In re Flint Water Cases, 482 F. Supp. 3d 601 - Dist. Court, ED Michigan 2020

… here may be characterized as either a facial or factual attack, because of the interdependent nature of the factual and jurisdictional elements of an FTCA claim, the Court will analyze the motion to dismiss as a facial attack because the thrust of the United States's argument is that it has not waived sovereign immunity under the FTCA, and the facts are largely undisputed.

The United States brings a facial attack on the sufficiency of Plaintiffs' complaint by arguing that under the facts set forth above, there would be no liability under state law—a necessary prerequisite to bring a claim under the Federal Tort Claims Act

Notwithstanding, a violator may still face damages liability when its actions are "severely out of compliance."

However, this holding may be limited to extreme situations of noncompliance during a "public health crisis."

The Flint residents wanted to hold the United States accountable for the negligent actions and inactions of the EPA

In In re Flint Water Cases, residents brought an action under the Federal Tort Claims Act against EPA for negligence in its response to Flint, and EPA could not use the Federal Tort Claims Act's exception for discretionary conduct to shield it from its failure to enforce the SDWA.

This Court denied that motion, holding that the EPA's conduct (1) would permit a finding of liability under Michigan law,(2) was not protected by the misrepresentation exception, and (3) was not protected by the discretionary function exception.