No Constitutional Right to Clean Drinking Water & TPS for Salvadorans

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1:29This is Bloomberg Law with June Grosso from Bloomberg Radio. In a 10 to 5 decision, the full Fifth Circuit Court of Appeals ruled that the U.S. Constitution doesn't guarantee the right to clean drinking water, rejecting a lawsuit by residents of Jackson, in Mississippi over the city's contaminated water system. The residents claimed that officials deliberately allowed lead to contaminate the drinking water, harming those who drank it, and violating their constitutional right to bodily integrity under the 14th Amendment's due process clause. The majority was composed of all Republican appointees, and the opinion by Judge Kurt Engelhardt, a Trump appointee, said that while the deprivation of clean water was grievous, it did not infringe upon any deeply rooted constitutional right.

2:26Joining me is environmental lawyer Jennifer Novak. Jennifer, tell us about the underlying dispute here. In the Sterling case, the city of Jackson, Mississippi, was providing drinking water to its citizens. And by 2013, knew they had a real problem with the quality of water and the combination of aging infrastructure using lead pipes, along with a high acidity level from where they were taking the water meant that instead of just passing through the pipes, the water was picking up lead along the way. And by the time 2013 rolled around, the city was well aware that the levels of lead were at least two times too high for public health and safety.

3:12And yet, it didn't tell the public that there was a problem. It continued to serve them the same water. And when questioned about the water quality, the city lied effectively or made misstatements saying that the water was safe. So the citizens continued to drink it. And what ended up happening is once this was discovered, a number of citizens brought a lawsuit against city officials, citing our federal civil rights laws. Their 14th Amendment right to life and liberty and property had been violated because of these two different actions by the city officials. This was a decision by the full Fifth Circuit en banc.

3:54Explain why the majority found that the lawsuit by the Jackson residents alleged violations of due process rights that were not granted by the Constitution. I mean, if we look at the literal text of the Constitution itself, obviously there is no right to clean water. But both the Fifth Amendment at the federal level and the Fourteenth Amendment at the state level have been read to mean that we do have certain levels of bodily autonomy and integrity, and that a state cannot, for example, allow an officer to assault you. They can't force you to have a surgery if you don't want it. And so it's along the lines of this bodily integrity that the plaintiffs were saying they had been violated because they were led to believe they could ingest this water safely, and yet it was not safe to do so.

4:48And presumably that meant they weren't really consenting to drink this contaminated water. And that was the equivalent of forcing them to take a medicine or ingest a poison or something along those lines. And do you think that sort of stretches constitutional rights? The court here looked for the history and tradition, and they say there's no historical tradition or Supreme Court precedent on this. Right. So there is a conflict. Most courts in the United States have not addressed this exact same situation. But we do have the Sixth Circuit, which heard all the Flint, Michigan cases on the Sixth Circuit came out differently saying, no, we think that the government did have a requirement to tell you the truth and you have the right to at least discover the true facts before we shut you down.

5:37Here in the Fifth Circuit, what they really held on to is perhaps not unsurprising given the Dobbs decision by the Supreme Court, which is a look at history. And if we don't see that in history, courts were ruling a certain way, then we're not going to be the first court to do so and saying, look, you have no right to government services. You don't even have a right to having the government give you services well. So you've been harmed. We recognize that we feel bad for you. But that doesn't make it a constitutional right. And you need to pursue other remedies. That's really where the Fifth Circuit came out.

6:15And it does create a bit of an interesting situation. If you're a prisoner, you can't be forced to ingest something that you don't want to. And yet, if you're one of many people living in a city who presumably think you are drinking clean water and wouldn't drink it if you knew it was going to be harmful, perhaps you don't have that same right, even though it's the same constitution that we're talking about. So there is a bit of a contradiction as far as what the courts are finding, how they're applying those rights. And again, there's a tendency within the courts right now to say, we don't want to extend the Constitution to create new rights.

6:56We're going to interpret it more as a check on government power and just talk about what the government can't do to you. In the dissent was a George W. Bush appointee and the four liberal members of the court. Is this a conservative liberal issue or split? It can be. What the dissenters noted was that this is a little bit different from saying that you have a right to have the state or a municipality give you clean water. This is a situation where the city has affirmatively taken on the obligation to serve its citizens drinking water. And we're not just talking about a situation where maybe they were incompetent, but once they knew, they still failed to act in the citizen's best interest.

