The Fifth Circuit ruled on Friday that the Constitution does not protect a right to clean water or to truthful information from public officials about contaminants in drinking water.
The en banc ruling means that Jackson, Mississippi officials are off the hook for causing lead to leach into the City’s drinking water.
The case, Sterling v. City of Jackson, arose when residents sued the City for acts and failures that caused lead to leach into the municipal drinking-water supply. The plaintiffs brought substantive due process claims and state-law claims against the City and its officials, including claims based on a fundamental right to bodily integrity.
The en banc court rejected the constitutional claims. According to the court, the plaintiffs’ claimed rights–the rights “to not be exposed to water that was contaminated as a result of the acts or omissions of public officials and to truthful information from public officials about the presence of contaminants in municipally supplied drinking water”–weren’t rooted in our nation’s history and tradition, and therefore didn’t constitute fundamental rights under substantive due process.
As to the clean-water claim, the court said that nothing in the Constitution requires the government to provide services, or to provide them competently: “The Constitution forbids municipalities from depriving individuals of life, liberty, and property without due process of law–it does not impose affirmative obligations on the City.” Moreover, the court said that it wouldn’t shoehorn a (new) right to clean water into an (existing) right to bodily integrity, because any interest in clean water is “wholly different from [recognized violations of bodily integrity like] forced surgery, involuntary medicating, and assault.”
The court acknowledged that the Sixth Circuit in Guertin v. Michigan held that plaintiffs in the Flint water-crisis case plausibly alleged that public officials violated their right to bodily integrity. But the Fifth Circuit disagreed with the Sixth Circuit’s reasoning: the Fifth Circuit said that the right to bodily integrity was too important to “weaken” it by including a new right to clean water.
As to the right-to-information claim, the court said that nothing in precedent or history establishes a right to receive accurate information from public officials.
The court went on to hold that even if the Constitution protected these claimed rights, the defendants would enjoy qualified immunity, because the rights weren’t clearly established at the time of the defendants’ conduct.
Judge Haynes, joined by Judges Stewart, Higginson, Douglas, and Ramirez, concurred in part and dissented in part. They argued that the plaintiffs plausibly pleaded their claims, and that they were entitled to discovery. They also argued that the majority wrongly ignored the plaintiffs’ claim under a state-created danger theory–a theory adopted by ten other circuits.