Clean Drinking Water and the Constitution: What Sterling Decided

A Constitutional Right to Clean Drinking Water? What Sterling Decided

Sep 16, 2026
Brian Oram
News

Fifth Circuit Constitutional Right to Clean Drinking Water

The Fifth Circuit’s Sterling v. City of Jackson decision did not erase drinking-water protections or create a constitutional water guarantee. This article separates the court’s narrow due-process holding from the Safe Drinking Water Act, state law, regulation, and the engineering work that protects households.

The Fourteenth Amendment Is Not a Water Statute

Greg Reyneke’s September 13, 2026 Substack essay, A Constitutional right to clean water…, argues that the Fifth Circuit’s decision in Sterling v. City of Jackson was widely recast as “Americans have no right to clean water.” The holding is narrower. The court said the Due Process Clause does not create a federal constitutional duty to deliver uncontaminated tap water or truthful crisis briefings.

That is a civics point as much as a legal one. In the United States, drinking-water quality is governed by statute, regulation, engineering, finance, and politics. Treating it as a newly discovered constitutional entitlement both misreads Sterling and distracts from the tools that already exist.

Who Greg Reyneke is

Greg Reyneke is a water-treatment engineer and industry executive based in Utah. In 2026 he became president of the Water Quality Association. He is a Master Water Specialist and managing director of Red Fox Advisors; he also directs Crusader Water Systems.

He is a Pretoria, South Africa native who trained toward electrical engineering before entering the water business. He moved to the United States in the mid-1990s and joined Intermountain Soft Water in Lindon, Utah, first on controls for water softeners and later as engineering manager and general manager. Over roughly three decades he has worked on residential, commercial, and industrial treatment: softening, filtration, reverse osmosis, ultrafiltration, corrosion and Legionella control, wells, and related systems, from Utah homes to institutional plants and projects abroad.

The case, and the headlines

On September 4, 2026, the Fifth Circuit, sitting en banc, affirmed the dismissal of Jackson, Mississippi residents’ 42 U.S.C. § 1983 claims in Sterling v. City of Jackson, No. 24-60370. The plaintiffs—Priscilla Sterling, Raine Becker, Shawn Miller, and John Bennett—alleged that years of lead in tap water, a switch from high-pH well water to more corrosive surface water, delayed notice, and official assurances that the water was safe violated a Fourteenth Amendment right to bodily integrity. Defendants included the city, former mayors Chokwe A. Lumumba and Tony Yarber, former public-works officials, and Trilogy Engineering Services.

Judge Kurt D. Engelhardt, writing for the majority, called the alleged deprivations of clean water and “guileless information” “grievous.” He also said they “do not infringe upon any deeply rooted constitutional right.” The court was “skeptical that the right to not be harmed by lead-contaminated water fits within the right to bodily integrity,” and it found no historical tradition or Supreme Court precedent that would convert those injuries into a due-process claim.

A three-judge panel had revived part of the case in 2025 under a state-created-danger theory. The full court vacated that opinion, heard the case en banc on May 12, 2026, and replaced it with a 10–5 decision. Judge Catharina Haynes dissented in part, joined by four colleagues, arguing that the majority undersold the complaint and that discovery should proceed.

Coverage then flattened the holding. Mother Jones ran the story as “You Don’t Have a Right to Safe Drinking Water, US Court Rules.” Aggregators pushed the line further, until it read as a national slogan: Americans have no right to clean water.

Reyneke’s reply is that the slogan is not the opinion. The court did not repeal the Safe Drinking Water Act or the Lead and Copper Rule. It did not find, as fact, that officials “knowingly” poisoned residents. It pointed plaintiffs toward tools already on the books: state tort claims, elections, legislatures, and the federal and state oversight that has surrounded Jackson’s system since the 2022 crisis, including the third-party manager.

He flags three media overreaches:

“Knowingly” is an allegation, not a finding. The city denies it. The Fifth Circuit dismissed on legal grounds without a factual verdict on who knew what, and when.
Boil-water notices do not simply “concentrate lead.” Jackson’s boil orders were issued for microbes. Boiling does not remove lead; evaporation can concentrate it if water is boiled down, but that is not how most households follow a boil advisory. A larger lead risk during those episodes is using hot tap water to speed the boil. Hot water leaches lead from solder and fixtures faster than cold water does.
“No agency fixed it” overstates a real failure. Jackson’s pipes and plants remain degraded. That is not the same as a vacuum of regulation. The system has been investigated, ordered, and placed under federal management.

What the court actually decided

The question was not whether lead is toxic. It was whether the Due Process Clause lets a federal court treat a city’s water utility as a constitutional duty to deliver uncontaminated water and truthful crisis information.

The majority said no. Substantive due process, as the Supreme Court now instructs lower courts to read it, does not authorize new positive rights without a deep historical pedigree. Municipal water service is a statutory and political obligation. It is not a hidden clause of the Fourteenth Amendment. “The Constitution does not provide redress for every governmental wrongdoing,” Engelhardt wrote. “We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.”

The court acknowledged tension with Sixth Circuit Flint litigation such as Guertin v. Michigan. It was unpersuaded. Recourse, in this view, lives in statute, regulation, tort, and politics—not in an enlarged theory of bodily integrity.

