The United States Court of Appeals for the Fifth Circuit has answered a question nobody wanted to have to ask, and its answer is now the law of three states. Sitting en banc, the court ruled 10 to 5 that Jackson, Mississippi residents suing over years of contaminated water had no constitutional claim, because the Constitution contains no right to clean drinking water. In the majority's words, quoted across the opinion's opening pages: "It is undisputed that the Constitution does not guarantee clean water."
The ruling, handed down this month and still reverberating through the coverage cycle, did more than end one lawsuit. It created an explicit split with the Sixth Circuit's decisions out of the Flint water crisis, and it leaves a city whose water failures drew national attention to the remedies that were already quietly doing the work.
The Case the Court Closed
Four Jackson residents sued the city, current and former officials, and an engineering contractor in 2022. Their complaint alleged that the city's water system produced water containing lead, E. coli, and other bacteria; that it violated the Safe Drinking Water Act; that it shut down and left residents without water for weeks at a time; and that dozens of boil-water notices followed. The residents said officials told them the water was safe while knowing it likely was not, and that children in the case have been diagnosed with lead poisoning.
The district court dismissed the constitutional claims in 2024. A three-judge Fifth Circuit panel partly revived them in November 2025, holding that the residents could pursue bodily-integrity and state-created-danger theories against the city. That revival mattered because the state-created-danger doctrine holds governments liable when they affirmatively place people in harm's way, and the panel had embraced it. The full court took the case en banc in February and erased the panel opinion. The en banc majority does not discuss the doctrine at all, a silence the dissent calls especially confounding. The September 4 decision is what stands.
What the Majority Held
The en banc majority, written by Judge Kurt D. Engelhardt and joined by nine other judges, treated the case as an attempt to invent rights. The opinion describes the plaintiffs as seeking "recognition of two new constitutional rights lacking any foundation in the history and tradition of our Nation," one to be free from exposure to contaminated water and one to accurate information from public officials.
On bodily integrity, the court held that the city's mismanagement of the water system is "wholly different from forced surgery, involuntary medicating and assault," the established anchors of that right. The court anchored the holding in DeShaney v. Winnebago County, the 1989 precedent holding that the Constitution does not require governments to provide services competently, and in Youngberg v. Romeo. On truthful information, it found no deeply rooted tradition of a constitutional right to accurate statements from officials during a public health crisis, citing the Second Circuit's post-9/11 rulings on air-quality statements. The court also held that even if the rights existed, the individual officials would have qualified immunity, because no controlling authority clearly established them.
The majority acknowledged the stakes directly, calling the deprivations the residents suffered grievous while holding that they infringed no deeply rooted right. The constitutional analysis and the human cost sit side by side in the opinion without pretending the first cancels the second.
The majority closed by pointing the plaintiffs elsewhere: tort claims in state court, elections, and petitions to representatives. The state-law claims were dismissed without prejudice, which means they can be refiled in Mississippi's courts. The constitutional door is shut. The courthouse door next to it is open.
The Dissent and the Split
Judge Catharina Haynes, joined by four colleagues, would have let the claims against the city proceed to discovery. The dissent observes that the complaint's facts "mirror in various ways one of the worst public health crises in recent American history," the Flint water crisis, and that bodily integrity is a longstanding due-process principle. At a minimum, Haynes wrote, the residents are "entitled to discovery on their sufficiently plausible allegations."
The more consequential disagreement is between circuits. In 2019, the Sixth Circuit's Guertin v. Michigan ruling allowed Flint residents' bodily-integrity claims to proceed against state and local officials, and in 2025 the same court followed that line in Mitchell v. City of Benton Harbor. The Fifth Circuit majority wrote that it is not bound by Guertin and not persuaded by it. Two federal appeals courts now apply the Fourteenth Amendment differently to the same set of facts: a public water system that failed the people it served. The split is not theoretical. The same alleged facts produce a constitutional claim in Michigan and Ohio but not in Texas, Louisiana, or Mississippi.
