Court finds no constitutional right to contaminant-free municipal drinking water
Key Highlights
- The court dismissed claims alleging violations of substantive due process rights related to water safety and truthful communication by city officials.
- It emphasized that the Constitution does not recognize a fundamental right to safe drinking water or accurate information from public officials.
- City officials were granted qualified immunity due to lack of controlling legal precedent establishing such rights.
A full federal appeals court has upheld the dismissal of constitutional claims brought by Jackson, Mississippi, residents who alleged city officials exposed them to lead-contaminated drinking water and misled the public about its safety.
In a Sept. 4 en banc decision, the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court's dismissal of claims brought under Section 1983 against the City of Jackson and several current and former city officials. The plaintiffs had sought to establish that the alleged exposure to contaminated drinking water and inaccurate statements about water quality violated their substantive due process rights under the Fourteenth Amendment.
The majority concluded that the Constitution does not recognize a fundamental right to be free from exposure to contaminated municipally supplied water or a constitutional right to receive accurate information from public officials about contaminants in drinking water.
Plaintiffs alleged that Jackson's water system produced water containing lead, E. coli and other bacteria, experienced shutdowns and prompted numerous boil-water notices. They further alleged that city actions and failures allowed lead to leach into drinking water and that officials told residents the water was safe despite allegedly knowing otherwise.
The court acknowledged the seriousness of the allegations but said substantive due process protections are limited to rights deeply rooted in the nation's history and tradition. It found no such historical basis for the rights asserted by the plaintiffs and said the Constitution generally does not impose an affirmative duty on municipalities to provide public services, including water treatment, at a particular level of competence.
The ruling also rejected the plaintiffs' argument that their alleged physical injuries from drinking contaminated water established a violation of their constitutional right to bodily integrity. The majority distinguished the case from previous bodily-integrity cases involving direct government actions such as forced medical procedures, involuntary medication and physical assault.
In addition, the court said city officials were entitled to qualified immunity because the plaintiffs could not identify controlling precedent or a broad consensus of cases clearly establishing a constitutional right to lead-free drinking water or truthful information from public officials about drinking water contamination.
The decision reversed the direction of an earlier Fifth Circuit panel ruling, which had found that the plaintiffs adequately alleged a violation of their right to bodily integrity. That panel decision was later vacated when the full Fifth Circuit agreed to rehear the case.
The ruling drew a dissent from several judges, who argued that the plaintiffs had plausibly alleged violations of their rights to bodily integrity and protection from state-created dangers. The dissent compared the allegations to the Flint water crisis and argued that the case should have been allowed to proceed to discovery.
While rejecting the federal constitutional claims, the majority emphasized that other avenues remain available to address drinking water contamination, including tort claims and enforcement under federal and state environmental laws. The court noted that state and federal agencies have taken actions in recent years to address Jackson's water quality challenges.
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About the Author
Alex CossinAlex Cossin
Associate Editor
Alex Cossin is the associate editor for Waterworld Magazine, Wastewater Digest and Stormwater Solutions, which compose the Endeavor Business Media Water Group. Cossin graduated from Kent State University in 2018 with a Bachelor of Science in Journalism. Cossin can be reached at [email protected].



