case number sixteen sixteen eighty four beatrice bowler versus darnell early at all case number seventeen eleven forty four melissa mays at all versus rick snyder at all oral argument is to be fifteen minutes to be each of these that's correct you got to the question before the court today is whether the safe drinking water act preempts these constitutional claims were contaminated drinking water is a fact of the case the answer is no for two reasons first the plaintiffs in these cases are using one thousand nine hundred three to enforce independent constitutional rights totally distinct from the statutory rights created by the safe drinking water act second the defendants have failed to carry their burden to prove through the plain language of the act its legislative history or any other specific evidence that the act shows that congress intended to as this court said abandon the rights and remedies of the constitution as the record makes clear your one thousand two hundred twenty three the lower court's analysis was legally incorrect when it began with the assumption that the crux of the plaintiff's claims arise under the safe drinking water act and are thus preempted by the crux of the plaintiff's claims in fact however our rights and liberties guaranteed by the united states constitution first are honored with regards to the national sea clamors doctrine it is in a political to this case at twenty six twenty one a national c clamors the issue before the supreme court was is the detriment that the plaintiffs suffer if you perceive them in the safe drinking water act in other words why is the constitutional claim a superior wh thought period remedy thank you just out of the question i think respectfully honor is knots whether one is relatively superior to the other it depends upon the need of the action of the time i think the court would agree with that the question is  the rights provided or created more accurately by the safe drinking water act the same rights that the founders created in article one section ten for example a right to be free of impairment for contract and they're not they're entirely different rights geared  entirely different parties based upon entirely different types of statutory claims your honor plainly as this court said in the lord see clamors does not on its face stand for the proposition that a federal statutory scheme can preempt independently existing constitutional rights which have contours distinct from the statutory claim the question is this court held the committees for equities sixty four is whether congress intended to abandon the rights and remedies of the constitution this court adopted a two part test first or the constitutional claims virtually identical of the statutory claims or do the acts remedies indicate that congress intended to preclude reliance upon ninety three constitutional claims this case under fitzgerald and how would you distinguish it from your honor if i could i know that we certainly are short on time but i want to make sure i answer your honor's question precisely with regards to mattoon the history was that this court committees for criticized this court's holding and found it to be not persuasive then the supreme court took fitzgerald and used the virtually identical rationale employed by this court which is look at the contours of the rights look at the remedies are the two the same claims and they're not your honor they're entirely different claims for example if we were to look only at the article one section ten claims for example the impairment of contract it requires legislative action by a state actor to substantially impaired contract it has to be a legitimate government purpose and has to be done reasonably those factors your honor we're actually discussed by this court welsh versus brown where it found that at least as a preliminary matter based upon the record the legislative act portion of the test was satisfied by the actions of the emergency manager under then public act for now public at four thirty six yes your time is short i would like to hear your argument on the minimum why you believe that amendment munity has completely been wiped and we can proceed thank you i see what time was a fight could endure as much thank you very much so there's the answers are a little bit different depending on who we speak about so if we could let's start with the emergency managers who as this court's guidance and well shows act with the power of the state sovereign but are in fact agents of the city and this court in the perry versus south we southeastern boll weevil case judge closer there was on that panel had a four factor test where the court pointed out the of the four factors in determining whether nine eleven community applies the most important factor is the state's obligation to pay any judgment that would accrue under public act four thirty six the financial stability act at one forty one one five six zero paragraph five litigation expenses and payments made in settlement of civil proceedings shall be paid by the local government so put differently your honor with regards to the city of them immunity is not the question with regards to the emergency managers under this court's test teaching and perry clearly they are not subject to all of the immunity but to get back to your honor's question with regards to i think would be for the state particularly for in your complaint that department yes your honor and that's actually within the record at page one thousand and forty six and one thousand and forty seven two arguments first that by proceeding substantive in the litigation the state has waived immunity we cite to a case out of puerto rico the vieques case where by enacting in this case as i cited in the record one forty six and one forty seven the state in acted legislation specific to