Why the ACLU of Michigan and others are still suing Detroit.

In December, Detroit Mayor Mike Duggan announced that the city will maintain a moratorium on water shutoffs for another two years. The moratorium was imposed last year after the COVID-19 pandemic broke out. The mayor also said his administration will be working on a “permanent water affordability solution at the state and federal level” over the next two years. 

Given that encouraging turn of events, it is understandable that some people might wonder why the ACLU of Michigan and others are pressing ahead with a class action lawsuit that seeks to end water shutoffs permanently and make water affordable for everyone.

In the lawsuit, it is alleged that the City of Detroit and city officials, along with the Governor have, with mass water shutoffs, created a public health emergency in Detroit. The lawsuit contends that these officials ignored well-established science that holds that disease spreads when people lack water.

The lawsuit also contends that the city’s shutoff policy is unconstitutional because it creates conditions that promote mass infection, and violates the fundamental right to bodily integrity. It is also alleged that the water shutoffs are racially discriminatory and violate the Fair Housing Act and other laws. The defendants deny all of it, and on February 3 they will try to convince a federal judge that the complaint is legally and factually deficient and it should be dismissed.

Why fight to keep the lawsuit alive if Mayor Mike Duggan and his administration are vowing to make things right by halting shutoffs for two years and pursuing an affordability plan without a court order? 

For one thing, there is no guarantee that, even if city officials are sincere, the promises being made now can be kept.  City officials have a long history of clouding the issue and shutting off the water in thousands of homes even after they have made repeated claims that they have adequate systems in place to help ensure that poor people have access to water.

The water shutoffs dramatically escalated when, to increase collections, Detroit began ramping up shutoffs as part of the fallout from bankruptcy proceedings that began in 2013. But people were told not to worry.

Failed Promises

In June 2014, facing mounting criticism and the harsh glare of an international spotlight as water was being cut off to hundreds of homes every week, Mayor Duggan, with much fanfare, unveiled a 10-point plan to address the crisis.

"It's taken a lot of effort to get to this point, but I truly think we're in a situation now where if you want to pay your bill we've made it easier, and if you're truly in need we're going to get you to the right place." Mr. Dugan said.  "I think for the great majority of people in this town the whole process will get a lot better." 

Included in those 10 points what the city described as an “affordable payment plan” intended to help people who’d fallen behind on their bills to get caught up. Critics quickly pointed out the massive flaw inherent in that plan: If people were already struggling to pay their regular water bill, how could they possibly come up with enough money to meet that obligation plus start paying down arrearages?

The critics were right.

Instead of getting the truly needy to the right place, however, Mr. Duggan’s vaunted plan resulted in 33,000 households losing access to water in 2014. Another 23,000 homes experienced the same fate the following year, according to Bridge Michigan, a well-respected online publication that has followed the issue closely for years. 

A new program was devised in 2015 as a fundamental part of the newly created Great Lakes Water Authority (GLWA), another consequence of Detroit’s bankruptcy. The new authority took control (through a lease agreement) of the vast regional system built by the Detroit Water and Sewerage Department. Under terms of the deal, the GLWA replaced Detroit as the wholesale provider of water to nearly 4 million people living in communities across southeast Michigan. Detroit became just another customer, buying its water from the GLWA just as other communities throughout the region. 

When the new authority was created, it was decided that GLWA would be required to set aside .5 percent of its revenues – $4.5 million at the time – to provide financial assistance to low-income households across the entire region through a newly created project dubbed the Water Residential Assistance Program (WRAP). 

New Programs, Same Results

Gary Brown, a former Detroit police officer and City Council member appointed by Mr. Duggan to head DWSD, gave a presentation in February 2016 touting WRAP as one of the most “robust” water affordability programs in the nation.  

Despite the hyperbole, WRAP isn’t really an affordability plan at all. Instead, it is an assistance program that is not designed to address the problems of those in chronic poverty. Assistance programs are intended for families who are usually able to afford to pay market rates for water, but who have encountered a temporary financial hardship. The assistance programs help these families get back on their feet, stabilize, and then resume payment of market rates for water. Such programs do nothing for the chronically poor because they were never able to pay market rates in the first place.

A true affordability plan had, in fact, been passed by the Detroit City Council more than a decade earlier. It tied rates to a household’s income – poor people would be able to pay a lower price for something they needed to survive. Unfortunately, though passed by Council, that plan was never implemented by DWSD. 

handout used during Mr. Brown’s presentation promised that “WRAP will be designed to help reduce its customer communities’ need to implement adverse billing and collection measures including service disconnections and lien placements.” 

