Saying the Chicago city residents who brought the legal action can’t prove they were injured by lead in their water and arguing the lawsuit comes directly against the city’s rights under the law to set its own governmental policy, Chicago city attorneys have asked the court to toss a class action demanding the court order the city to replace lead water pipes leading to homes throughout the city and pay for medical monitoring for a large number of Chicagoans who may have been exposed to lead now and in the past.
The city’s dismissal request came in a May 12 filing in response to a lawsuit brought in February by three city residents, ostensibly on behalf of a plaintiffs class that could include many thousands of other Chicago city residents.
That lawsuit, which itself came in the wake of the still unfolding waterborne lead contamination scandal in Flint, Mich., alleged the city did not do enough to warn residents or protect them from the risk of lead contamination in their water supply in areas in which the city was working to replace lead water pipes leading into homes in the city.
Named plaintiffs in the action included Tatjana Blotkevic, of the 800 block of N. California Avenue in Humboldt Park, and Ilya Pesin and Yakov Yarmove, of the 6400-6500 blocks of N. Albany Avenue in the West Ridge neighborhood. They are represented in the action by attorneys with the firms of Hagens Berman Sobol Shapiro LLP, of Chicago, and the Freydin Law Firm, of Skokie.
The city has since 2008 worked on replacing lead water service lines in various parts of Chicago, to gradually reduce the large number of Chicago properties that receive drinking water at least partially through lead pipes.
To reduce the risk, the city has treated its water supply with chemicals to react with lead and create a coating in the pipes to prevent lead from contaminating the drinking water.
However, the residents’ suit alleged the technique can fail, particularly when the pipes are disturbed by construction activity, including city work to replace lead water lines. This can cause elevated levels of lead to enter the water stream into nearby homes, the complaint said, potentially weeks or even months after the work is completed.
The plaintiffs said the city did nothing about this problem, and should be ordered to replace all the lead water lines, and pay for testing to make sure residents aren’t being exposed to lead.
The city, however, said the “extensive and unprecedented” demands both fall short and go too far under the law.
The city said none of the plaintiffs can demonstrate they were ever actually exposed to elevated lead, or suffered harm from it. The city’s filings noted, for instance, the water service line into Blotkevic’s home is made of copper, not lead.
The lack of demonstrable injury alone should end the litigation, the city argued. But beyond that, the city said the lawsuit also trespasses on its sovereign rights under Illinois law to set policy, such as when and how to replace lead water mains, or “what warnings to provide and what to publicly state regarding potential risks of increased lead contamination.”
The city pointed to previous cases in which courts held cities cannot be held liable for, among other things, not notifying residents of the risk of flooding.
The city said, in the same way, “the City cannot be held liable for allegedly not warning City residents of increased lead contamination risks related to replacing water mains and sewers.”
“The City’s decisions to replace water mains and meters and determine the information it provides on post-replacement precautions are quintessential discretionary policy determinations for which the City is immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act,” the city’s filing said. “The facts here demonstrate the legislature’s wisdom in providing such immunity, as allowing lawsuits such as this one would obstruct the City’s ability to replace its aging water infrastructure and to protect the long-term health of the City and its residents.”
The city is represented in the action by staff attorneys in its Department of Law and by attorneys from the firm of Kirkland & Ellis, of Chicago.