7:45So the minority judges felt that this argument of there being a state-created danger was one worth looking at, and not necessarily that the plaintiffs would win, but that they had the right to pursue this a little further to see if maybe there was some traction there. Maybe they would uncover something that would allow them to keep going. The dissenting judge, Judge Katharina Haynes, a George W. Bush appointee, said that other courts have addressed that theory of state-created danger. And the Fifth Circuit stands practically alone in its decades-long fence-sitting, declining to either adopt or definitively rule out the state-created danger doctrine.

8:30So is there a split in the circuits on that or on this whole issue so that it might go to the Supreme Court? So two different issues. One is that because we have the Sixth Circuit line of cases that are exactly opposite of what the Fifth Circuit found, on the primary issue, we definitely have a split of authority. And there is enough case law from other circuits. For example, in the Second Circuit, after 9-11, the EPA was found to have mischaracterized, misrepresented air quality, and the courts did not allow those lawsuits to go forward. So it's more aligned with the Fifth Circuit. So just on that alone, right, it could be something that the United States Supreme Court would want to take up because there is now a split amongst the districts.

9:18on this other issue of the state creative danger. Yes, it was pointed out by the dissent that almost all the other circuits have ruled in a way that is different than what the Fifth Circuit has done here. That also then sets up a different type of split on that issue alone. The question is whether if you are the Jackson City plaintiffs, that's where you want to go, as opposed to trying a different tact. Yeah, what the majority suggested was that plaintiffs pursue tort claims, elect officials who will better manage the water system, and petition representatives for other solutions. I saw that, and one of them is always, well, you could elect somebody better.

10:01They do note that if you want damages, then tort claims are your only avenue, and you can give it a shot. That doesn't mean it's going to be easy. It doesn't mean you're going to get everything that you believe you are entitled to. And they say coupled it also with you can work within the system. Perhaps your local officials will create some sort of fund or system of redress. And while the court doesn't get that specific, I think that's what they were alluding to, that there could be some reparations at that level, in addition to electing better officials who will pay better attention to you, won't lie to you, etc.

10:39etc. I'll note that if the issue is fixing the problem, you do have federal laws like the Clean Water Act, the Safe Drinking Water Act, but those are to fix the problem and maybe penalize the actors that doesn't give you money for the damages that you may have suffered. What's your take on whether or not the Constitution guarantees this right to safe water? I find it a little hard to square some of the cases where we have said, okay, that is a bodily integrity situation, but this one is not. And I don't know if at the end of the day, it becomes a constitutional question so much as a real fear.

11:22And maybe the best way I could put it is a no good deed going unpunished. If you're a city and you're providing drinking water or municipal waste services or something to the community to be helpful, you know, because that's what people think government should do, then you really might be opening yourself up to a whole slew of lawsuits and complaints over everything you might do wrong, every bad decision you make. So to that extent, I understand from a policy standpoint, we don't want this to rise to the level of a constitutional problem. And I think my real problem is when we have those contradictory interpretations.

12:03Well, we'll say it's fine if you're a prisoner being force fed something or being forced into a surgery. But if you're one of thousands, if not millions of people consuming lead in your water, oops, you know, that's where I come out with this. I'm not certain. And I'm going to say that we automatically have a right in the Constitution to everything. But I probably do trend more toward looking at this as it's a little bit of a catch-22, right? We're going to say that historically speaking, we didn't recognize this as a right. Therefore, we won't now. I think our expectations of what the government is and its role and just our society have changed.

12:45And I'm not going to hew to the exact words of the Constitution and say that that's the only thing it could ever mean. People didn't have municipal drinking water at the time that the Constitution was written. They were primarily relying on well water and other things. And we have drastically changed where we are as a society. And that's the constant problem with the Supreme Court's history and tradition test. Now, other states, including California and Virginia, have protected access to safe water. So does that sort of tell you that officials in those states think that it's not in the Constitution and they need to pass laws to ensure safe water?

13:26It certainly does suggest that, or at least a billet in suspenders. If the federal government isn't going to protect us, we'll protect our own people. And I believe there are two states, Pennsylvania and Montana, that have written something similar into their state constitutions, whereas states like California and many others passed laws to that effect. I think in this case of many states, they simply say you have a right to a healthful environment. I think California's law goes so far as to say you have a right to clean water. And certainly even in a state like California, we have both rural and municipal users who can't turn on the tap and simply drink the water from it.

