April 01, 2020

Municipal Power and Racial Injustice: Solutions for Water Discrimination

Coty Montag

Albert Pickett, a Black man and lifelong resident of East Cleveland, Ohio, has lived without running water in his home for six years. Pickett v. City of Cleveland, No. 19-cv-2911, Complaint at 23 (N.D. Ohio Dec. 18, 2019), naacpldf.org/wp-content/uploads/Pickett-Filed-Complaint.pdf. His sole income is disability benefits. Pickett owns and lives in his childhood home. When he moved in about a decade ago, there was an unpaid balance on the water account, which he was unable to pay. Pickett attempted to negotiate a payment plan with Cleveland Water, but was denied because he could not afford a down payment of several hundred dollars. In 2013, his water service was shut off. The water department placed a lien on his property for just under $550 in overdue bills, which increased once interest and penalties were added. His sister eventually paid off the lien, but Cleveland Water claims that he still owes the department $2,800, even though his water has been disconnected for years. In October 2019, Pickett’s home caught on fire. Without water on the premises, he was unable to douse the flames, and his home is currently uninhabitable.

Jarome Montgomery is a Black resident of a Cleveland suburb, Warrensville Heights. For years, Montgomery has received what he believes are inflated bills from Cleveland Water, including during a period of time when no one was living at his property. Pickett, Complaint at 25. In 2015, Cleveland Water placed a water lien on his property for nearly $6,000 in overdue charges. He has entered into several payment plans with Cuyahoga County to pay off his debt over time but struggles to afford the costly payments of $1,200 per month. In 2018, Cleveland Water placed a second lien on his home for an overdue water bill totaling nearly $2,500. Montgomery currently owes close to $6,000 on his two liens, placing him at risk of tax foreclosure and eviction from his home. In November 2019, Cleveland Water informed Montgomery that they were preparing to place a third lien on his property, this time for an unpaid water bill of around $425.

These stories are not outliers: for years, Black Clevelanders have been plagued by erroneously high water bills, service shutoffs, and the loss of homeownership through tax foreclosure for failing to keep current on their accounts. Although there is a formal process in the city to contest water bills, Cleveland Water typically does not notify customers of their right to a hearing to dispute their water charges. Customers who do receive a hearing typically receive no billing adjustment. And when families fall behind on their bills, Cleveland Water converts unpaid debts to property liens, which diminish home equity and place residents at risk of losing their homes through tax foreclosure. In Cuyahoga County, more than 11,000 water liens were placed on properties between 2014 and 2018. Coty Montag, NAACP Legal Def. & Educ. Fund, Inc., Water/Color: A Study of Race and the Water Affordability Crisis in America’s Cities 44 (2019) (analysis based on publicly available data provided by county). While only 30.5 percent of Cuyahoga County’s population is Black, most water liens (up to nearly 70 percent in 2017) are located in majority-Black areas, which can lead to a devastating loss of homeownership in these neighborhoods. In December 2019, the NAACP Legal Defense and Educational Fund, Inc. (LDF) filed the federal lawsuit, Pickett v. City of Cleveland, on behalf of Pickett, Montgomery, three other individual plaintiffs, and several proposed classes, challenging Cleveland’s water practices under the Fair Housing Act (FHA) and other statutes. Pickett, Complaint at 32–37.

Cleveland is not unique. In Dekalb County, Georgia, which is part of the greater Atlanta metropolitan area and has a majority-Black population, residents have banded together to protest increasingly high water bills, which they claim are incorrect and unfair. The high bills appear to be related, at least in part, to metering issues. After community advocacy, residents successfully obtained a moratorium in 2016 banning the jurisdiction from disconnecting water for customers in arrears on their bills. Mark Niesse, DeKalb Won’t Turn Off Water While Residents Fight High Bills, Atl. J.-Const. (Sept. 20, 2016). But customers must request and qualify for the moratorium and must pay their average water bill while their account is in dispute. And bills continue to remain unusually high. After years of local advocacy, there is no permanent solution to the issue of costly water in the county.

