In the science fiction movie Elysium, all of Earth is an urban wasteland. Set in 2154, one major city (Los Angeles) is a dystopian trifecta of crime, polluted air, and badly neglected infrastructure systems with deadly health impacts on its residents. The wealthy (and mostly white) have moved out of the cities and indeed beyond Earth to an orbiting space station where they can enjoy clean air, great and sanitary health systems, and abundant foliage.
Like parts of that movie, in 2023 urban cities throughout the United States face major health concerns arising from neglect of vital infrastructure—both drinking water and sewer systems. They face political and funding challenges given, in part, the suburban flight of many former residents. We focus on one such urban area, the capital city of Jackson, Mississippi (the City), and its recent woes with its water and sewer system. Inevitably, those woes led to lawsuits, a special court-appointed manager for the entire system, and charges and countercharges of racism and environmental racism.
Jackson, like many metropolitan areas, is faced with a declining population and currently has a relatively low average income per capita. According to the U.S. Census Bureau, Jackson’s population declined from the 2010 to the 2020 census by some 12%, and the Bureau forecasts a further population decline from 2020 to 2023 of another 5%. Some 83% of the population is Black and at least a quarter of the population is below the national poverty line.
During the week of August 29, 2022, the municipal water system for the City experienced a catastrophic loss of pressure, leaving many of its more than 160,000 residents without running water. Caused by flooding from the Pearl River, which induced failure of multiple water intake pumps at the City’s O.B. Curtis Water Treatment Plant, the loss of water pressure deprived city residents of the ability to use water for drinking, washing and showering, flushing toilets, and other necessary uses. The lack of water pressure also left the Jackson Fire Department ill-equipped to fight fires. Restaurants across the City were closed, and schools pivoted to virtual learning or closed altogether. Business and office buildings, air-conditioned by water-cooled systems, were temporarily shuttered amid Mississippi’s August heat. This collapse led to widespread publicity about the sources and history of prior water failures in the City. Emily Le Coz et al., Jackson Water Crisis Flows from Century of Poverty, Neglect, and Racism, Miss. Today (Nov. 7, 2022).
The governor of Mississippi declared a state of emergency and activated nearly 600 Mississippi National Guard members to distribute bottled and non-potable water from water tankers in an attempt to mitigate some of the effects of the crisis. In a single day during the outage, more than 1.1 million bottles of water were distributed to Jackson residents. On August 30, 2022, President Biden declared an emergency and ordered federal assistance to supplement the state’s response.
The combined federal- and state-level responses sought to provide water resources to affected residents while working to restore pressure to the system by expediting repairs to the City’s two water treatment plants. The U.S. Environmental Protection Agency (EPA), the Federal Emergency Management Agency, and the U.S. Army Corps of Engineers, joined by the Mississippi Emergency Management Agency, utilizing emergency management compacts with other states, and the Mississippi State Department of Health (MSDH), deployed personnel to the two Jackson area water treatment plants. With the use of temporary intake pumps and other equipment and repairs, water pressure within the City gradually increased and was substantially restored on September 6, 2022. On September 15, 2023, the nearly 50-day citywide boil water notice—put into place on July 29, 2022, after high turbidity levels were detected during routine sampling by the MSDH—was lifted.
State and federal assets remained in Jackson for months. EPA Administrator Regan visited the City in early November 2022 and conducted a community listening event. EPA separately launched an investigation into Mississippi state agencies and whether they had discriminated against the City by withholding funding of infrastructure improvement programs. Emily Pettus, EPA Leader Listens to Water Concerns in Mississippi Capital, AP Press, Nov. 15, 2022.
Separately, Governor Tate Reeves ended the state of emergency on November 22, 2022—after the state had incurred $13 million in obligations from its repair efforts—handing control over the water system back to city officials. In his November 22, 2022, press release announcing termination of the emergency, the governor proclaimed that “[t]he only remaining imminent challenge is the City’s refusal to hire routine maintenance staff, and that cannot constitute a state emergency,” highlighting the City’s long-term struggle to employ adequate staff to operate the water system, including Class A–licensed water operators. Both the federal Safe Drinking Water Act (42 U.S.C. section 300f et seq.) (SDWA) and regulations promulgated by the MSDH require a Class A–licensed operator to be onsite whenever the treatment plants are in operation—a 24/7 undertaking demanding special certified personnel.