14:08The majority also found that you don't have the right to have officials tell you the truth. I mean, is that basically what they said? That's what they said. The Sterling Court, the Fifth Circuit said, of course, we want our public officials to be truthful and honest with us. But we just don't think that rises to the level of a constitutional right. And I agree with them. Again, it's a slippery slope if every not entirely truthful press release that a government issues suddenly becomes, my constitutional right has been violated in some way. I do think at some point in time, you can probably go down that slope and find situations where that might rise to that type of infringement.

14:54But for the most part, I think it also has the danger of confusing situations where the government is acting on the best information it has at the time, learns something else and has to change direction or change opinion, change a policy. And at what point in time do we call that misrepresentation versus that's just the scientific process at work? The Fifth Circuit is the most conservative circuit in the country, and it often has decisions that are outliers. So how important is this particular decision we've been talking about? I would call it important, but I did make the comment earlier that I'm not certain if I was the Jackson plaintiffs, if I would try to take this to the Supreme Court.

15:39The Fifth Circuit is the circuit that resides over Texas, Louisiana, Mississippi. So really small part of the country, already conservative leaning in its courts. It could be seen as a standalone. I know it got the headlines, everyone talking about no constitutional right to clean water, which I think offends most people. I think we believe that we have the right to not be poisoned by our public drinking water or to at least have an honest assessment of what's in it. We've had other situations more recently where we're now testing, for example, microplastics in drinking water. And that's a real shocker to people who assumed that we wouldn't have plastic in our drinking water.

16:22So I think that as we continue to see infrastructure fail, as we continue to see a lack of investment in infrastructure to address these kinds of problems, and as we continue to understand more and more about environmental issues within our cities and throughout the country, we will be looking for more opportunities to ensure that our government officials are doing the jobs we would like them to do. And as we know, the legislative process is not always the best one to make progress here. But perhaps at the local level, it will still work that way. Maybe even at the state level, it will still work that way.

17:03And people just need to be informed. And then they need to have a voice and use that voice as well. And courts cannot be the only place where we're making that happen. It's been great having you on, Jennifer. Thanks so much. That's environmental attorney Jennifer Novak. Coming up next, the Trump administration is once again asking the Supreme Court to get involved in an election-related issue. This is Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work.

17:45It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChatGPT.com by selecting Work Mode. Available on Plus and Pro plans. Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination-style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case.

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18:47It's the latest high-stakes election-related fight to reach the Supreme Court recently, with less than two months until the November midterms. A federal judge had blocked the administration from resuming expansion of an internal government database available to states to verify the citizenship of voters, saying the federal government had knowingly trampled on the privacy rights of American citizens in a manner that threatened the sacred right to vote. The D.C. Federal Appeals Court refused to lift the judge's block, and so the Justice Department is asking the Supreme Court to enter the fight over the Systematic Alien Verification Entitlements, or SAVE, database.

19:31Joining me is Leon Fresco, a partner in Holland and Knight and the former head of the Office of Immigration Litigation in the Obama administration. Leon, tell us about the fight over the SAVE database. This SAVE database is used by federal, state, and local agencies to verify immigration or citizenship status when people ask for benefits, licenses, and other programs. That's done by federal statute. And it's done as part of the Personal Work Responsibility Act, where the idea was that the Congress said certain people couldn't qualify for certain benefits. Now the issue is, can we take that database, which is supposed to tell the states whether someone can qualify for a driver's license or for Medicaid or Medicare or Social Security or something like that, and use it for voting?

20:20And so that's where Florida had sued the Biden administration in 2024 saying that the federal government wasn't providing this data that was needed for states to maintain accurate voter rolls. They were saying, if you're putting a mandate on us that we need to have accurate voter rolls, then you need to give us this database. And so when Trump returned to office, a collusive settlement was reached with Florida saying that, yes, you have access to this database. But the problem was there was a separate lawsuit that had already been filed before that settlement. with the League of Women Voters that said in the D.C.

21:00circuit and the D.C. district court, no, no, no, giving this database for voting purposes violates the Privacy Act that governs Social Security and other privacy information. And so that's the debate we're having here. In June, that D.C. federal judge you referenced found administration officials haphazardly combined and repurposed the private information of millions of Americans, including citizenship data that they knew to be unreliable. So is it that it's unreliable or that it's violating privacy rights? Well, there's two different issues. So the first issue is that it violates the privacy of people because this data was compiled not for this purpose.

21:42So the point is that whenever under the Privacy Act, the government uses your data for information that was not for the purpose that it was originally basically designated for, then it violates the Privacy Act. So yes, you can use it for Medicaid or Medicare or driver's licenses because the government has passed statutes that say that, but it never passed the statute that said that this database could be used for voting. So that's the privacy issue. Now, in terms of the accuracy issue, what people say, and there is some truth to this, is that when you naturalize to become a U.S. citizen, there's a lag there between the date of the naturalization of the person and the updating of that database.