Flint, Michigan, a majority-Black city, has received international attention for its water contamination crisis. But even there, local officials have threatened residents with water liens and tax foreclosures for failing to pay for tainted water. In 2017, Flint sent notices to about 8,000 city homeowners, warning families that they were at risk of tax foreclosure for failing to pay water bills issued between 2014 and 2016. Brianna Sacks, Flint Residents Win Battle Over Losing Their Homes Because of Unpaid Water Bills, BuzzFeed News (May 17, 2017). Civil rights groups persuaded the city to halt this practice. But in 2019, when Flint’s pipes were still under repair, the letters reemerged: nearly 8,000 notices were once again mailed to residents in arrears, notifying them that they were at risk of tax foreclosure for failing to pay their water bills. City officials claimed the letters were sent in error and promised advocates that they would not take action on residents with overdue bills while the city is under a water emergency. Zahra Ahmad, Flint Mistakenly Sends Out 7,931 Water Lien Notices, MLive (May 8, 2019). However, by late 2019, Flint’s pipe replacement was nearly complete, and officials may seek to collect on past-due bills for contaminated water––including by foreclosing on residents’ homes––once the work is finally done.

In Baltimore, Maryland, where 60 percent of the population is Black, thousands of residents have lost their homes through tax foreclosure for failing to pay their water bills. Joan Jacobson, The Steep Price of Paying to Stay: Baltimore City’s Tax Sale, the Risks to Vulnerable Homeowners, and Strategies to Improve the Process, Abell Found., 9 (Oct. 2014). The crisis was so dire that, in 2019, the state of Maryland passed a law banning the city of Baltimore––and only the city––from selling liens on homes solely for water or sewer debts. Luke Broadwater, Maryland General Assembly Passes Legislation Barring the Seizure of Baltimore Homes over Water Bills, Balt. Sun (Apr. 3, 2019). Still, the city’s water issues are not resolved. Over the last decade or so, Baltimore has increased its water rates by an average of 9 percent annually, and the rate increases have had the most profound effect on the city’s Black residents, some of whom pay up to 8 percent of their incomes on water services. Since 2016, the city has lacked a formal hearing process for customers to dispute bills (in August 2019, the city instituted a bill review system with its Environmental Control Board, which was deemed inadequate by local activists). In 2019, a ransomware attack crippled the city’s systems––including its ability to issue water bills––for months. When systems were eventually restored, residents received bills for four months of usage. For many customers, these bills were vastly higher than expected, even accounting for the missed months of payments.

There are common themes in these jurisdictions: a large Black population, unaffordable (and even illegally assessed) water bills, an inadequate dispute resolution process, and severe consequences enforced by the local jurisdiction, including water shutoffs and tax foreclosures, for failing to pay a water bill.

Yet, municipal discrimination in the provision of water and sewer services is not a new trend. Just over 50 years ago, Black residents in a small town in Mississippi filed the first-ever lawsuit challenging the provision of public services, including water and sewer, as discriminatory under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. More recently, in 2008, a Black community in Zanesville, Ohio, won an FHA lawsuit against their town for failing to provide them with water services for nearly five decades. These cases, discussed further below, demonstrate that present-day water inequities are grounded in historical discriminatory municipal practices and that water infrastructure––both access to it and its cost––has proven to be a barrier for Black communities over time.

Water Rates and Infrastructure Needs

Water bills have been on the rise nationwide, increasing more than 100 percent between 1990 and 2006 and far outpacing the general rate of inflation. Today, the average family in the United States pays $115.50 per month for water services, up from around $72 less than 10 years ago. Brett Walton, Price of Water 2019: Even Without Federal Infrastructure Deal, Cities Continue to Invest, Circle of Blue (2019).

Rising rates mean that keeping up with water bills is increasingly difficult for many families, particularly low-income households. While water is generally considered “affordable” if bills do not exceed 2 to 2.5 percent of median household income, many communities pay much more. A 2016 federal government study found that water and sewer bills could exceed 8 percent of income for low-income households in some areas. U.S. Gov’t Accountability Office, Water Infrastructure: Information on Selected Midsize and Large Cities with Declining Populations 27 (2016). In Detroit, many impoverished families pay up to 10 percent of their incomes on water services. In 2016, Flint residents paid an average of 7 percent of their incomes on water––at that time, the highest rate in the nation. As mentioned above, in Baltimore, many families pay around 8 percent.

