The Circuit Court of Appeals for the Sixth Circuit has held that residents of Flint, Michigan, may pursue class claims against state actors in state court. Mays v. City of Flint, 47 E.L.R. 20112, No. 16-2484, (6th Cir., September 11, 2017).  In January 2016, several plaintiffs filed a class-action lawsuit in state court alleging they had been harmed since April 2014 by the toxic condition of the Flint water supply. In April 2016, defendants sought removal under 28 U.S.C. §1442, the federal-officer removal statute, and 28 U.S.C. §1441, which allows removal of state court actions that involve substantial federal questions. State officials from the Michigan Department of Environmental Quality (MDEQ) claimed they were being sued for actions they took while acting under the direction of EPA, which delegated primary enforcement authority to the MDEQ to implement the Safe Water Drinking Act in Michigan.

The Court disagreed, affirming remand to state court.  The Sixth Circuit held no federal question was presented on the face of the complaint, and simply complying with a regulation is insufficient, even if the regulatory schedule is highly detailed and the MDEQ’s activities are highly supervised and monitored.  Further, the Court found federal-officer removal was not warranted, even though the MDEQ had to periodically submit reports to the EPA detailing compliance with regulations that had been adopted into state law.  The Court held that compliance reporting, even if detailed, is insufficient by itself to warrant federal-officer removal.  The Court noted that even though the EPA had authority to intervene in the case, Michigan was governing itself when the alleged actions and inactions giving rise to plaintiffs’ claims occurred.