That holding is easy to caricature and easy to overread. It does not mean a city may lawfully ignore the Safe Drinking Water Act. It means § 1983 is the wrong vehicle for converting a failed utility into a new constitutional guarantee.

“Human right to water” is a different fight

Reyneke traces some of the public confusion to a UN slogan that does two jobs at once.

Water is not a standalone right in the 1948 Universal Declaration of Human Rights. In 2002, the UN Committee on Economic, Social and Cultural Rights read it into the “adequate standard of living” in General Comment 15. In 2010, UN General Assembly Resolution 64/292 recognized a right to safe drinking water and sanitation by a vote of 122–0, with 41 abstentions, including the United States. The objections were largely about process and about a right with no defined duty-holder, volume, quality standard, or funding mechanism.

The campaign’s political ancestry runs through Bolivia and Cochabamba’s 2000 anti-privatization “Water War,” not through the U.S. Constitution. Following political ecologist Karen Bakker, Reyneke separates two ideas often jammed into one phrase:

A human right attaches to a person: access, non-discrimination, affordability.
A commodity or property regime decides who owns the resource, who may sell it, and who may exclude others from it.

Food and housing are also framed as rights and still sold by private firms under regulation. A social-democratic version of the water right can live with a regulated public or private utility. An anti-commodity version wants water treated as a commons and rejects full-cost recovery and private concessions. Declaring a right does not settle who pays for lead service lines, corrosion control, or treatment plants. Jackson’s pipes do not become new because a resolution passed in New York.

The Safe Drinking Water Act is a floor, not a purity guarantee

Most of Reyneke’s essay is a civics lesson the water industry still needs. The Safe Drinking Water Act of 1974, as amended in 1986 and 1996, created national standards for public water systems. It did not promise perfect tap water.

After Milwaukee’s 1993 Cryptosporidium outbreak, Congress moved from a rigid contaminant quota toward a risk-based pipeline: Contaminant Candidate List, Unregulated Contaminant Monitoring Rule, then a regulatory determination only if health risk, occurrence, and meaningful risk reduction all exist. Reyneke treats EPA’s March 2026 decision not to regulate several CCL 5 substances as the statute working as designed, not as a hidden repeal of protection.

The Act splits standards on purpose:

Primary standards are enforceable health floors: maximum contaminant levels or treatment techniques.
Secondary standards—taste, odor, staining, hardness, corrosivity—are generally non-enforceable federal guidelines, though states may make them binding.
Fluoride sits on both tracks: a primary MCL of 4.0 mg/L for skeletal fluorosis and a secondary level of 2.0 mg/L for mottling.
EPA also issues health advisories that are not themselves MCLs.

Maximum Contaminant Level Goals for many carcinogens are set at zero. Enforceable MCLs sit above zero because detection, technology, and cost are finite. Arsenic is the stock example: goal of zero, federal MCL of 10 µg/L, a tighter 5 µg/L standard in some states, and common method detection limits around 1 to 2 µg/L.

A city can therefore meet every primary MCL and still deliver hard, chlorinated, or slightly off-tasting water. That is not a loophole. It is how Congress allocated cost. Public systems treat a single pipe network used for drinking, cooking, bathing, and irrigation. Building two networks, one potable and one not, is expensive and dangerous if the lines cross.

If a household, factory, or laboratory wants water above that floor, it installs additional treatment—centralized process equipment or point-of-use (POU) and point-of-entry devices (POE). The statute even allows certified POU and POE units as small-system compliance technology in limited cases when the utility owns and maintains them. That is an engineering answer, not a constitutional one.

Jackson, on this reading, is a failure to fund capital work, maintain corrosion control, notify the public on time, and enforce existing rules. It is not proof that the Fourteenth Amendment was missing a water clause.

What follows from the opinion

Congress built a statutory floor. The Fifth Circuit said that floor is not hidden in the Fourteenth Amendment. Everything above the floor—additional barriers, polishing, specialty purity—belongs to regulation, capital budgets, elections, tort law, and customized treatment.

In one sentence: clean water in the United States is a statutory, political, engineering, and market problem, not a newly discovered constitutional right. Treating it as the latter misreads Sterling and distracts from the outreach, enforcement, and treatment tools designed to protect the public.

Reyneke’s full essay is here.

Fifth Circuit’s Sterling v. City of Jackson Decision

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Editor’s note. We agree with Reyneke’s central point: Sterling does not announce that officials may ignore contaminated water. It says the remedy is not a new substantive-due-process right. Public water service in the United States is created and constrained by statute, utility regulation, and the relationship between a system and its customers. Utilities, authorities, and primacy agencies can still be held to the Safe Drinking Water Act, the Lead and Copper Rule, state law, and tort duties. Calling tap water a “constitutional right” does not pour concrete, replace lead lines, or run a corrosion-control program. Those are the jobs the statute and the industry already describe. It also does not replace the obligation of the end user to properly maintain their portion of the household plumbing and to install fixtures and other water use devices that meet standards. What next, do we have to take a water sample after filling a glass to check whether the user properly washes the dishes?

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