22:29To the extent that there are errors in the saved database, it's there during that little interregnum period between when a person naturalizes and when the database is uploaded or updated, to the extent that the fear is that there would be a striking of people who could vote who are now being stricken because the saved database didn't update their naturalization status. The Supreme Court has ordered that the voting rights and privacy advocacy groups that sued have to respond by September 15th. What do you think the Supreme Court's going to do here? Well, there's a couple of issues that are very interesting.

23:11First, there's a standing problem, which is that the government is now raising the issue that if people are saying that their privacy rights are being violated, that has to be done by individual plaintiffs, not by organizations such as the League of Voters and the Electronic Privacy Coalition. And so that'll be very interesting to see if the Supreme Court actually just wants to dismiss this case on standing. But let's say it doesn't dismiss this case on standing and it goes through. One of the other arguments is that the government has basically forfeited these arguments because they've only raised them now after they've lost.

23:50And so this is not the time to raise them. That would be the second issue. But then the third issue that's also very fascinating is that the Casa case, which bans these universal injunctions, which the court didn't like, would potentially also be in play. And the issue is, is a universal injunction appropriate here? Because at the end of the day, maybe it's only appropriate for specific organizations, etc. And so the idea was only if you were a member of EPIC or of the League of Women Voters or something, could you not have your information used for voting purposes. So the court has a lot of interesting options here, potentially.

24:35But at the end of the day, what the government wants is a stay on the district court order so that every state who wants to use this database can use it in order to disqualify people from the voting rolls. Well, you also have this quiet period before the midterms and federal prohibition on states making a push to systematically remove voters from rolls 90 days before an election. Yeah, there's a there's a National Voter Registration Act, which prohibits states from doing systematic programs to remove voter rolls. Now, what the government is saying is this wouldn't be a systematic thing. This would be individualized removals based on specific correction of voter information.

25:25And that's like, you know, eye of the beholder, is the dress blue or is the dress gold? Because, you know, you need the systematic program access to the database in order to do the individual removals. So is this an individual removal case or is it a systematic program case? And that's going to have to be the court who's going to have to decide that. And also having to do with non-citizen voting. In this, according to Bloomberg sources, Justice Department leaders are pressing prosecutors across the country to bring up criminal charges for non-citizen voting before the midterm. So prosecuting immigrants who've unlawfully voted or attempted to do so.

26:12And, you know, there is a huge unlawful voter initiative where the Department of Homeland Security is looking for people. Well, this comes all from the belief that people voted unlawfully in past elections and that perhaps people who voted who shouldn't have voted led to results that shouldn't have occurred. We don't know if that happened or not. That's not been convincingly proven. in any particular race that a specific person won or lost because of a number of people voting without citizenship. But as a result of this, the Department of Justice is trying to figure out it's not a lot of people that they can find for actually voting, but can they prosecute people who are registered to vote under the guise of they've attempted to vote?

27:00And that's complicated because the people who have registered to vote, many of them are as a result of these motor voter programs where people go and get a license and then unwittingly, unbeknownst to them, they're registered to vote. And the question is, did that person actually check a box during that that said that they were a U.S. citizen or did the state actually make a mistake? And even if the person checked the box, would the argument be that the person had no idea what this box was they were checking? They were not checking this in order to get registered to vote, but instead were checking it because they just didn't understand the box or anything.

27:45All they thought they were doing that day was getting a driver's license. They knew they were eligible for a driver's license because they were here lawfully. They didn't think they were being asked any question about citizenship or voting, and they just randomly checked this box because they're checking boxes in order to get a license. I don't know how these would go in an individual jury case. We've seen a lot of cases this month about juries doing things because they feel it's the right thing to do or not the right thing to do. But one thing I do know is that even if these folks are not criminally prosecuted, they could be placed in deportation proceedings under the guise of making a false claim to U.S.

28:27citizenship. And there it wouldn't be a jury who might have sympathy. There would be an immigration judge. And many immigration judges today are being told you have to increase your numbers of deportations. You have to find deportation whenever it's possible. And in that forum, even if the person isn't criminally prosecuted, it might make no difference if they end up getting deported from the United States. Yeah. And also, I mean, they're doing this before the midterms, but any case is going to take longer than the midterms. I don't know why the push is right now to scare people into not voting if they're noncitizens.