En Banc Fifth Circuit Rejects Claims that Jackson, MS Water Crisis Violated Constitutional Rights

The Court rebuffs this effort to claims the Fourteenth Amendment protects positive rights.

Last Friday, the en banc U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a lawsuit filed by residents of Jackson, Mississippi, claiming that the city violated their constitutional rights by allowing the city's drinking water to become contaminated by lead and by falsely claiming the water remained safe to drink. By a 10-5 vote, the full court concluded in Sterling v. City of Jackson that there are no clearly established rights to clean drinking water or to accurate information from public officials under the Fourteenth Amendment.

Judge Englehardt wrote for the majority. His opinion begins:

For decades, the Supreme Court has cautioned lower courts to "exercise the utmost care whenever we are asked to break new ground" in the realm of substantive due process. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 240 (2022) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Yet Plaintiffs, residential subscribers to the municipally supplied water service in Jackson, Mississippi, seek recognition of two new constitutional rights lacking any foundation in the history and tradition of our Nation—the right to be free from exposure to contaminated water and the right to accurate information from public officials. The Due Process Clause cannot, for the first time today, provide redress for Plaintiffs' alleged injuries, absent any historical basis for doing so.

Because Plaintiffs' injuries are not constitutionally cognizable, the district court's dismissal of their 42 U.S.C. § 1983 claims is AFFIRMED. The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs' injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson's drinking water quality through regulations, investigations, and compliance plans. These already-established-andundertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.

The court readily acknowledged that this decision is in conflict with cases from the U.S. Court of Appeals for the Sixth Circuit, such as Guertin v. Michigan (6th Cir. 2019), but was unpersuaded by the Sixth Circuit panel's analysis in that case. From FN 5 of Sterling:

In Guertin v. Michigan, 912 F.3d 907, 920–21 (6th Cir. 2019), the Sixth Circuit held that plaintiffs plausibly alleged that public officials' actions during the Flint Water Crisis violated plaintiffs' right to bodily integrity. We are not bound, nor persuaded, by Guertin. The Sixth Circuit surveyed bodily-integrity precedent and found the right "indispensable," a "first among equals," with an "impressive constitutional pedigree." Guertin, 912 F.3d at 918–19 (internal quotation marks and citation omitted). We do not disagree that the right to bodily integrity is an important right. It is because the right to autonomy over one's person is so fundamental to our liberty that we are reluctant to weaken the right by applying it to conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted. Guertin does not persuade us that Defendants' conduct resulting in Plaintiffs' exposure to contaminated water implicates the right to bodily integrity.

The split between Sterling and Guertin (and another Sixth Circuit case, Mitchell v. City of Benton Harbor from 2025), would seem to create an opportunity for Supreme Court review. On the other hand, it is difficult to see the Supreme Court being any more sympathetic to the plaintiffs' claims here than was the Fifth Circuit.

Judge Haynes dissented, joined by four other judges, largely on the grounds that it is premature to dismiss the plaintiffs' claims. In this posture, Judge Haynes argued, the plaintiffs should be at least entitled to pursue discovery given the plausibility of their claims.