Amelia Lembeck (she/her), Class of ’24

In the summer of 2022, the city of Jackson, Mississippi experienced a drinking water crisis. The water shortage was the latest in a long series of issues with Jackson’s public drinking water system, topping off years of intermittent boil water notices, failed Environmental Protection Agency (“EPA”) inspections, and findings of lead.¹ In 2022, damage to lime-feed pumps at O.B. Curtis Water Treatment Plant made plant-wide failure and increased the likelihood of lead leeching from pipes into drinking water.² By July, the MSDH issued a boil water notice because of cloudiness in water samples.³ When heavy rains hit Jackson in August, engorging the Pearl River and the Ross R. Barrett Reservoir, MSDH officials declared a public drinking water emergency, which affected over 153,000 Jackson residents,⁴ leaving most of the homes and businesses in the city under a boil-water notice for forty-five days.⁵ In the months since, Jackson residents have looked to hold their city and state officials accountable. 

Under the Safe Drinking Water Act (“SDWA”), a person may commence a civil lawsuit against any person, government instrumentality, or agency whom they allege to have violated the Act.⁶ The SDWA only allows residents to seek injunctive relief under certain circumstances. Consequently, plaintiffs seeking relief from government actors must rely on 42 U.S.C. § 1983, under which an individual or class of plaintiffs may sue their government for violating a clearly established right. Here, their rights to bodily integrity and protection from state created danger. There are some statutes that preclude § 1983 claims. In Middlesex County Sewerage Authority v. National Sea Clammers Association, the Supreme Court found that there is no implied right to private remedies⁷ under certain pollution statutes that, like the SDWA, do not allow a plaintiff to seek private remedies. However, the Court later distinguished § 1983 claims alleging constitutional violations from those alleging statutory violations in Fitzgerald v. Barnstable School Committee.⁸ Fitzgerald counsels that a court must be mindful to not lightly conclude the preclusion of constitutional remedies.⁹

Six years ago, the residents of Flint, Michigan experienced a water crisis that received widespread national attention and led to many lawsuits after the government switched their water source from Lake Huron to the Flint River. In one of these lawsuits, Boler v. Earley, the Sixth Circuit held that the remedial scheme in the SDWA did not preclude Flint residents’ § 1983 claims.¹⁰ They held that the plaintiffs did not invoke § 1983 to enforce the substantive federal law found in the SDWA, but rather to recover for violations of various constitutional provisions, which the court was required to review more carefully under Fitzgerald.¹¹ Following Boler, Flint residents were able to proceed with claims that government officials violated their substantive due process right to bodily integrity in Guertin v. State. The Sixth Circuit determined that the Flint residents’ right to bodily integrity was clearly established and that city and state officials’ roles in the Flint Water Crisis amounted to deliberate indifference, denying dismissal on the grounds of qualified immunity.¹² Noting there is no fundamental right to water service, nor to a contaminant-free, healthy environment, the court found that government officials actively subjected Flint residents to foreign substances under false pretenses, a clear example of a violation of the right to bodily integrity, calling the right “first among equals”.¹³ 

Jackson citizens filed a federal class action lawsuit seeking injunctive relief and monetary damages against various government and private engineering defendants in September 2022.¹⁴ The complaint highlights the years of inaction by Jackson officials.¹⁵ Complainants note that, especially following a separate water crisis in winter 2021, the City was “acutely aware of problems that would later contribute to the 2022 failure and potential solutions to them.”¹⁶ The complaint also details many ways in which officials’ actions exacerbated the existing issues, including allegedly false statements by the former mayor, the former public works director, and officials who spoke at their direction; the firing of a whistleblower;¹⁷ and that boil water notices led to a higher concentration of toxic lead in the drinking water.¹⁸ Plaintiffs state six claims for relief, including two claims against government actors under § 1983.¹⁹

A Mississippi court determination of the § 1983 class action lawsuit may differ from those in Michigan in two ways. First, the courts may reach different conclusions as to whether the SDWA precludes § 1983 claims. So far, there have been no cases in the Fifth Circuit nor in Mississippi district courts that have looked at directly at this issue or the preclusion of Due Process claims by any environmental statutes for that matter, and none that have differentiated between the preclusion of statutory and constitutional violations under Fitzgerald. With little subsequent federal case law on the SDWA’s ability to preclude remedial action under § 1983, it is difficult to know if federal courts in Mississippi will find for the plaintiffs as the Sixth Circuit did in Boler.²⁰ 

Second, the decisions may differ because harmful government action created the Flint crisis, while harmful government inaction created the Jackson crisis, which may impact officials’ entitlement to qualified immunity. A federal court hearing Sterling might find differently than the Sixth Circuit in Guertin in assessing the government’s entitlement to qualified immunity from a Substantive Due Process claim. The Fifth Circuit could argue that negligent behavior does not generally violate citizens’ substantive due process rights as opposed to intentional or reckless efforts.²¹ The Sterling complaint accounts for this discrepancy by highlighting the actions government officials took that exacerbated problems, and by emphasizing similarities between the city and the defendants in Guertin which led the court to find deliberate indifference. 

