In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute. Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017). The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”
Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply. The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court. The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws. Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind. The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.
The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state. The state officers were not contractors, employees, or agents of federal officers. The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship. EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute. The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection.
The court kept the floodgates closed. It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.
So, states’ rights advocates, take heart. Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own. Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.