Judge Keith Ellison ruling on arsenic in drinking water

A federal judge in Texas, Keith Ellison, did the right thing with this case that was brought to him by a few of the fine civil rights lawyers who serve the under-privileged in the state of Texas.

Elderly and sick prisoners are kept in a special housing facility.  It lacks air conditioning.  In the Texas summers, that can be life-threatening, especially for the sick and elderly.  So the incarcerated are told to drink lots and lots of water.  Trouble is, their drinking water is contaminated with arsenic above the levels that EPA believes is safe.

Judge Ellison ordered the prison system to truck in clean drinking water.

Sounds pretty straightforward, right?

This is the report from Law 360, an environmental law daily list server:
“Texas Can’t Give Inmates Arsenic-Laden Water, Judge Rules

By Stan Parker
Law360, New York (June 23, 2016, 9:01 PM ET) — Texas must provide inmates at a geriatric and medical prison with drinking water that meets federal arsenic safety standards, a federal judge has ruled, granting a preliminary injunction to a certified class of prisoners suing the state over sweltering indoor temperatures they say violate their constitutional rights.

U.S. District Judge Keith Ellison issued the order Tuesday forcing the Texas Department of Criminal Justice to bear the burden of trucking in water that meets the U.S. Environmental Protection Agency’s standards for permissible arsenic levels.

“The increased risk of cancer, although minute, is significantly more troublesome than the prospect of reassigning or leasing a truck and reassigning or hiring an employee to drive it,” Judge Ellison wrote.

The order came as part of a lawsuit brought by inmates at the Wallace Pack Unit who said the dangerous — and sometimes deadly — indoor temperatures in the Texas prison system amount to cruel and unusual punishment, especially for elderly and ailing inmates.

To mitigate heat levels that frequently exceed 90 degrees, prison officials have encouraged inmates to drink “copious” amounts of water, up to two gallons per day on especially hot days. But the water currently provided in the prison hasn’t met the EPA’s standards for permissible arsenic levels since the requirement dropped from 50 parts per billion to 10 ppb in 2005, according to Judge Ellison’s order.

Judge Ellison also noted that although many U.S. citizens live in areas where their tap water exceeds the EPA’s safe standards, those free citizens have all been notified of the dangers and can choose other options for getting their drinking water. Incarcerated individuals do not have that choice, he wrote.

He said that the plaintiffs have shown a substantial likelihood of success on their claim of cruel and unusual punishment by showing that the prolonged exposure to heat, especially in light of the fact that the only mitigation measure in place was the provision of arsenic-laden drinking water, poses a serious risk of harm, and that the prison system is “is deliberately indifferent to that risk.”

Judge Ellison wrote that he reached the finding “reluctantly,” not wanting to intrude on the state’s management of its prison system, but noted that the prison system hasn’t given inmates any effective redress in the 10 years since the water has been out of compliance with the arsenic standard.

“Moreover, the funds expended by the State in litigating this case likely would have been sufficient to have afforded such redress,” he added.

Jeff Edwards, an attorney for the inmates, told Law360 on Thursday that he was happy with the safe drinking water order, and added that Judge Ellison’s findings of fact and conclusions of law signaled support for the plaintiffs’ primary demand for heat relief.

“Finally, these inmates might get some protections from this heat, and at a minimum they will get safe drinking water,” he said.

A representative for the Texas Attorney General’s office did not respond Thursday to a request for comment.

The plaintiffs are represented by Jeff Edwards, Scott Medlock, David James and Michael Singley of Edwards Law, Jeremy Doyle, Nathan Smith and Andrew “Drew” Pennebaker of The Singley Law Firm PLLC, Abigail Frank, Wayne Krause Yang and James C. Harrington of Reynolds Frizzell LLP and Wallis Nader of the Texas Civil Rights Project-Houston and The Texas Civil Rights Project.

The Texas Department of Criminal Justice is represented by the Texas Attorney General’s Office.

The case is Bailey et al v. Livingston et al, case number 4:14-cv-01698, in U.S. District Court for the Southern District of Texas.”

This article states that the case name is Bailey et al v. Livingston but I believe that it is Cole et al v. Livingston.

The facts that underlie the lawsuit sound like they come from several centuries ago.  That’s why the matter-of-factness hits me so hard, I think.