That promise was made even though the GLWA’s own documents showed that the amount of money being set aside was woefully inadequate, stating: “Unfortunately, the scope and structure of these efforts pales incomparison to the endemic problems induced by persistent poverty in ourcommunities. 

WRAP launched in March 2016. Within five months, the program had run out of funds. 

“Detroiters attempting to apply for the Water Residential Assistance Programare being turned away and told to call back in October, in case the program receives extra money,” the Detroit Free Press reported in August. 

“… these assistance programs are not helpful for people who have real, long-term affordability problems,” a senior organizer of the nonprofit group Food & Water Watch said at the time. "These programs are going to continue to fail because it’s not really addressing the problem.” 

More than 27,550 homes had their water shutoff in 2016. 

Claims Contradicted

As reported by Bridge Michigan’s Joel Kurth, who has done consistently strong work on the issue, city officials for years have tried to mitigate the hardships created by shutoffs by claiming that “the vast majority of shut off customers have water running again within 48 hours when they are put on payment plans.” 

Mr. Kurth’s reporting contradicts that claim. In August 2019 he wrote: “City of Detroit recordsobtained by Bridge show that 7,310 of 11,801 homes disconnected for nonpayment since April remained without water as of Aug. 1.”  

The Free Press’ Nancy Kaffer found similar results when she reported on the issue in January 2020: As of Oct. 31, according toits own internal report, the water department hadturned off water to more than 25,000 accounts in 2019, and subsequently restored serviceto 13,721 of those customers. 

Clearly, the city’s claim that the vast majority of customers losing access to water have service restored within two days isn’t true. What’s sad is that the reporting only confirms the point activists have long been making: assistance and payment plans are doomed to fail. 

The more than 141,000 Detroit customers who have lost access to water since the shutoffs began ramping up in 2014 can attest to the truth of that. 

“WRAP is not only underfunded, it is inherently unsustainable and futile. Experience has shown us that most low-income DWSD customers have consistent affordability problems. A household that has fallen behind on its water and wastewater bills is highly likely to do so again and again,” observed the Michigan Welfare Rights Organization – one of the leaders of the fight to have an income-based rate structure implemented – in 2015. “Assistance-based models ignore systemic problems of poverty and limited incomes that lead to repeated shut off crises. Moreover, recursive and punitive payment agreements, like those developed by DWSD officials, are destined to be breached and will not meet the goals of the customers or water system.” 

More Hardship Looming

Mr. Duggan and Mr. Brown have previously maintained that they could not move the city to an income-based system because they are blocked by a state Supreme Court ruling court ruling in the case Bolt v. Lansing. However, neither city officials nor their attorneys have provided a meaningful legal analysis that justifies their conclusion. Other lawyers, including attorneys for the Detroit City Council, have analyzed the case carefully and concluded that it poses no obstacle whatsoever to an affordability plan.

“I think it has been used strategically as a convenient red herring, and it deserves no further serious consideration by anyone who is sincere about trying to resolve this issue,” said Mark Fancher, the ACLU of Michigan’s Racial Justice staff attorney and a member of the legal team suing to stop the shutoffs.

It is important to note that, although the ACLU of Michigan class action lawsuit targets Detroit, the issue of water insecurity isn’t limited to Michigan’s largest city. The Detroit Free Press reported in December 2020 that “more than 317,000 households throughout Michigan are estimated to be behind on their water bills and could faceshutoffs.” Thats according to an analysis by the Natural Resources Defense Council, People’s Water Board Coalition and other advocacy groups.

But Detroit, with its 675,000 residents, offers the opportunity to initiate much needed reform. A victory there would open the door for change across Michigan. 

Instead of creating an income-based rate structure, the Duggan administration and officials at the GLWA, to this point, have continued to tout the WRAP program, which was significantly expanded last year to help provide more assistance during the pandemic.  

“This expansion of WRAP will help us reach many more households in Detroit and the participating member communities who may be struggling to pay their water bills during the COVID-19 pandemic, and beyond,” said Mr. Brown, who is also a GLWA board member.  

It is the same sort of rhetoric we’ve been hearing for years. Given the history of failure, there is good reason to press on with the lawsuit. Without a court order in place, once their self-imposed moratorium ends city officials will be able to again start conducting massive shutoffs in an attempt to collect on mounting back bills accrued during this time by thousands of poor people.

A victory in court is one way to increase the likelihood that water in Detroit will finally be affordable to everyone, and that inhumane mass shutoffs will become nothing more than a shameful memory.