and Superior Court. If you have any questions or would like more information, please contact John Gardella (email him or 617-936-4353).