Jackson’s water system—both the potable water and the sewer treatment system—has been plagued by long-standing problems, including regulatory compliance, finances, infrastructure, and staffing. For years, the system has faced financial hardship. Contributing factors include water billing and meter issues and nonpayment of delinquent water bills. The City also has pointed to a lack of sufficient state funding for the system that services the state’s capital city.
On March 27, 2020, following an SDWA inspection by EPA’s National Enforcement Investigations Center in February 2020, EPA “determined that conditions exist at the System that present an imminent and substantial endangerment to the persons served by the System” and issued an Emergency Administrative Order (Emergency Order) to the City. Emergency Administrative Order, Docket No. SDWA-04-2020-2300. In the Emergency Order, EPA noted numerous deficiencies in the system related to bacterial contamination and disinfection and required the City to develop an Alternative Water Source Plan (AWSP) that must include the City providing at least one gallon of potable water per day to every person served by the system if events occur that trigger the AWSP. The Emergency Order also established certain steps that the City must take if turbidity levels rise beyond allowable measurements or if the system experiences breaks in water lines or other loss-of-pressure events likely to cause contamination in the distribution system.
On May 11, 2020, EPA issued a Notice of Noncompliance to the City for violations observed during EPA’s February 2020 inspection, including the City’s failure to have a Class A–certified operator onsite at the system’s treatment plants at all times.
On April 27, 2021, EPA issued a second Notice of Noncompliance to the City, citing the system’s excessive contaminant level for haloacetic acids (HAA5) over two consecutive quarters and its failure to install optimal corrosion control treatment at the J.H. Fewell Water Treatment Plant in the time period established by the MSDH.
Later, on July 1, 2021, EPA and the City entered into a consent order, under which the City agreed to provide EPA with a “comprehensive staffing plan” that identified how the City would ensure that a Class A operator is onsite at both treatment plants at all times and to implement the tasks described in the City’s “comprehensive equipment repair plan” approved by EPA, including hiring two new operators for the O.B. Curtis Water Treatment Plant.
On January 25, 2022, EPA issued a third Notice of Noncompliance to the City, finding that the City had not repaired or replaced an electrical panel at the O.B. Curtis Water Treatment Plant that was damaged by fire or provided to EPA the required written response identifying corrective actions and timeframes to implement such actions.
The system’s problems have spurred multiple lawsuits. An initial class action filed on September 16, 2022, claimed the water system had left over 150,000 residents without safe water. Complaint for Injunctive Relief, Sterling v. City of Jackson, Mississippi, Case No. 3:2022cv00531 (S.D. Miss. Filed Sept. 16, 2022). Even prior to the August 2022 crisis, a separate lawsuit was brought by attorneys purportedly representing hundreds of minor residents of the City—some of the same attorneys who reached a more than $600 million settlement with the City of Flint, Michigan, over that city’s water problems sued the City, the MSDH, and other parties in federal district court. R. Reilly, Class Action Lawsuit Brought Against Jackson Water Crisis, Miss. Clarion Ledger, Sept. 19, 2022.
On November 29, 2022, the U.S. Department of Justice filed a lawsuit in the U.S. District Court for the Southern District of Mississippi against the City, arguing the City has “violated various specific requirements of the SDWA and administrative orders issued by EPA concerning the City’s public water system.” United States v. City of Jackson, No. 3:22-cv-00686 (S.D. Miss. filed Nov. 29, 2022). According to the DOJ, “contaminants are in or are likely to enter the [c]ity’s public water system” and “[n]otwithstanding the actions that the [s]tate and [c]ity have taken or will take to address the emergency situation, an imminent and substantial endangerment to the health of persons continues to exist.” The complaint asserted a variety of claims related to specific contaminants and the City’s overall failure to comply with prior EPA orders and the earlier consent order.