this crisis and then for reasons that certainly they can explain to your daughter joined in in opposition to a preliminary injunction brought in the boulder case specific to the city if it was indeed the case that it's eleventh them unity and the state had no involvement they not only oppose the briefing but then submitted a joint statement of facts prepared by the state in a footnote in that paper i'm sorry on and i don't have the page but i can get it for you but for rebuttal in the response of the preliminary injunction the state argues that by in joining the city of flint from foreclosing on houses because they can't pay for water they can't use that that would frustrate the state's ability to deliver relief and i read that again this morning your honor and it struck me that that becomes almost a tacit concession the state has an ongoing involvement in this process we also can't ignore the reality even based upon the very limited record that we have that the city of flint as much as it may want to seize collections is frankly powerless the state government holds the keys they hold both the debt and at least at the time of this discussion the emergency manager powers and as much as the city may like to stop collecting and stop foreclosing they can't by virtue of state law so certainly you're out of there is an opportunity for prospective relief under ex parte you know you are with that if i could in closing yes thank you ron briefly i would hope very briefly or are just to just identify the contours between the two rights if you look at the safe drinking water act it applies to individuals public and private corporations all levels of government has no requirement for legislative action does not cover small systems of less than twenty five people regardless of who owns the system does not cover exempt systems article one section ten through ninet only the state actors it requires legislative action looking at the right the right in the safe drinking water act is for each citizen to enforce the regulations of the ninety contaminants substances the right under article one section ten is a constitutional right as this court held in welsh that with the founders treated with grave significance a right to be free from state legislative action that substantially impairs a contract right without a significant and legitimate public purpose and when the impairment is unreasonable and necessary lastly out of turning to the remedies the remedies available in the safe drinking water act absolutely do not and invents and it's had by congress to preempt constitutional rights first the e p a s remedy is to reduce state grant funding for  under the ninety three article one section ten is for contract damages injunctive relief and attorneys fees for these reasons your honor the burden of the defense to show the congress and events that tend to abandon constitutional rights they cannot do that and this court should remand this matter back to the district court for the findings thank you thank you violation and indeed there'd be no federal remedy at all so long as the water complied with the technical requirements of the safe drinking water act and i think that gets judged donnel to the question your honor was asking why does it matter it matters because there might not be a remedy at all right if there is a if there is compliance with the s d w a which contains a variety of technical regulations that everybody acknowledges do not cover all forms of known contaminants in the water but also there would not be a compensatory remedy which is hundred three provides now if what we were seeking to do here was to enforce the requirements of the safe drinking water act through nine hundred eighty three that would be a problem for our case that would walk us right into the  we are seeking here to enforce a longstanding preexisting one nine hundred eighty three remedy for violations of the fourteenth amendment and i think it's tranche this gets to your honor's question on the fitzgerald analysis right what fitzgerald specifically says about that is that the defendants will have to show that congress affirmatively intended to foreclose that longstanding preexisting remedy for a one nine hundred eighty three violator for a constitutional violation and the crucial consideration there in the word of the court uses is crucial a crucial consideration there is congressional intent how do we determine congressional intent justice alito as unanimous opinion for the court says look if what you're trying to do is use one thousand and three to enforce a federal statute then it's pretty probative congressional intent that they set forth a particular procedure for enforcing that statute but he says if what you're trying to do is enforce the constitution then if congress adopted a statute that has rights and protections that are significantly different than the rights of protests under the constitution that is a strong reason to believe that congress did not affirmatively intend to foreclose the constitutional remedy and that your honor is what we have here  have a statute that defendants can violate the safe drinking water act in many cases without violating the fourteenth amendment and defendants can violate the fourteenth amendment in many cases even with regard to dirty water without violating the safe drinking water act the statute is only tenuously related to constitutional rights there may be overlap in particular cases but the question is whether congress meant for this statute to foreclose the remedy for violation of the fourteenth amendment that's existed since  congress adopted the section nine hundred eighty three and here we simply don't have that there is simply no reason to believe that congress thought that this law which has only a tenuous relationship to constitutional rights was meant to be