From [HERE] Detroit residents backed by the ACLU filed a federal class action Thursday accusing city and state officials of not having a plan in place for low-income residents who face water shutoffs during the coronavirus pandemic.

Michigan Governor Gretchen Whitmer, Detroit Mayor Mike Duggan and water department supervisor Gary Brown are named as defendants in the 101-page lawsuit, and are alleged to have shown “deliberate indifference to the known risks of living without water service that could, did, and will cause harm to plaintiffs.”

The introduction of the complaint states as follows [annotations omitted]:

“Water is a human right and a basic necessity, especially in a time of pandemic. Access to safe, affordable water is critical to stop the spread of COVID- 19 and other bacterial or viral infections through frequent handwashing and cleaning. In Detroit, however, thousands of residents—who are predominantly and disproportionately Black—have suffered from the lack of water service in their homes for years. These residents, many of whom have had their water service temporarily restored during the pandemic, will risk losing their water service again when Detroit resumes its water shutoff policy. The lack of water places these residents and members of their communities, including schools, workplaces, and other shared spaces, at risk of contracting bodily illnesses, including COVID-19.

2. Detroit has had a water affordability crisis for decades.1 While water is generally considered “affordable” when families spend no more than 2% to 2.5% of their household incomes for water services,2 low-income Detroit residents must pay an average of 10% of their household incomes on water,3 and some pay much more.4 As a result, many families in Detroit struggle to pay their water bills.

3. When customers’ water bills go unpaid, DWSD, a department of the City of Detroit, disconnects their service without first determining whether customers have the means to pay their bills. The looming resumption of water shutoffs will exacerbate an existing public health emergency in Detroit absent this Court’s intervention.

4. Between 2014 and 2019, more than 141,000 households in Detroit had their water service disconnected for non-payment.5 Some families live for years without water service in their homes after a disconnection by DWSD. Others are trapped in a cycle of water insecurity with repeated disconnections and reconnections. These water insecure families risk losing service at any time because of their inability to pay DWSD’s rates.

5. In 2014, Detroit disconnected water service to approximately 44,000 households for non-payment of bills.6 In 2018, Detroit disconnected water service from more than 16,000 households.7 In 2019, shutoffs rose again to a total of 23,473.8 As of January 2020, approximately 9,500 homes in Detroit were reportedly still without water service.9

6. Families without water service in their homes are susceptible to infection. Through the years, Detroit’s water shutoff policy has resulted in outbreaks of various forms of infectious diseases, as well as other threats to the health of affected families resulting from such things as the inability of people with diabetes to prepare medically necessary meals, the inability of parents to prepare infant formula, dehydration, and various other health consequences associated with the lack of water. Families without water service are also at risk of involvement with Child Protective Services, as the lack of running water is a factor in determining whether parents are providing a suitable home for their children.10 In many cases, individuals who live without water service in their homes have become carriers of disease, infecting others within their physical proximity. This has created a public health emergency in Detroit.

7. Despite repeated, consistent demands for remedial action by affected communities and their advocates, including Plaintiff People’s Water Board Coalition, Defendants’ response to this public health emergency has been woefully inadequate and appallingly weak. Defendants have failed to implement a program to ensure that Detroit’s water insecure population has long-term access to affordable water and Defendant Detroit has continued to employ water shutoffs as a collection method despite the known risks of living without water.

8. The public health emergency caused by Detroit’s water shutoff policy has been exacerbated by the current pandemic.

9. Water shutoffs disproportionately impact Detroit’s Black and low- income residents. Detroit is a predominantly Black city and has a significant population of impoverished residents. According to data reported by the U.S. Census Bureau, as of July 2019, the population of Detroit was 670,031.11 Approximately 79% of the city’s population is Black and nearly 15% is white.12 In Detroit, 36.4% of the population is impoverished.13 Black people comprise the largest percentage of impoverished or low-income residents of Detroit.14

10. Detroit is the epicenter of COVID-19 infections within Wayne County. As of May 15, 2020, Detroit’s confirmed cases were concentrated in predominantly Black and lower-income neighborhoods.15 According to the Brookings Institution, 90% of the city’s zip codes with the highest number of confirmed cases have populations that are at least 80% Black.16 Data compiled by the City of Detroit shows that Black people account for 82.1% of COVID-related deaths in the city.17 As of late May 2020, Wayne County had the fifth highest death toll from COVID-19 in the country.18

11. Since the COVID-19 crisis began, Defendants and other government officials have admonished members of the public to engage in regular handwashing to prevent infection and the spread of disease. Yet, through its water shutoff policy, Detroit has made handwashing a practical impossibility for thousands of families in the city for nearly 20 years.19

12. The arrival of COVID-19 signaled catastrophe for Detroit communities that were unable to engage in defensive or preventive handwashing and other cleaning measures because of the lack of water service in their homes. The rates of infection in Detroit outpaced all other regions in the State of Michigan as well as many regions throughout the country.

