By Paul Egan
A federal appeals court on Friday refused to stay a judge's order that requires Michigan to make regular deliveries of bottled water to Flint households that don't have a working water filter on their kitchen taps.
Friday's 2-1 ruling by the U.S. 6th Circuit Court of Appeals marks the third time a federal court has told the state to begin the water deliveries, which the state argues is unnecessary and too costly.
U.S. District Judge David Lawson has twice ordered the state to start the bottled water deliveries to all households that the state can't demonstrate has a properly installed and maintained water filter to remove lead contamination.
The state continues to fight Lawson's order and filed a new motion this week saying the water deliveries aren't needed because the unfiltered tap water in Flint now meets federal standards under the Safe Drinking Water Act. Flint says in court filings it supports the state's request to stay Lawson's order.
The majority on the 6th Circuit said the state's "disingenuous claim that the daily delivery of bottled water would be at an expense of $10.5 million a month, is not supported by the record."
"Flint residents continue to suffer irreparable harm from the lack of reliable access to safe drinking water," said Senior Judge Damon Keith and Judge Bernice Donald.
"Many residents who rely on filters that are improperly installed continue to be at risk of exposure to lead. Compliance with the order only requires that the state defendants deliver bottled water to homes until they ensure that a home has a properly installed and maintained water filter, or if the residents opt out of the delivery service."
The order arose from a lawsuit brought by Concerned Pastors for Flint, the Natural Resources Defense Council, the ACLU, and Flint resident and activist Melissa Mays.
"The courts have spoken and the State of Michigan's foot-dragging must end now," said Dimple Chaudhary, senior attorney with the Natural Resources Defense Council.
Defendants in the case are Michigan Treasurer Nick Khouri and members of the state-appointed Flint Receivership Transition Advisory Board, which is overseeing Flint's return from state-ordered receivership to self-government.
Anna Heaton, a spokeswoman for Gov. Rick Snyder, said the state has been delivering bottled water to Flint residents who call 2-1-1 to request it, and will continue to do so.
"The state and city are in agreement that bottled water deliveries to residents who do not require them will reduce the progress made in the city's recovery," Heaton said in an e-mail.
"The dispute in this matter is over science, not over providing resources to residents of Flint," she said. "This is a complex issue where the data is monitored closely and updated frequently and the court did not address more recent testing showing Flint's lead levels under the federal action level."
Mays said in a news release issued by the NRDC that "today's decision is much-needed good news for the people of Flint," adding "I'm especially pleased the court rejected the State's complaints about the 'burden' of delivering safe drinking water to Flint."
In a dissent, Judge Jeffrey Sutton said it's not clear that the Flint drinking water is still in violation of federal law and ordering the water delivery could "do more harm than good."
Sutton said the state defendants should focus on "measuring current water quality and ensuring that each filter works," but "that most assuredly will not happen in the face of this order."
Flint was under the control of a state-appointed emergency manager when the drinking water became contaminated in April 2014, due to improper treatment of Flint River water after the city stopped getting its drinking water from Detroit.
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