Recent federal actions may shed light on other potential remedial pathways for Jackson residents.  82.5 percent of Jackson citizens are Black, and over 24 percent are living in poverty.²² Through their recently launched Office of Environmental Justice and External Civil Rights,²³ the EPA has opened a federal civil rights investigation into whether the Mississippi Department of Environmental Quality and the Mississippi State Department of Health discriminated, by intent or effect, against the majority Black population of Jackson in funding water infrastructure and treatment programs.²⁴ Depending on their findings, the EPA could refer the matter to the Department of Justice (DOJ), or withhold future funding to the state.²⁵  

Because the Safe Drinking Water Act only permits injunctive relief, the citizens of Jackson, Mississippi, like the citizens of Flint, Michigan before them, must convince a court their state government violated their constitutional right to bodily integrity under 42 U.S.C. § 1983. Unlike the Flint plaintiffs, Jackson residents must prove that years of neglect, as opposed to direct action, violated such a right. However, initiatives by the EPA may indicate other avenues by which Jackson residents could see justice.

1.  Rick Rojas, Mississippi’s Capital Loses Water as a Troubled System Faces a Fresh Crisis, N.Y. Times, (Aug. 30, 2022), https://www.nytimes.com/2022/08/30/us/mississippi-jackson-water.html. ↩︎
2. Amir Vera, The Water Crisis in Jackson, Mississippi Has Gotten So Bad, The City Temporarily Ran Out of Bottled Water to Give to Residents, CNN, (Aug. 31, 2022), https://www.cnn.com/2022/08/30/us/jackson-water-system-failing-tuesday/index.html. ↩︎
3. See Rojas, supra note 1.   ↩︎
4.  Id.
   ↩︎
5. Ross Riley, Justice Department to Appoint Third Party Manager to Handle Jackson Water Crisis, Clarion Ledger, (Nov. 29, 2022 4:21 PM), https://www.clarionledger.com/story/news/2022/11/29/jackson-ms-water-crisis-update-justice-department-appointing-third-party/69686323007/. ↩︎
6.  42 U.S.C. § 300j-8(a)(1). ↩︎
7.  453 U.S. 1, 11 (1981). ↩︎
8. 555 U.S. 246, 246 (2009) (holding that Title IX did not preclude a § 1983 action alleging unconstitutional gender discrimination in schools).   ↩︎
9.  Id. ↩︎
10. 865 F.3d 391, 396-97 (6th Cir. 2017). 
    ↩︎
11. Id. at 403.
    ↩︎
12.  See Guertin v. State (Guertin I), 912 F.3d 907, 926 (6th Cir. 2019). ↩︎
13. Id. at 918-21. In fact, the court compared the government’s conduct to a government experiment in which the University of Cincinnati subjected cancer patients to extraordinarily high doses of radiation, noting “[i]n both instances, individuals engaged in voluntary actions that they believed would sustain life, and instead received substances detrimental to their health. In both instances, government officials engaged in conduct designed to deceive the scope of the bodily invasion.” ↩︎
14.  Complaint at 1, Sterling et al v. The City of Jackson, Mississippi, No. 3:22-cv-531-KHJ-MTP (filed Sept. 16, 2022), https://www.classaction.org/media/sterling-et-al-v-the-city-of-jackson-mississippi-et-al.pdf. ↩︎
15. Id. at 27. ↩︎
16. Id. at 55. In February 2021, a winter storm caused a boil water advisory for thirty days, affecting 43,000 surface water connections and 16,000 well connections. ↩︎
17. Id. at 36-39. ↩︎
18. Id. at 44-45. ↩︎
19.  Id. at 81-83. 
    ↩︎
20. 865 F.3d at 407. ↩︎
21.  See Guertin v. Michigan (Guertin II), 924 F.3d 309, 311 (Sutton, J., concurring) (6th Cir. 2019). In his concurring opinion for a dismissal for a petition to rehear Guertin en banc, Judge Sutton of the Sixth Circuit highlighted features of the case that “warrant[ed] a tone of caution”. He distinguished negligent conduct, which “does not generally violate citizens’ substantive due process rights” from “an intentional or reckless effort to poison Flint’s water supply.” ↩︎
22. Complaint at 13, Sterling, No. 3:22-cv-531-KHJ-MT. ↩︎
23. See Environmental Protection Agency Press Office, EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights, (September 24, 2022), https://www.epa.gov/newsreleases/epa-launches-new-national-office-dedicated-advancing-environmental-justice-and-civil. ↩︎
24. Annie Snider, EPA Opens Civil Right Probe of Mississippi After Jackson Water Crisis, Politico, (Oct. 20, 2022 6:33 PM), https://www.politico.com/news/2022/10/20/epa-civil-rights-mississippi-naacp-00062820; see also Press Release, Governor Tate Reeves, Governor Tate Reeves Statement on Jackson Water Crisis, (October 28, 2022), https://mailchi.mp/f16f7aa34c27/governor-tate-reeves-jackson-water-emergency. ↩︎
25.  Id. ↩︎