Whitmer, other state officials dismissed from federal Benton Harbor water lawsuit

Gov. Gretchen Whitmer and other state officials are no longer part of a federal lawsuit that alleged sweeping misconduct related to lead contamination of the Benton Harbor water system.

However, a federal judge concluded the lawsuit could proceed against city Mayor Marcus Muhammad, a former water department leader and the city as a whole. Other Michigan leaders still face comparable allegations in ongoing state lawsuits as well.

In a recent order, U.S. District Judge Hala Jarbou determined Benton Harbor residents and their lawyers did not show Whitmer or leaders of either the state health or environmental departments caused the contamination of the southwest Michigan city’s water supply. Instead, allegations their indifference exacerbated the problem are not enough to keep them in the lawsuit, she determined.

“Alleging that particular defendants, like Governor Whitmer, Mayor Muhammad, EGLE Director Liesl Clark, and MDHHS Director Hertel, were aware of the City’s water problems and failed to act does not state a substantive due process claim against them,” Jarbou wrote.

“The court is not obligated to infer unconstitutional conduct from a lack of action or to infer deliberate indifference, let alone a violation of the right to bodily integrity, from a lack of due care. Indeed, to do so would risk making the provision of clean water a constitutional obligation, such that any government official who failed to take affirmative action to correct a contaminated water supply would violate the Fourteenth Amendment.”

Benton Harbor residents brought the lawsuit in November 2021 against Whitmer and many others. In addition to Whitmer, Jarbou dismissed Michigan Department of Health and Human Services Director Elizabeth Hertel, former director Robert Gordon, Michigan Department of Environment, Great Lakes, and Energy former director Lisel Clark and EGLE department official Eric Oswald.

"Governor Whitmer has led the way in ensuring Benton Harbor residents have safe drinking water straight from their tap by implementing a whole-of-government approach and replacing lead service lines in Benton Harbor," said Whitmer spokeswoman Stacey LaRouche.

"Governor Whitmer remains committed to ensuring everyone can access safe drinking water so they can live healthy lives."

For years, Whitmer and her team said they did everything they could to adequately respond to lead contamination in the city, eschewing any comparisons to the Flint water crisis. In a statement, Michigan Attorney General Dana Nessel lauded the court’s decision.

“Today's ruling reflects the state’s proactive response to the water contamination in Benton Harbor,” Nessel said Thursday, noting essentially no lead services lines remain in Benton Harbor.

“State officials immediately acted to their best abilities to remediate the situation when they learned of elevated lead levels.”

Lawyers representing Muhammad and former water plant operator Michael O’Malley did not immediately respond to a request for comment.

Benton Harbor officials noted high lead levels in the city’s drinking water in 2018. No amount of lead in water is safe, but regulators consider trace amounts allowable. The lead amounts exceeded these levels for years, despite local, state and federal officials arguing they were treating the water and working to replace lead pipes.

The lawsuit, and comparable state lawsuits, allege Michigan and city leaders deliberately misled residents about the quality of their drinking water while not doing enough to improve it. Despite Jarbou’s determination that the claims against state actors failed muster, lawyer Mark Chalos, who represents Benton Harbor residents, said they are pleased their case will proceed.

“No government official should be permitted to deprive communities of safe drinking water, either by deception or deliberate indifference,” Chalos said in a statement.

“The Benton Harbor community’s claims against the state agencies and state officials are going forward in the state Court of Claims. The state court lawsuits detail the failures of leadership, including at the top levels of state government.”

The federal court ruling largely mirrors an earlier report rendered by a magistrate judge who also reviewed the allegations. Both the magistrate and Jarbou agreed the claims against Whitmer and other state leaders failed to articulate actions that “shock the conscience” or otherwise mirror the egregious allegations included in Flint water crisis legal proceedings.

“The Fourteenth Amendment protects against specific kinds of particularly egregious government actions. It does not require that all statements by government officials about public health risks be truthful and accurate. Nor does it require that government officials make good decisions, exercise reasonable care, or intervene to correct the conduct of others,” Jarbou wrote.

While Benton Harbor is largely without lead service lines, many communities around Michigan and the country continue to battle lead in water. Experts encourage every resident to change any lead water piping in their homes.

Reach Dave Boucher at dboucher@freepress.com and on X, previously called Twitter, @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Whitmer, other Michigan officials dismissed from Benton Harbor lawsuit