Given the link between income and race, rising water and sewer rates can severely impact communities of color. In 2019, LDF issued a report concluding that the nation’s water affordability crisis has a disproportionate impact on Black communities. Montag, Water/Color, at 35–36, 50–55. Other studies have made similar findings. See, e.g., Maria Zamudio & Will Craft, APM Reports, So Close, Yet So Costly (2019) (finding that water shutoffs in the Great Lakes region disproportionately occur in Black and Latinx neighborhoods); We the People of Detroit Community Research Collective, Mapping the Water Crisis (determining that Detroit’s water shutoff crisis had the most stark impact on Black residents). But some studies, including LDF’s, have found that income is not the only factor contributing to the disproportionate impact of municipal water practices on Black families, suggesting that discrimination––whether intentional or not––also plays a role.

While a variety of factors influence the price of water in the United States, including population fluctuations and local political dynamics, the most significant is the need to update and upgrade our water infrastructure. In its most recent report in 2017, the American Society of Civil Engineers gave a D grade to our nation’s drinking water infrastructure. Climate change; water contamination in places like Flint and Newark, New Jersey; and water scarcity in many areas of the United States have brought more urgency to the question of how to adapt our nation’s water infrastructure in a safe and sound manner.

But infrastructure upgrades are costly. When a Baltimore official was asked by Circle of Blue in 2019 about the city’s latest 9 percent rate increase, he was succinct: “It’s the infrastructure.” Walton, Price of Water 2019. Estimates to keep our nation’s water systems operating properly range from $400 billion to $1 trillion. Cities struggle to fund these upgrades, and federal funding is hard to come by: most federal water infrastructure funding is now provided through loans, like the Water Infrastructure Finance and Innovation Act program, which is administered by the EPA and provides long-term, low-cost loans to local and state entities for water projects. U.S. Envtl. Protection Agency, Water Infrastructure Finance and Innovation Act Program (WIFIA). Other federal funding is provided to states from “revolving funds” established by the 1987 amendments to the Clean Water Act, Pub. L. No. 100-4; 33 U.S.C. § 1383; 40 C.F.R. § 35.3100 et seq.; and the 1996 amendments to the Safe Drinking Water Act, Pub. L. No. 104-182; 42 U.S.C. § 300j-12; 40 C.F.R. § 35.3500 et seq. Through the revolving funds, states must match federal funding and provide loans to utilities for water infrastructure projects.

But even recognizing the significant burden on cities to replace and upgrade their infrastructure, local officials have wielded their power in providing (and billing for) water and sewer services in ways that discriminate against communities of color. And these municipal practices are rooted in our nation’s long history of racism and discrimination.

Hawkins v. Town of Shaw: The First Challenge to Unequal Municipal Services

The environmental justice movement first gained traction in the 1960s, when Black communities banded together to protest the disproportionate siting of toxic facilities in their neighborhoods. In 1979, a Black community in Houston filed the first lawsuit challenging the siting of a sanitary landfill (or garbage dump) in their neighborhood, after Dr. Robert D. Bullard, now known as “the father of environmental justice,” established a connection between the location of landfills in the city and race. Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673 (1979); see also Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality, xiv–xv, 40–45 (3d ed. 2000). Other Black communities soon followed suit. Studies issued in the 1980s, including from the Government Accountability Office and the Commission for Racial Justice, also brought a racial lens to the siting of toxic facilities.

