Is there a Constitutional Right to Safe Drinking Water?
Fresh out of graduate school with a Masters degree in water and wastewater engineering, I went to work for the City of Flint. On rare occasions, I was asked to perform water quality testing at the City’s Water Plant. Yep, that one. Back then, the water plant served as an emergency backup and any treated water was returned back to the Flint River. I enjoyed my visits to the water plant. They were educational and left me with a true appreciation of what it takes to produce safe drinking water.
Unfortunately, missteps by those responsible for operating the water plant caused the delivery of unsafe drinking water to the citizens of Flint. Those missteps have opened the floodgates for legal actions. The court in Concerned Pastors et al. v Khouri commented that as of May of this year, 52 separate actions arising from the Flint water crisis were pending in federal district court. While appearing straight forward, the legal process of assigning blame for this crisis will be full of twists and sharp turns.
In Boler et al. v Early et al., the plaintiffs filed suit under §1983 of the Civil Rights Act claiming the City violated their constitutional rights by providing contaminated drinking water. Several courts had previously held that certain environmental statutes preclude such suits. The court in Mattoon v City of Pittsfield extended those holdings to the Safe Drinking Water Act (“SDWA”). In the eyes of the Mattoon court, the provisions of the SDWA evinced a clear congressional intent to regulate public drinking water to the degree that no relief was available for alleged depravations of constitutional rights under §1983.
While the Boler plaintiffs asserted claims arising from the delivery of tainted drinking water, they did not assert any claim under the SDWA. The Plaintiffs claimed they did not need to as their claims were based solely on the violation of their constitutional rights. The court disagreed. In its eyes, the plaintiffs’ case arose solely from the delivery of tainted drinking water. Labeling as a violation of constitutional rights doesn’t change the substance of those claims [i.e. if it looks like a duck…]. The court concluded that plaintiffs had no independent right to claim depravation of a constitutional right to safe drinking water. The court believed the SDWA was the plaintiffs’ sole remedy, and because they had not asserted any claim under the SDWA, the court dismissed the plaintiffs’ action.