Water as a Fundamental Right in the United States

Water. We need it to survive, it’s one of the essential elements to life and because of that status both the UN and international law have declared it a guaranteed right. Yet, in the United States nearly 30 million people live in areas where the water system violate safety rules. Children who live in areas with compromised water systems have been found to have traces of uranium in their blood and other rare infections such as hookworm. In extreme examples, such as Flint Michigan, residents are forced to use bottled water in place of tap water because the drinking water has become so contaminated by chemicals, untreated sewage and other byproducts of industrialized production that it is unsafe for human consumption. Such severe pollution is possible because of limited governmental regulation of drinking water. Lobbying by chemical companies and other corporations has made it difficult for legislation protecting waterways to pass through Congress. However, if water were identified as a fundamental right, it may provide an alternate route to protecting drinking water by offering a pathway through the courts to sue for clean water.

A fundamental right is a right that has been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. Examples of fundamental rights are marriage, privacy, contraception, travel, or voting. Traditionally, for something to be considered a fundamental right it must have been “deeply rooted in the nation’s history and tradition.” (Moore v. City of E. Cleveland, Ohio, 431 U.S. 494 at 503.) However, this kind of circular logic makes it exceedingly difficult for new fundamental rights to be declared. But, a recent appellate court decision regarding literacy as a fundamental right may offer a new framework under which to analyze potential fundamental rights. The sixth circuit case of Gary B. v. Whitmer stated that if an asserted right is implicit in the concept of ordered liberty, such that neither liberty, nor justice, would exist if they were sacrificed, the right is a fundamental one. Although the test has not yet been accepted by the Supreme Court, it provides a new and interesting way to think about rights that arguably, should be fundamental and is the framework under which water as a fundamental right will be analyzed.

Access to clean water is a prime example of environmental injustice, meaning there is an imbalance of environmental risks and exposure to pollution that is experienced by poor and minority communities. An environmental injustice can never equate to justice, and therefore, under the proposed analysis, access to clean water should be a fundamental right. According to the 2019 census data, over 50% of the population of Flint, Michigan is Black or African American. Only 12% of the city’s residents have a college education or higher which contributes to a low median household income of just $27,717. The national median household income in the same year was $75,500. Forty percent of the population of Flint lives at or below the poverty line. Flint is a clear example of environmental injustice; it has high rates of poverty, the community consists of mostly minorities and they are at a much higher risk of being exposed to dangerous pollution than the average person. As such, the concept of justice, meaning equality, has been sacrificed.

From flintwaterstudy.com; Bottles of water taken from a resident’s tap on four different days in January

Liberty is a state of being free within society. Freedom inherently implies an ability to live without oppression or restrictions. However, without clean water that is easily accessible, freedom is an unattainable goal. The residents of Flint are unable to live freely within their own town because of the harsh pollutants that contaminate their drinking water. Life cannot exist without clean drinking water; it is the most basic necessity of life. Therefore, ordered liberty cannot exist until there is access to clean water for everyone. As such, neither liberty, nor justice, would exist without a right to clean water.

Under the proposed analysis in Gary B. v. Whitmer, water would be declared a fundamental right and it would create a pathway for millions of Americans, including the citizens of Flint, to finally have access to clean water. Water has already been declared a right by the United Nations, it is time the United States recognizes it as a fundamental right too.