In part, the environmental justice movement was a response to the patterns of racial residential segregation that were firmly entrenched throughout the United States by the mid-twentieth century. Stark segregation enabled municipalities to more easily place noxious facilities in Black communities and to deprive them of essential public services. By the 1960s, Black communities had identified inadequacies in municipal services as a major grievance, including in the Kerner Commission’s 1968 report examining the causes of race riots throughout the U.S. Nat’l Crim. Just. Reference Serv., Report of the National Advisory Comm’n on Civil Disorders, 81–83 (1968). In 1967, LDF responded to this escalating crisis with the first equal protection lawsuit challenging discrimination in municipal services on behalf of a group of Black families living in Shaw, Mississippi. The case was Hawkins v. Town of Shaw.

At the time of the lawsuit, Shaw had only 2,500 residents, 1,500 of whom were Black. While most urban water systems in the United States were constructed in the late 1800s, Shaw’s public water system was not built until 1930. The town had no sanitary sewer system until 1963. Like other communities, Shaw was rigidly segregated by race: 97 percent of Black families lived in areas where no Whites resided. Black people lived in the outer bounds of town; Whites closer to the commercial center. Those White areas had comfortable municipal amenities, unlike the town’s Black neighborhoods, which lacked water mains and fire hydrants, and where the streets were unpaved and unlit. Only 80 percent of homes on the Black side of Shaw had access to sanitary sewers, while virtually all White homes had access. Unlike the Black neighborhoods, Shaw’s White areas had underground storm sewers. Smaller water mains had been installed in Black homes, resulting in much lower water pressure as compared to White homes. Andrew Hawkins, a Black carpenter and the lead plaintiff in the case, lived in a home without indoor plumbing.

LDF filed the lawsuit in the Northern District of Mississippi, alleging that Shaw had violated the Equal Protection Clause of the Fourteenth Amendment by failing to provide municipal services to its Black neighborhoods that were equal to those provided in White neighborhoods. The case was a significant legal risk: the Equal Protection Clause had never been applied to a case involving municipal services. Still, lawyers at LDF (who had won the battle to desegregate schools in Brown v. Board of Education, 347 U.S. 483 (1954)) believed that they could logically extend the victory in Brown to challenge discriminatory living conditions.

But legal hurdles faced the lawyers. The district court dismissed LDF’s complaint, rejecting the existence of a constitutional right to equal municipal services. In its opinion, the court justified the inadequate services in Shaw’s neighborhoods, finding that they could be explained by “substantial, rational considerations.” Hawkins v. Town of Shaw, 303 F. Supp. 1162, 1169 (N.D. Miss. 1969). For example, according to the court, streets were paved in the town’s White neighborhoods because of general usage and traffic needs. The court did concede that many Black families in Shaw lacked access to the sewer system and had no indoor plumbing, but stated that the town’s policy was to extend service “to all desiring to take advantage of it,” suggesting it was simply a matter of choice. The court also determined that water pressure was inadequate throughout certain areas of town “irrespective of their racial character.” The court concluded by directing plaintiffs to exercise their right to vote to effect change: as “Negro citizens have voting power approximately equal to that of [W]hite citizens,” any “problems” with unequal services “are to be resolved at the ballot box.”

LDF appealed and won. In 1971, the Fifth Circuit Court of Appeals reversed the district court’s ruling, finding that plaintiffs had “clearly” made out a case of racial discrimination that could not be justified by any compelling state interests. Hawkins v. Town of Shaw, 437 F.2d 1286, 1288–89 (5th Cir. 1971). For example, the appellate court noted that testimony from the town’s engineer directly contravened the assertion that streets were paved according to usage and traffic needs. The court also determined that an extension of the sewer system would allow Black families to more easily install indoor plumbing. The panel disagreed that low water pressure was unrelated to race, finding that the areas of town with inadequate pressure were populated by Black families. The court also noted that there was no evidence of intent to discriminate by Shaw’s officials but held that the law was “clear” that actual intent or motive need not be directly proved in a civil rights lawsuit alleging racial discrimination. Shaw successfully petitioned the Fifth Circuit for rehearing en banc, but the full appellate court upheld the panel decision, agreeing that proof of intentional discrimination was not required and that the facts “squarely and certainly” supported the inference of clear overtones of racial discrimination in the provision of municipal services in Shaw. Hawkins v. Town of Shaw, 461 F.2d 1171, 1173 (5th Cir. 1972).

