Can a government be held constitutionally accountable when it supplies contaminated drinking water, and then tells residents the water is safe?

According to the U.S. Court of Appeals for the Fifth Circuit, the answer is not under the U.S. Constitution’s Due Process Clause.

In a significant September 4, 2026, en banc decision, the Fifth Circuit affirmed dismissal of a lawsuit brought by Jackson, Mississippi, residents who alleged that city officials allowed lead to contaminate the municipal drinking water system and then misled residents about the danger. The court held that the Constitution does not recognize either a right to be free from government caused exposure to contaminated drinking water or a constitutional right to truthful information from public officials about contamination.

The decision, Sterling v. City of Jackson, No. 24-60370, was authored by Judge Kurt Engelhardt and joined by Chief Judge Elrod and eight other judges. Two judges were recused.

A Water Crisis Becomes a Constitutional Case

The facts underlying the case are extraordinary. Jackson’s water system had produced water containing lead, E. coli and other bacteria, experienced extended outages and generated numerous boil-water notices. The plaintiffs alleged that city officials knew the treatment system could not adequately prevent corrosion of water pipes, yet failed to correct the problem. They further alleged that officials told residents their water was safe despite knowing that it likely was not.

The plaintiffs sued under 42 U.S.C. § 1983, asserting substantive Due Process violations, including rights involving bodily integrity and state-created danger.

The Fifth Circuit’s en banc majority, however, framed the claims more narrowly: whether the Fourteenth Amendment protects a right not to be exposed to contaminated water caused by government action and a right to truthful information from public officials about contaminants in municipal drinking water.

The answer was no.

History and Tradition Control

This decision reflects the Supreme Court’s increasingly restrictive approach to substantive Due Process. The Fifth Circuit emphasized Dobbs v. Jackson Women’s Health Organization and earlier Supreme Court precedent requiring courts to exercise “utmost care” before recognizing new substantive constitutional rights.

The court concluded that neither asserted right is sufficiently “deeply rooted” in American history and tradition.

The first community waterworks system in the United States was built in Bethlehem, Pennsylvania, in 1754. After a cholera outbreak in 1832, New York City began construction of the Croton Aqueduct, which began supplying potable water to the public in 1842.

The majority also rejected the argument that contaminated water necessarily implicates the established constitutional right to bodily integrity. That right protects against direct governmental intrusions such as forced medical procedures, forced stomach pumping, and certain physical assaults. But the court reasoned that municipal mismanagement that results in lead exposure is fundamentally different.

The court was similarly unwilling to transform misleading government statements into a constitutional right to accurate information. Public officials, the court acknowledged, are expected to be truthful, particularly when public safety is involved. But the court concluded that being desirable does not make truthful government information a constitutional entitlement.

The court put the point bluntly: “The Constitution does not provide redress for every governmental wrongdoing.”

That sentence may ultimately be the most important takeaway from the decision.

What the Decision Does – and Does Not – Mean

The ruling does not mean that contaminated municipal drinking water is lawful.

Nor does it eliminate the Safe Drinking Water Act, EPA enforcement, state drinking water requirements, tort claims, or other statutory and common law remedies.

Significantly, government officials faced extensive criminal charges for a compromised water supply in Flint, Michigan, in 2014. Prosecutors charged nine former high ranking state and city officials, including former Governor Rick Snyder, with a total of 42 counts ranging from willful neglect of duty to involuntary manslaughter. No government officials were ultimately convicted.

Indeed, Jackson’s water problems have generated substantial federal intervention. EPA and the Department of Justice have been working for years to bring the city’s water system into compliance with federal requirements. EPA reports that repairs have improved reliability, corrosion-control treatment has been completed at one treatment plant, and additional work remains underway.

The EPA’s own Inspector General, moreover, concluded in 2024 that deficiencies in Mississippi’s enforcement program and inadequate EPA oversight contributed to the Jackson drinking water crisis.

And in 2026, EPA announced another $27.4 million for Mississippi to address lead in drinking water, including identifying and replacing lead service lines.

In other words, the absence of a constitutional right does not mean the absence of environmental law.

A Warning for Businesses and Government

For real estate owners, developers, operators, and other businesses, Sterling is a reminder not to confuse constitutional liability with environmental liability.

A water quality problem may fail as a § 1983 constitutional claim while simultaneously creating substantial exposure under federal or state environmental statutes, drinking water regulations, negligence law, contract provisions, insurance policies or other legal theories.

The distinction matters.

The Fifth Circuit majority expressly pointed plaintiffs toward tort claims, criminal charges, legislation and regulatory enforcement. It also emphasized that federal and state authorities already have mechanisms for addressing Jackson’s water problems.

There is also an important dissent. Judge Higginson argued that the plaintiffs had plausibly alleged both bodily integrity and state created danger theories and should at least have been allowed discovery. He emphasized that the alleged facts, if proven, describe government conduct that affirmatively created or increased the danger to residents.

That disagreement may not be the last word. The Fifth Circuit’s decision creates an important circuit split with decisions from other circuits that have recognized, or been more receptive to, constitutional claims involving government created environmental dangers and contaminated water.

Moreover, government officials across the country are telling residents the water is safe. Really?

For now, however, in the Fifth Circuit, the message is clear:

A government may have an environmental, statutory, tort or political obligation to provide safe drinking water without the Constitution itself creating a private right to it. And a second takeaway from the decision may be that we will likely see more state and local government officials facing criminal charges in environmental matters ranging from willful neglect to involuntary manslaughter.

The distinction of having a legal obligation even when a constitutional protection does not exist is something that businesses, and the public agencies with which they interact, should understand.

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