Contemporaneously with filing its complaint, the DOJ proposed a negotiated Interim Stipulated Order (Stipulated Order). The Stipulated Order—designed to be a temporary measure to remedy the system before the parties litigate the matter to conclusion or enter into a consent decree—was signed by Judge Henry T. Wingate on November 29, 2022, and appoints a third-party water manager (Manager), Ted Henifin, to operate the system in accordance with state and federal laws. Id. at Doc. 6. The Stipulated Order sets out the duties and obligations of the Manager and the City, under which the Manager is empowered to do the following: operate, maintain, manage, and control the system and water billing office; direct and hire staff and agents, including accountants, consultants, contractors, engineering firms, and counsel, and even City employees and City contractors; respond to notices of violation, information requests, and lawful orders regarding the system from local, state, and federal governments; make such purchases he deems necessary; develop a financial management plan for the system and billing office; and, among other duties, adjust water billing rates in coordination with the City’s governing authorities. If the governing authorities refuse, the Manager may adjust rates unilaterally. As of November 2023, the interim Manager, Mr. Henifin, remains in place and running the City’s current water system.
On September 30, 2023, Judge Wingate entered a separate Stipulated Order in a prior lawsuit under the federal Clean Water Act (42 U.S.C. section 1251 et seq.) (CWA) appointing Henifin as the interim third-party manager over the City’s long-troubled sewer system. In this role, Henifin is charged with overseeing a system that has been under consent decree for more than 10 years, with no substantive improvement.
The slow but steady urban collapse of Jackson’s public water system hit an apex in the August 2022 water system shutdown, leaving many scrounging for bottled water distribution points and causing major health impacts. A Water Crisis in Mississippi’s Capital Is a Harbinger of Worse, The Economist, Sept. 6, 2022.
The 2022 water shutdown suggests what former Vice President Al Gore dubbed “an inconvenient truth,” but this particular problem leads to three inconvenient truths. First, this problem of decaying urban infrastructure for water systems goes far beyond Jackson and occurs throughout many portions of the United States. As one news source noted: “The scale of this problem extends well beyond Jackson. Nearly 21m Americans drank water from communal systems (including schools, hospitals and other public places) that did not meet safety standards in 2015, the latest year for which data are available. From 2014 to 2016 tens of thousands in Flint, Michigan, were exposed to lead poisoning. . . .” Id.
Nor are Black citizens the only minority or economically disadvantaged group particularly impacted by such infrastructure failures. As Justice Gorsuch recently noted as to the Navajo reservation in the Southwest, a tribal territory of some 300,000 persons: “In some parts of the reservation, as much as 91% of Navajo households ‘lack access to water.’” Arizona v. Navajo Nation, 599 U.S. 555, 580 (2023) (Gorsuch J., with whom Sotomayor, Kagan & Jackson, JJ. join, dissenting).
The second inconvenient truth is that the water supply collapse in August 2022 is a multifactorial problem. The collapse resists the easy temptation of politicians from any side to categorize it as either a simple binary result of “City neglect and incompetence” or “State environmental racism.” Initially, the immediate percipient cause of the problem was an overflow of the Pearl River. River overflows do occur, and, historically, the Pearl River has exceeded its banks and impacted Jackson and surrounding communities. More critically, however, the failure to maintain adequate water system infrastructure to deal with foreseeable overflow events is one that plagues a number of American cities.
Consider the example of Marin County, California, an Elysium-like zone with a large proportion of wealthy white citizens living in expensive hillside estates amid large redwood trees. Even this community of elite residents has experienced sewage overflows due to significant weather events. In 2009, Marin’s regional wastewater treatment plant, located in the town of Mill Valley, experienced very heavy rainfalls and discharged some 2.5 million gallons of raw sewage into the hallowed San Francisco Bay, with accusations that the sewage district there was holding onto nearly $550,000 of funds that might otherwise have been expended on infrastructure repairs. See San Francisco Bay Sees Sewage—Over and Over, Associated Press, Feb. 26, 2009.
The third inconvenient truth is that water supply pipelines and public sewer lines are generally not visible to the public and therefore generate little political interest, let alone voter enthusiasm. The last time that a politician ran on a platform of “Well, I helped improve the sewer infrastructure” was arguably the last campaign that individual ran at all. Some 140 years ago, Henrik Ibsen observed that those who question the quality of a popular local water source can find themselves homeless and without a job. Henrik Ibsen, An Enemy of the People (1882). EPA itself bears some responsibility for this failure to support funding of water and sewer infrastructure systems. Since the heyday of the initiation of the Clean Water Act in 1972, federal investment in water infrastructure has declined as a portion of total infrastructure funding. Am. Soc’y Civ. Eng’rs, 2021 Report Card for America’s Infrastructure at 36.