13. Through its Water Restart Plan and Governor Whitmer’s Executive Order (“EO”) 2020-28,20 Detroit has been required since March 2020 to halt its water shutoff policy and restore water service to all customers previously disconnected for non-payment. On July 8, 2020, Defendant Whitmer rescinded EO 2020-28 and replaced it with EO 2020-144, which requires the restoration of water service to customers for non-payment until December 31, 2020.21 However, Defendant Whitmer has not taken the actions necessary to ensure long-term water affordability and access in Detroit. In fact, EO 2020-144 specifies that it does not relieve a customer of the obligation to pay for water, prevent a public water supply from charging any customer for water service, or reduce the amount a resident may owe to a public water supply.

14. Additionally, while EO 2020-28 was in effect, she failed to ensure that municipalities like Detroit were in compliance with the order.

15. In June 2020, the Michigan Legislature passed a bill that will, among other appropriations, grant $25 million to water utility providers across the state to assist customers with arrearages and fees incurred during the COVID-19 pandemic.23 This assistance is limited to $700 per household.24 It provides no relief to customers for arrearages incurred prior to the COVID-19 pandemic or after December 2020, nor any long-term relief for Detroit’s water insecure population. Governor Whitmer signed the bill into law on July 1, 2020, but Defendant Detroit has not indicated whether it will participate in the program.

16. Defendants Detroit, Duggan, and Brown failed to fully comply with EO 2020-28 and restore water service to all customers previously disconnected for non- payment during the COVID-19 pandemic. Upon information and belief, some families in Detroit still lack water service as of the date of this filing, while the pandemic continues to threaten the health of city residents. Consequently, Defendants Detroit, Duggan, and Brown are also currently out of compliance with EO 2020-144, which replaced EO 2020-28. Further, Defendant Duggan has announced that Detroit will resume water shutoffs for customers who cannot keep up with their bill payments after the coronavirus crisis has passed.25

17. By creating conditions that contribute to and threaten the introduction of infectious disease by knowingly and purposefully preventing many Detroit residents from washing their hands, flushing their toilets, and cleaning their homes, Defendants have caused and continue to cause disastrous consequences for Plaintiffs and thousands of similarly situated individuals.

18. Plaintiffs bring this action for injunctive, declaratory, and compensatory relief under the Due Process Clause of the 14th Amendment to the U.S. Constitution, alleging that Defendants have violated their rights to substantive due process. In particular, Plaintiffs allege that Defendants deliberately and knowingly breached the constitutionally protected bodily integrity of Plaintiffs through their deliberate indifference to the known risks of living without water service that could, did, and will cause harm to Plaintiffs. Plaintiffs also allege Defendants Detroit, Duggan, and Brown have violated their rights to substantive due process under the Michigan Constitution of 1963 by these actions.

19. Plaintiffs also bring this action for injunctive, declaratory, and compensatory relief under the equal protection guarantees of the 14th Amendment to the U.S. Constitution and the Michigan Constitution of 1963, alleging that Defendant Detroit has violated their equal protection rights by disconnecting the water service of predominately Black impoverished customers without first determining whether they have the ability to pay.

20. Plaintiffs further bring this action for injunctive, declaratory, and compensatory relief pursuant to the FHA and the ELCRA, alleging that Defendant Detroit’s water shutoff policy has a disproportionate and unjustified impact on Black residents.

From 21. January 2017 to July 2018, 95% of residential water shutoffs occurred in Census tracts with a population that was greater than 50% Black. Additionally, from January 2019 to January 2020, 96% of residential water shutoffs occurred in zip codes with a population greater than 50% Black. These disparities persist even when controlling for differences in income and the number of unoccupied homes in Detroit.

22. Defendant Detroit’s policy of disconnecting water service to customers for non-payment causes Black residents to disproportionately experience water shutoffs, forcing them to live without water service in their homes.

23. Through its water shutoff policy, Defendant Detroit discriminates against Black residents in violation of the FHA and ELCRA. [MORE]