For the record, in a case involving Mississippi’s capital city of Jackson, the 5th U.S. Circuit Court of Appeals ruled earlier this month that there exists no constitutional right to clean water.
The ruling came in Sterling v. City of Jackson, in which the plaintiffs alleged that Jackson city officials knowingly exposed residents to lead-contaminated drinking water and misrepresented the water’s safety for consumption. Safe and available water has been
an issue in Jackson for several years due to a plethora of problems, including aging and deteriorating infrastructure, the instability of Yazoo Clay soil, uncollected water fees and operational issues at the city’s water treatment plants.
The court held that the Constitution does not provide express protections against municipal water contamination or require municipal officials to provide truthful information during a public health crisis, arguing that “the Constitution does not provide redress
for every government wrongdoing.”
Jarring as it was for Jackson residents, the appellate court ruling seems to track with both history and the law. Federal statutes regulating water pollution have existed since the adoption of the rather anemic Federal Water Pollution Control Act of 1948. The
first major law Congress passed to protect water safety was weak because it left enforcement to the states.
But during the Nixon Administration, Congress took another stab at the issue by adopting the Clean Water Act of 1972. (Followed by the Safe Drinking Water Act, the nation’s primary law regulating drinking water.) Those statutes created the first federal framework
for regulating water pollution. The act also created and funded a nationwide wastewater treatment infrastructure.
More to the point, Congress amended the CWA in 1977, 1981, and 1987 to strengthen both the financing and the enforcement of water pollution regulation. Although Congress has provided statutory protections for well over half a century and the Supreme Court has
heard many cases over alleged violations of those statutes, the Supreme Court has not recognized any explicit environmental rights provision in the Constitution.
Because of that, several states have adopted constitutional provisions and statutes that go far beyond federal environmental protections. As a result, some state courts have been tougher on polluters than federal courts.
For the plaintiffs in this case, it’s significant to note that like the U.S. Constitution, the Mississippi Constitution also doesn’t have an explicit constitutional provision undergirding a claim of a state constitutional right to clean water. Massachusetts,
New York and Pennsylvania are states where their state constitutions provide clean water rights.
The Mississippi Legislature passed the Mississippi Safe Drinking Water Act of 1997, which contains this language: “An adequate supply of safe, pure drinking water is essential to the public health and welfare.”
Mississippi law, at least statutes adopted by the Mississippi Legislature, seems to suggest that the path to claim clean, safe water (at the state level) is through statutory entitlement, regulatory enforcement, and going to state court over state statutes
and regulations.
But constitutional law, whether at the federal or state level, doesn’t seem to carry much weight in that pursuit. Solutions to Jackson’s broader infrastructure problems still hinge on the cogent assessment of three-term former Jackson Mayor Harvey Johnson Jr.
Johnson, the city’s first Black chief executive, led Jackson to spend or obligate almost $200 million on water and sewer projects between 1997 and 2013 in an effort to forestall the current Jackson water crisis.
Years ago, Johnson wrote about his perceptions of why there’s an infrastructure crisis in the city: “The historic disparity in the provision of municipal services to local residents; A decreasing population and dwindling tax base; An increasing rate of poverty
among the water system user base; and Adverse intergovernmental policies that placed the burden of financing improvements on local government and ratepayers.”
State officials point to the current Jackson city government's lax efforts to collect water bills and note that other Mississippi cities support and maintain their water systems through local fee systems and bonds
For now, Jackson’s leaders have little choice but to absorb the 5th Circuit’s ruling and move forward.
Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.
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