To be sure, there may now be more funds available with the federal attention now focused on drinking water, at least in Jackson. In June 2023, President Biden announced the first tranche of some $115 million directed to Jackson’s water infrastructure needs. Statement from President Joe Biden on Funding for Jackson, Mississippi’s Water Infrastructure (June 6, 2023).
The appointment of Henifin as Manager of the City’s water system provided some hope that a platonic-type outside guardian could use his expertise to repair and rehabilitate the system. At the same time, the appointment could not paper over the glaring structural weaknesses in the ultimate management of Jackson’s water supply system. The sniping between Mississippi’s governor (a white Republican) and the City’s mayor (a Black Democrat) continued even as Henifin was appointed. Governor Reeves was quoted as stating that this appointment was “excellent news” because Jackson Mayor Lumumba “will no longer be overseeing the city’s water system.” According to news reports, the governor made no efforts to “hide his disdain for the leadership in Jackson during the water crisis.” Ross Reily, Jackson Water System Handed to the “Elon Musk of the Water Utility Industry,” Miss. Clarion-Ledger, Nov. 30, 2022. Mayor Lumumba praised the stipulation leading to Henifin’s appointment as part of a “collective effort that ensures Jacksonians will not be forgotten.” Id. The City has long been at odds with the Republican governor and the Republican-dominated legislature over funding and local governance issues, and recent state legislative initiatives have sparked charges and countercharges of racism, incompetent local governance, and worse. Michael Wines, In Mississippi’s Capital, Old Racial Divides Take New Forms, N.Y. Times, Feb. 20, 2023.
These underlying tensions were reflected in a subsequent order by the federal district judge, Judge Wingate, who presides over the lawsuit and Henifin’s appointment. After hearing from citizens at a status conference, Judge Wingate wrote in part that his critics were motivated by racism and discomfort with any outsider: “‘Ted is white,’ they [his critics at the hearings] protested. Jackson, they said, is more than 80% African American. As such, they reasoned, Jackson should have as its water savior an African American and, more, someone from Jackson itself. These critics inexplicably did not appreciate the inexcusable impact of these racially-charged words uttered in a deep-South State they have attacked all their lives for racism.” [Court’s] Response to Status Conference at 2, Doc. No. 38, United States v. City of Jackson, Mississippi, No. 3:22-cv-00686-HTW-LGI.
Even with the exceedingly broad authority provided under the Stipulated Order from last November, the Manager’s charge to repair the drinking water system, as augmented this past month with a charge of managing the City’s sewer system, is a tall order—a task that includes replacing countless miles of narrow, antiquated distribution lines. As one regional news source noted, the initial construction notice for much of the current lead-containing pipes was posted in a Jackson newspaper in 1925, meaning that they are now nearly 100 years old. Ross Reily, Class Action Lawsuit Brought Against Jackson Regarding Water Crisis, Miss. Clarion Ledger, Sept. 19, 2022.
Some relief, at least in monetary terms, appears on the horizon, as the U.S. Congress has approved $600 million for capital improvements and other operational costs for the system. According to the City, nearly $800 million in total grant funds have been obtained to repair the system. This cash infusion certainly changes the landscape of transformation that can potentially be seen in the system over the coming years.
This monetary support, however, still leaves a troubling paramount concern. A one-time cash infusion for this City leaves unresolved the larger issue of crumbling infrastructure systems for many other cities across the United States. EPA recently reiterated these national infrastructure concerns in a new report to Congress that put the estimated 20-year costs for drinking water system needs at some $625 billion. EPA, Drinking Water Infrastructure Needs Survey and Assessment, 7th Report to Congress at 6 (Sept. 2023). Although the City of Jackson may be able to resurrect its system with the significant monetary support, it leaves open health and safety concerns arising from aging pipe corrosion and deteriorating infrastructure in other cities in the country. Without political support, fiscal management, and technical management, Americans will find the promises of the SDWA and the CWA left unfilled.