the vehicle for enforcing federal rights to foreclose that remedy and that's not just because the statute says nothing about constitutional rights although it doesn't that's not just because as far as anyone can tell in this litigation the legislative history doesn't even touch on constitutional rights although that's true as well it's because congress adopted a statute that just has very different coverage than the constitution what i would like to i would like to also respond to it's tranche to your honor's question about the eleventh amendment because eleventh amendment argument was made in our case as well so i want to be clear about the relief we're seeking we're seeking damages against defendants in their individual capacities and damages against the city of flint none of which you know none of which would implicate the eleventh amendment as for our official capacity relief against governor snyder what we are seeking is prospect of relief and it's a relief that's prospect of under the milliken two case right what we are seeking is an order going forward for the state to fix private property to provide compensatory education by the way compensatory education of course was the very subject of milliken to the very thing the court in milliken two said was ok to provide medical monitoring and also to provide assessments of the criminal justice and juvenile justice consequences of the pollution that the people of the city of flint experience so we are not seeking retrospective monetary relief from the state treasury so there is no eleventh amendment barring i realize that this is not an issue that we have to deal with right now but just f my interest on the medical monitoring how long a period will you think to have the monitoring cover assuming the court would grant that will grant that yeah i mean to be honest with you your honor of course we haven't gotten anywhere close to that far in the litigation right so so and i think a lot would depend on what the evidence showed about the length of the harm there are harms from lead poisoning for example that are certainly lifelong but so so i wouldn't say it would be you know six months of medical monitoring but i think that's something that would really emerge in the litigation based on the proof in the case so so so i think that i think that is that is certainly true as well i will i will i it please the court my name is margaret benton housing and i'm here on behalf of the state defendants the safe drinking water act is the federal remedy that congress fashion to protect the nation's drinking water this case presents two questions what is the preclusion standard and has it been met and i think this goes i'm sorry and have you met your birth correct right every met our burden  and i think we had a question actually from judge transfer guarding fitzgerald and whether it's the same as the virtually identical test the supreme court has never articulated a heightened standard for  constitutional claims and it didn't and fitzgerald the supreme court was clear in in all of its preclusion cases that primary emphasis is on the comprehensiveness of the remedial scheme and  i want to step back because when we examine a statutory calling the first thing the law directs us to do is look at the words of the statute so can you point anywhere in the in the safer in water act to  understand that but i think there's a preliminary question you get to a comparison of these statutes but the first thing you have to ask yourself is what does the statute say what did the what did congress until then what do we see in the legislative history that evidence this congress is intact so my question my first question to you is what in the s t w a l shield that congress intended to preclude well would just cut to the chase constitutional because smith is educational and that the supreme court said in smith we've got constitutional kline's and we have statutory claims and the reason the the key way that we preclusion in smith is by looking at what the what congress said or what the legislative history said and there it was easy to find clue ssion because the legislative history and portions of the statute themselves say this is in order to implement the constitutional rights of children in education clear example of how congress can say we are precluding other remedies that's really the key early case that has both constitutional and statutory remedies in it let's assume for the time being that we can exclude the ones that have only statutory smith is instructive for you so my question is on the basis of smear what do you hey of in the s t d either in the language itself or the legislative history that suggests the same thing that constitutional remedy use or preclude the safe drinking water act is all about protecting water and public health and that's what these constitutional claims are about and that's what's in  klein about safe drinking water if in fact what has happened is that governmental entity has said or could say i'm going to take drinking water and i'm going to say in this a fluent community we're going to treat the drinking water this way and in this poor or racially distinct community i'm going to treat it a different way and let's assume in that example neither of those cases by like the site drinking water we don't need to address that question in this case because you do if you're trying to create a blanket rule that says educational services that were distributed equally but that didn't make the h a non for clues of so that kind of applied in smith as well but what smith does tell us is that it is possible to preclude independently expressly there and if it's not expressly there what language you five in the history or and tandem with other acts that allows you to read it is the position that you are asking us to adopt the entire