While the Shaw decision was expected to have significant implications for municipal services across the nation, the Supreme Court limited its reach within a few years, holding in Washington v. Davis that an equal protection claim requires a plaintiff to meet the higher standard of proving intentional discrimination. 426 U.S. 229, 242 (1976). As a result, it has been more difficult for plaintiffs to succeed in equal protection cases following Shaw’s model. Charles M. Haar & Daniel Wm. Fessler, The Wrong Side of the Tracks: A Revolutionary Rediscovery of the Common Law Tradition of Fairness in the Struggle Against Inequality 47–50, 233–39 (1986); see also Lois G. Forer, For Equal, If Separate, Neighborhoods, N.Y. Times (Apr. 13, 1986). Still, the FHA, which was enacted a year after Shaw was filed, is a viable option for plaintiffs seeking to remedy discriminatory municipal services, as discussed further below. Unlike equal protection claims, an FHA case may be brought to address the discriminatory impact of a municipality’s practice, even in the absence of evidence of intent. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2525 (2015).

In October 2019, the town of Shaw held a weekend of celebrations to commemorate the 50th anniversary of the case. Earlier that year, archivists who traveled to the town to document an oral history of the case noted that infrastructure quality in 2019 remains poor, and frequent flooding prevents entire segments of the town from leaving their homes. UNC Univ. Library, On the Road: The Community Driven Archives Team travels to Shaw, Mississippi, February 2019 (Mar. 2019).

Kennedy v. City of Zanesville: Five Decades with No Water

For nearly 50 years, the predominantly Black community of Coal Run, located just outside the city limits of Zanesville, Ohio (not far from Columbus), lived without municipal water services. The groundwater in Coal Run is contaminated from mining and unfit for residential purposes. While the neighborhood was surrounded by water lines going to predominantly White areas of town, first constructed in 1956, Zanesville repeatedly rejected residents’ requests to connect to the lines. Instead, families had to resort to water gathering tactics used in the eighteenth century, before our urban water systems were constructed, including collecting rainwater and melted snow. Animals would be found floating or swimming in residents’ water cisterns. One Coal Run resident, Rodney Hale, recalled that a visitor told him that “your water tastes like it has a rat in it.” Eric Lyttle, Zanesville’s Black Residents’ Right for Clean Water, Bittersweet, The Columbus Dispatch (Feb. 16, 2014). In 2001, at a County Commissioner Board meeting, one family was reportedly informed that there would be no water at Coal Run “until President Bush drops spiral bombs” into the neighborhood (the county later denied making such a statement). Kennedy v. City of Zanesville, 505 F. Supp. 2d 456 (S.D. Ohio 2007). Meanwhile, neighboring White residents were able to install hot tubs and water their lawns without issue.

In 2003, the residents of Coal Run filed a federal lawsuit to challenge the lack of water services in their neighborhood. The case, brought by the civil rights law firm Relman Dane & Colfax and the Equal Justice Foundation, was filed pursuant to the FHA and the Ohio civil rights statute, among other causes of action. Plaintiffs alleged that Zanesville, Muskingum County, and local officials discriminated against the Black residents of Coal Run in denying them water services because of their race. Importantly, by bringing an FHA claim, plaintiffs made a clear connection between housing and water services––an oft-overlooked issue. Water services are critical to the habitability of one’s home and the FHA should be utilized more in challenges to the lack of such services.

After years of litigation, the plaintiffs prevailed. In 2008, a jury awarded close to $11 million in damages to the plaintiffs. Jury Verdict, Zanesville, No. 2:03-cv-01047 (S.D. Ohio Jul. 10, 2008); see also Dirk Johnson, For a Recently Plumbed Neighborhood, Validation in a Verdict, N.Y. Times (Aug. 11, 2008). Defendants appealed, but the parties eventually reached a settlement totaling $9.6 million. Following the lawsuit, water finally flowed freely from the pipes in the homes of Coal Run residents.

