The United States Constitution does not guarantee a right to clean drinking water, or a right to accurate information from public officials, a divided federal appeals court ruled on September 4. Sitting en banc, the US Court of Appeals for the Fifth Circuit decided Sterling v. City of Jackson by a vote of 10-5, affirming the dismissal of a lawsuit brought by residents of Jackson, Mississippi over lead in their tap water.
The plaintiffs alleged that city officials knowingly allowed lead contamination in the water system, continued to deliver that water to homes, and told residents it was safe to drink. The court did not decide whether those allegations are true. It held that even if they are, they do not describe a violation of a right the Constitution protects.
The reasoning: history sets the boundary
Writing for the majority, Judge Kurt Engelhardt grounded the decision in the substantive due process framework the Supreme Court has applied for decades. Under that framework, the Fourteenth Amendment’s due process clause protects unenumerated rights only where they are deeply rooted in the nation’s history and tradition. The majority found no historical basis for treating access to uncontaminated municipal water, or truthful statements from officials about it, as rights of that kind.
The logic is familiar in constitutional litigation and unforgiving in its application: the question is not whether an interest is important, but whether it has the specific historical pedigree the doctrine demands. Municipal water systems are a relatively modern institution, and the majority declined to read a guarantee about their output into a clause ratified in 1868.
The dissent: Flint by another name
Judge Catharina Haynes, joined by four colleagues, concurred in part and dissented in part. Her objection was as much procedural as substantive. At the motion-to-dismiss stage, courts are required to accept a plaintiff’s well-pleaded factual allegations as true – and the allegations here, she wrote, mirror the Flint water crisis, one of the worst public health crises in recent American history.
On that reading, the residents had pleaded enough to move into discovery, where the facts about what officials knew and when could actually be established. Dismissing the case at the threshold, the dissent argued, resolved against the plaintiffs the very questions that discovery exists to answer.
What the ruling leaves standing
The decision is narrower than the headline suggests, and the distinction matters for residents of any city with aging pipes:
- Federal statutes are untouched. The Safe Drinking Water Act and its lead and copper rules still bind utilities, and the EPA still enforces them.
- State law is untouched. Negligence, nuisance and state-law claims against a municipality proceed under different standards than a constitutional due process claim.
- State constitutions are untouched. Several states recognize environmental or water rights their federal counterpart does not.
What the ruling forecloses, within the Fifth Circuit’s territory of Texas, Louisiana and Mississippi, is the specific route these plaintiffs took: suing officials directly under the federal Constitution for delivering contaminated water and misrepresenting its safety.
Why that route mattered
Residents reach for constitutional claims when the ordinary channels have failed them. Regulatory enforcement depends on an agency choosing to act. State-law claims against municipalities run into immunity doctrines and damage caps. A due process claim, by contrast, targets the officials themselves and does not require the state to have consented to be sued.
Jackson’s water system has been in crisis for years, through boil-water notices, a federally supervised intervention and repeated failures of treatment infrastructure serving a majority-Black city of roughly 150,000. For plaintiffs in that position, the constitutional claim was not a first choice but a remaining one.
What comes next
An en banc decision can be appealed only to the Supreme Court, and the split – 10-5, with a dissent invoking Flint – is the kind of division that petitions are built around. Whether the justices take it up is another question; the Court has been reluctant to expand substantive due process, and the majority opinion is written squarely within the framework the Court itself has prescribed.
For now, the ruling stands as a marker of where federal constitutional protection ends. Contaminated municipal water remains a matter for statutes, agencies and state courts. It is not, in the Fifth Circuit, a matter for the Fourteenth Amendment.