act is about protecting the nation's drinking water that's what these claims are about take the bodily integrity claim it is saying we have a bodily integrity right not to be exposed but just to just because it's about protecting the clean water that doesn't in and of itself say that if a limit eight other rights are protections of a constitutional nature that that might be there which might protect the same or prohibit the same conduct or activity here and i think the i think i think what's causing the court some concern is that the safe drinking water act doesn't talk about constitutional claims that we have not recognized fundamental rights to clean drinking water to clean necessarily get rid of that equal protection constitutional right would it i think i think the equal protection clause when it comes to those types of claims that perhaps are closer question and i think you know you have to look at what's being alleged in this in this case all this being alleged is flint provided its own residents with water that was the you know it was basically violative of the safe drinking water act while the rest of michigan did it that would make their would racially distinct community or poor community isn't there an equal protection claim and it seems to be that that's pretty much what you have here looking at or you can extrapolate that from from plants racial demographic and i was just making the distinction is that flint flint didn't provide different water to different residence within its own water district that entire district received the same water so that was the distinction that i was making but like i said even if the equal protection claim is a closer call the rest of the claims it's i mean the bottle the integrity claim is is putting another label on you know having a fundamental right to safe drinking water and as the first circuit said in maternity that that is that is a safe drinking water claim and congress statutory power to the legislature and if they pass a statute and then they decide you know we want to challenge how that statute operates or we want to add or subtract remedies then they who ha been in charge of this may also be in charge of but the legislature is not in charge of constitutional rights so if the legislature is going to take them away they have to there has to be evidence of intent fitzgerald clearly says that and you draw it from more than one thing that's hence my question what does the language of the statute say here we have a savings clause we have no specific reference to constitutional rights so that's one side and then after we've looked at the statute then we turn to complera tours and we say how does this remedy compare with everybody can we assume that the legislature has affirmatively shown us that it intended to retract constitutional rights over which it is not in charge of creating this piece of legislation in the one thousand nine hundred three context counsel has given you a number of examples that would show that there are disparate remedies here so what is your response is to hand you can hold on to the tune in light of fitzgerald and exchange standard fitzgerald did not adopt a virtually identical test it said that you look primarily at the comprehensiveness of the scheme and then you look to see if the rights and protections protections significantly divergent that is very different than virtually identical adopting a virtually identical so all is the whole rule that it would almost all you know you never see constitutional what's the best case that supports you and i understand you have some more responses for judge strange but but i'm  congress can't do anything to the constitution it exists but what they can do is an act remedies and they can certainly decide and this isn't smith actually they can certainly decide ok we don't longer want that remedy for that constitutional right we want this one and  just that's for that i understand that involve the statutory claim but it did it they went on about the comprehensiveness of the remedial scheme i don't think the comprehensiveness of the safe drinking water act for middle scheme is in question it's really about whether you know whether it's s opinion was submitted to you guys and i just wanted to make a quick comment as i know i'm way out of time but she read the end of that savings clause and any other relief to to preserve constitutional claims but if you read it that broadly it makes the rest of the clause superfluous i mean what it says is that it reserves statutory claims and common law that is what that preserves and that's exactly how these claims i mean i think going back to i'm sorry for you is that that the savings clause may not independently solve this problem but the savings causes one thing to be considered it's congress was saying there are other remedies out there and we are going to protect those other remedies so i guess i would get back to my concern that meting can no longer carry the day for you tune but you know when you're looking at the rights and protections of the save drinking water i mean we have two things that we looked at the rights of protections primarily are recovering all the same defendants and in you know  eighty three claims we're talking about public defendants well and under safe drinking water act we do have a few private defendants but not very many it's a minuscule number so it's almost have all the same defendants and then when you're talking about the liabilities standard well the safe drinking water act you just have to violate a not going to require any other showing so i don't think the liability standard really makes it that significantly different so i don't think they significantly diverge the difference because the constitutional claim to protect you against intentionally discriminatory klein i think that and i