Bloomberg Law
Sept. 14, 2022, 6:01 PMUpdated: Sept. 14, 2022, 7:14 PM

Jackson’s Long-Term Water Woes Seen as Best Solved in Court (1)

Bobby Magill
Bobby Magill

A lawyer who represented thousands of children in the Flint, Mich., water crisis says suits he filed against the city of Jackson, Miss., would help to resolve decades of neglect that contributed to Jackson’s loss of drinking water.

“Sometimes by the nature of litigation, you have an effect on the way things are done,” said Corey Stern, a partner at Levy Konigsberg LLP in New York.

Because of the Flint litigation, “I’d be shocked if what happened in Flint happens again,” and the same thing would be true for Jackson, he said.

Stern over the last year has filed three federal lawsuits in the US District Court for the Southern District of Mississippi against the city on behalf of hundreds of children challenging Jackson’s alleged failure to remove lead pipes and comply with the Environmental Protection Agency’s Lead and Copper Rule. The suits were consolidated into J.W. v. Jackson.

That litigation isn’t directly related to the most immediate crisis in Jackson—the city has been under boil-water orders since July and lost water pressure following a flood in August. But the lawsuit could help to fix the underlying problems that led to both crises because all levels of government are now on “high alert” with the public spotlight shining on the city’s long-term problems, he said.

Anytime a government “is credibly sued, and in large numbers from people, more than anything, there will be serious attention paid to the allegation and the root cause for why this stuff happened,” Stern said.

Both the lead crisis and the city’s recent loss of potable water “are direct results of awful, awful management of this water utility since the beginning of time,” Stern said. “Jackson has been getting notices of violation from the EPA and just hasn’t done anything about it. There’s been a failure at pretty much every level of government.”

‘Money is Available Now’

Several lawyers said the current crisis in Jackson, and others like it throughout the country, are best resolved through political and administrative action rather than a lawsuit—especially now that the Biden administration’s Justice 40 initiative directs federal infrastructure dollars to underserved communities.

Mississippi is eligible to receive $19.3 million in Drinking Water State Revolving Fund money for 2022 from the Infrastructure Investment and Jobs Act 2022, plus an additional $8 million for addressing emerging contaminants and $30 million for replacement of lead service lines, according to the EPA. Sen. Cindy Hyde-Smith (R-Miss.) has asked the Office of Management and Budget to include funding for Jackson recovery in its supplemental budget request for new funding for Ukraine, Covid-19 and monkeypox.

Amid broad disinvestment in infrastructure, legal action makes sense for its public relations value highlighting the problem, but residents will have a difficult time holding cities legally liable for failing to provide reliable drinking water, said Gabriel Eckstein, director of the Energy, Environmental and Natural Resource Systems Law Program at Texas A&M University School of Law.

“There’s nothing in the legal system that says we have a human right to water,” Eckstein said.

Investing in drinking water infrastructure is the key to solving local water crises, said Chandra Taylor-Sawyer, a senior attorney for the Southern Environmental Law Center’s environmental justice initiative.

“The time to act is now because the disinvestment has happened over decades and the money is available now” and political pressure needs to be applied quickly to ensure states send the money to affected communities, she said.

Trail of Mismanagement

The city found elevated lead levels in its drinking water in 2015, and misapplied treatment chemicals in 2016 due to a failing corrosion control system, according to a July public notice. For four years, the city said it failed to consistently meet water treatment requirements, violating the Lead and Copper Rule.

State health officials issued a boil-water notice at the end of July for high turbidity levels—a problem made worse by an August flood on the Pearl River, which led to a loss in water pressure that was later restored. The city remains under a boil-water order, and the city is receiving assistance from the Federal Emergency Management Agency.

Jackson Mayor Chokwe Antar Lumumba’s office didn’t respond to multiple requests for comment, but the city denied most of the allegations in Stern’s lawsuits.

EPA has been working with the city to “address numerous concerns with long-term water issues,” including addressing infrastructure operation and maintenance needs, EPA spokeswoman Maria Michalos said.

The EPA has issued three notices of noncompliance to the city since 2020, plus one emergency order and an administrative order, she said. The agency has issued “more than 30" drinking water quality violations in the last 30 years, she said.

The EPA Office of Inspector General also said Tuesday it is investigating the agency’s response to the Jackson water crisis and how the EPA has overseen the the city’s water system. It also is looking at how the agency administered the Clean Water and Drinking Water state revolving funds, which provide money to the state for water and sanitation system upgrades.

EPA Administrator Michael Regan visited Jackson last week to meet with city and state officials to discuss “committing to developing a plan” to stabilize the city’s water system for the short and long terms, Michalos said.

More Jacksons and Flints

In particular, officials need to immediately address the city’s long-term failure to comply with the Lead and Copper Rule leading to elevated lead levels in drinking water, Stern said.

Good water system management and water quality oversight are essential to long-term good drinking water quality even after infrastructure has been improved, he said.

“Flint didn’t better because they replaced all the pipes,” Stern said. “Flint got better because Flint started treating all the water properly.”

Nationwide, the U.S. Water Alliance found in 2019 that 2 million people nationwide have little or no access to safe drinking water or sanitation.

“There are Jacksons and Flints 100 times over—1,000 times over—throughout the United States,” Texas A&M’s Eckstein said.

(Updates with comments from EPA.)

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