Moving Forward and Potential Remedies for Change

Shaw concerned the inadequate provision of municipal services, including water and sewer, in a town’s Black neighborhoods compared to its White areas. Zanesville centered on a local government’s complete failure to provide water services to a predominantly Black neighborhood for decades. LDF’s new lawsuit, Pickett, challenges a municipality’s water practices that can lead to foreclosure and eviction. These issues, and others (like affordability and contamination), continue to impact Black communities today and demonstrate how local governments have historically wielded––and still wield––their power to provide or deny affordable and clean water to Black communities.

Fortunately, some cities are thinking progressively and critically about the provision of water services to their residents, even in light of rising infrastructure costs. In Philadelphia, after years of rampant water shutoffs that disproportionately impacted Black and Latinx households, the city unveiled a new income-based water billing program in 2017. Under the program, participants pay between 2 and 3 percent of their incomes toward their water bills. Pat Loeb, City to Unveil New Plan to Help Low-Income Families Pay Water Bill, CBS Philly (Jun. 19, 2017). In Chicago, the city’s new mayor pledged in 2019 not to shut off water services to households in arrears on their bills. Nikki Pederson, New Chicago Mayor to End Water Shutoffs, APM Reports (May 21, 2019). Even in Baltimore, plagued with its many issues, local activists are hopeful for change: a new law passed by the city council in late 2019, the Water Accountability and Equity Act, will provide for income-based water billing and establish an office of Water-Customer Advocacy and Appeals to resolve billing disputes in a fair manner. Talia Richman, Baltimore’s Water Equity, Plastic Bag Bills Heading to Mayor’s Desk, Balt. Sun (Nov. 18, 2019). And the San Francisco Public Utilities Commission was the first in the nation to adopt Community Benefits and Environmental Justice policies, which shape how the city provides utility services while positively impacting the communities it serves. San Francisco Water, Power, Sewer, Community Benefits History: Our History of Building Community, sfwater.org (2019).

Other jurisdictions should follow these cities’ lead. Local officials should pursue reforms to ban the sale of liens for unpaid water and sewer bills and to prohibit the disconnection of water services for accounts in arrears, particularly for vulnerable residents, such as older people, individuals with medical issues or disabilities, and families with children. Cities must implement meaningful dispute resolution processes for customers to contest erroneous bills and address other concerns. To ensure that advocates can measure the effectiveness of any reforms, cities should collect and maintain data on rate increases, arrearages, shutoffs, and water liens, and ensure that this data is publicly available. Above all, municipalities must think critically about how their water and sewer practices, particularly related to billing, liens, and disconnection procedures, can disproportionately impact communities of color.

Reform is needed at the national level, too: the federal government has a program providing funding for heating and cooling services for low-income populations, called the Low Income Home Energy Assistance Program (LIHEAP), but no parallel program for water bills. The Water Justice Act, pending in Congress in 2019, would establish a program similar to LIHEAP for water bills for low-income families and communities facing environmental risks. S. 2466, 116th Cong. (2019); H.R. 4033, 116th Cong. (2019). Additionally, the Water Affordability, Transparency, Equity, and Reliability Act (the WATER Act), also pending in Congress, would generate $35 billion a year for water and sewer infrastructure upgrades, reducing at least some burden from customers to fund critical improvements. S. 611, 116th Cong. (2019–20); H.R. 1417, 116th Cong. (2019).

If federal, state, and local governments fail to implement these measures, civil rights advocates must answer the call, using the models from Shaw and Zanesville to challenge discriminatory municipal practices in court, like in Pickett. Litigation may be viable under various civil rights causes of action, including the FHA and 42 U.S.C. § 1983, which can remedy deprivations of constitutional rights. Regardless of whether litigation or policy advocacy is pursued, action must be taken to lessen racial discrimination in municipal services and promote access to affordable, clean water as a right that should be shared by all.

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Coty Montag

Ms. Montag is a Senior Counsel at the NAACP Legal Defense and Educational Fund, Inc. (LDF) in Washington, DC. She may be reached at cmontag@naacpldf.org. The views expressed in this article are those of the author and do not necessarily reflect those of her employer or any other entity.