think that goes back to smith is that even even if you have certain certain requirements  under i mean i think this is what i could do that too i mean the bottom line is if you're violating the act then the safe drinking water act is going to cover it it's it doesn't it doesn't you know you don't have to even prove intent if it applies to do you  think don't you think that under your argument if congress passes a generally comprehensive statute to address some portion of a problem which in some ways like drinking water does because there  huge number of contaminants that are not included in that statute or in the regulatory environment that we're salts from it it seems to me that if if your test applies any time congress passes a substantially comprehensive statute in a certain area someone else is going to stand before us and make the same argument and that means that all your constitutional rights are gone and i found that concerning what you should response well  i think there were you know i think that can go both ways i mean there were over two thousand you know safe drinking water act violations in michigan just last year are all of them constitutional claims i mean where do we draw the line up until this point we ha not recognized environmental constitutional rights so i think this is what we're being invited to do through these claims particularly the bodily integrity claim that is a claim for a fundamental right  may please the court assistant city attorney william him here on behalf of the city defendants the issue in this case in this case is really about safe drinking water and whether the plaintiffs can bypass congress carefully constructed remedial scheme by artfully pleading a constitutional claim under nine hundred eighty three they should not be allowed do so for three reasons here your first the safe drinking water act is a comprehensive remedial scheme and this is not something that the plaintiffs are contesting here they're  have they are they are said arguing that it doesn't matter but they're not arguing that the safe drinking water act is not itself a cost a comprehensive remedial scheme second as a result of that this case is more factually analogous to the situation that was presented in smith v robinson as opposed to fitzgerald the bartle school commission because in smith v robinson the education of the handicapped that was a comprehensive remedial scheme where the i just want to be key distinction in that i mean what we're seeking is congressional wing tip and i just told us well i think in smith the supreme court first looked at the remedial scheme that was in the education for the handicapped act and noticed that it was a comprehensive scheme providing for judicial direct  three what they did in fitzgerald was they they built on that on that basis and said ok for constitutional claims we we can also compare the rights protections under the statute and the constitution  this is an additional factor that can be considered once the initial assessment of whether or not the statute is a comprehensive remedial scheme has been conducted you to your briefing door also distinction vehicle that provides an avenue by which constitutional rights can be vindicated it doesn't create the substantive rights itself that's that's a you know it's a well known it well established portion of it actually three claim is that they don't it doesn't create the right  axed several questions of my colleagues about the differences in the remedies and the remedies themselves are largely immaterial here the question is whether the rights themselves can be vindicated under that that c be the sole source of remedies for claims of that nature but they like the legislative history doesn't say so source and you know in fitzgerald the court at managed that we should be mindful to not lightly conclude that congress intended to preclude reliance on section one thousand nine hundred three as a remedy for my other things equal protection and i says we don't have fitzgerald encouraged us to do we we don't have much to anchor it and tell us that there's been preemption but i'm not sure that we have found the language that really roots that of it and it was outside of the scope of the safe drinking water act i don't know if i could argue that such claims are excluded but when the plaintiffs bring claims that in trent that inherently intrinsically include the provision of safe drinking water they've one other thing that i wanted to raise was that the plaintiffs have in both both amazing abilities play case argue that the supreme court essentially adopted this court's previous decisions in communities for equity and sharp and that's that's quite honor you think that they created a different test of their own and that's what we've been discussing to correct your honor and the fitzgerald test begins by saying even they if you look if you read how the supreme court reached its decision in fitzgerald you see that the supreme court first looked at title nine and looked and did his assessment of whether or not title nine was a comprehensive remedial scheme and it concluded first just solely on the statute that it was not because title nine had no express cause of action it had they had only an implied cause of action and i thought this implied cause of action was it was insufficient to indicate that congress hadn't had intended to preclude ninet three then looked compared to the rights and protections and notices that there were significant divergence is because persons that would have that would have been const she liable under ninety three were not being held liable under title nine that the standards of proof were different and and to it took this these secondary observations and use that to support its initial conclusion based on the comprehensiveness of the or at the lack of comprehensiveness in title nine that constitutional claims were not precluded under nine hundred ninety three things are not precluded by title nine here we have the safe drinking water act which is a comprehensive remedial scheme it provides a direct judicial cause of  private cause of action for the four for plaintiffs and it provides not just that but it also provides judicial review of the decisions by the by the e p a the standards that are set what standards are set all of that is subject to i would just sit ask the court firm the decision the district court because whatever divergence is exists are not significant enough to warrant overturning congressional intent that can be that can be inferred because of the comprehensive nature just a few very quick points in rebuttal i think the dominant theme of the defendant's portion of the argument is that defendants are trying to pull a mechanical and rigid test out of what the supreme court has said is really just a commonsense inquiry so there's no mechanical rigid test that says whenever there's a comprehensive remedial scheme you can use one thousand nine hundred three we know that from this court's own cases involving the use of one nine hundred eighty three to enforce the fourteenth amendment in public sector employment notwithstanding title seven which has as comprehensive a remedial scheme as there is and that is a body of case law that predated fitzgerald but that this court has reaffirmed since fitzgerald the question is a commonsense one is what was congress trying to do when it passed this law that's the first thing that the court says in fitzgerald right the court says the crucial question is congressional intent and before the court gets to the application section that mr kim talked about the court talks about well what are the considerations how do we go through this analysis well when a plaintiff is seeking to enforce a statute through one nine hundred eighty three the comprehensiveness of the or of the remedial regime is pretty important because it shows congress didn't mean to use some other means to enforce the same statute but when we're looking at constitutional rights what we're looking at is a comparison of the rights and protections under the constitution with to clean drinking water why are you not trying to do that for us for a couple of reasons i mean first of all as your honour's discussed the equal protection claim there's nothing nothing in any of our claims depends on a right to clean drinking water let me let me just be clear about that a constitutional right to equal protection claims right what they are about is intentional discrimination it could be intentional discrimination through water it could be intentional discrimination through something that has nothing to do with the environment whatsoever right so so there's nothing in that that they're showing  dismiss stage here if you look at our complaint i think it's paragraph fifty two to sixty four of our amended complaint what what that what we allege is that actors from the city from the county and from the state and of course the emergency manager who sort of the city and sort of the state all got together and made this interim plan to use flint river water for flint but to continue to use cleaner lake huron water for the surrounding predominately white areas of genesee county and we'll ledge that that's based on intentional discrimination we also allege that the no responsiveness to citizen complaints for eighteen months after the switchover and in fact the suppression of evidence to the public of the harms caused by flint river water was a separate equal protection violation because had this occurred in a different city  that was not a majority black not a predominately poor city the state would respond and defend its would have responded differently there is also of course a subset of due process claim here and that subset of due process claim does there are two sums of due process claims they do not depend on fundamental right to clean water right what we are water is the means by which the violation occurred but what we are alleging is that defendants knew that the water they were using was harmful it could have been water it could have been air it could have been something that wasn't environmental at all the crucial point is they knew that this was harmful and they acted with a sufficiently culpable mental state and i want to suggest has been hasn't suggestion that that means every safe drinking water act claim becomes constitutional is simply false first of all we couldn't have deliberate indifference in every case but also i mean if you look at the safe drinking water act regulations right there are a lot of regulations that the aim is to protect clean water but it would be really difficult to say there's constitutional significance to going you know one part per billion over the maximum contaminant level line right which is what it would take really to to to constitutional as all safe drinking water act claims there are a lot of cases where there's a violation of the safe drinking water act without a violation of the constitution and because violation with no violation of the safe thinking water act so the question is again that common sense question right the common sense question of what was congress trying to do when it passed the safe drinking water act did it really mean to try to take away the longstanding preexisting one nine hundred eighty three remedy for violation of the fourteenth amendment like it did in the education for the handicapped act and we see throughout the legislative history lots of discussion of the constitution no we have none of that discussion here and we also have a statute that just has really do appreciate your arguments the staff and very helpful to us as we work on this you know very important case