That kind of split is the classic invitation for Supreme Court review. Whether the plaintiffs petition, and whether the Court would take the case, is unknown. A Supreme Court that has been reluctant to expand implied rights in other contexts may not be eager to recognize a water right here.
The dissent closes with a procedural argument that is also a substantive one. Judge Haynes cites Judge Jeffrey Sutton's concurrence in the denial of rehearing in the Flint case, for the proposition that courts should be reluctant to shut down plausible constitutional claims before the facts are known. Discovery, in this view, is not a remedy; it is the minimum a constitutional system owes someone who alleges the state poisoned their water. The majority's answer is that no amount of facts can create a right the Constitution does not contain, so no discovery is owed.
Where Jackson Residents Can Still Get Relief
The constitutional ruling changes little about the day-to-day work of fixing Jackson's water, because that work does not run through this lawsuit. In 2022, the Department of Justice and the EPA sued the city under the Safe Drinking Water Act, and the resulting consent decree put the system under a court-approved third-party manager, JXN Water, led by Ted Henifin. The federal government now manages the drinking water system, a fact the opinion itself notes.
JXN Water's response to the ruling, via WAPT, was that the court answered "a legal question, not a values question," and that lead has tested below federal action levels since 2017. That engineering progress comes at a price: a court-approved rate increase in March 2026 raised the average monthly bill by about $8.88, to roughly $88, with further increases proposed for the following years, Capital B News reported.
The lead problem predates the litigation by years. State health department testing between 2010 and 2013 showed elevated lead in Jackson's water, the Clarion Ledger reported. The federal government's involvement also predates the ruling: the consent decree and the third-party manager were in place well before the en banc court spoke. The constitutional case was never the mechanism of repair. It was the mechanism of accountability, and it is that mechanism the ruling removed.
A second lawsuit continues on a different theory. The NAACP's Jackson branch and residents sued state officials in 2025 alleging racial discrimination in the distribution of federal water funds, and a judge ruled in May that the plaintiffs have standing, with other dismissal arguments still pending. Where the constitutional case is over, the statutory and equity cases continue.
What the Ruling Does and Does Not Settle
The Fifth Circuit has now stated, as clearly as any court has, that a broken public water system does not by itself violate the Constitution. That is a significant line in American law, and it will govern the residents of Texas, Louisiana, and Mississippi until another court or the Supreme Court says otherwise.
What the ruling does not settle is whether Jackson's water stays safe, whether the families harmed have a path to compensation, and whether the next water crisis produces the same answer. Those questions live in the consent decree, the state courts, and the rate filings, where they have lived all along. The constitutional case was the most visible fight. It was never the one doing the most work.
That is the ruling's strange legacy. The most visible fight produced the clearest statement of what the Constitution will not do, while the quiet machinery of consent decrees and rate filings kept the water running. For the children whose lead levels the lawsuit documented, neither result feels like victory. The law's answer to them is now fixed: seek compensation in state court, and seek safer water from the manager the federal government installed. The dissent would have let the claims proceed to discovery. Ten judges said the door is closed, and the split they opened with the Sixth Circuit is now the Supreme Court's decision whether to resolve.
The next water crisis will produce the same lawsuit somewhere else. Whether it produces the same answer now depends on the Sixth Circuit's continued resolve and, ultimately, on nine justices deciding whether deprivations this grievous without a constitutional remedy is the American rule.
Primary sources
- Sterling v. City of Jackson, No. 24-60370 (5th Cir. en banc, Sept. 4, 2026), for the holding, the vote, and the reasoning quoted and paraphrased here.
- The Hill, "Federal appeals court says clean drinking water is not a constitutional right," for the ruling's national framing.
- USA Today, "No constitutional right to clean water, federal court finds," for the ruling and its context.
- Capital B News, for JXN Water's rate increases, the EPA civil-rights determination, and the city's reaction.
- Department of Justice announcement of the Jackson consent decree, for the federal manager arrangement.
- WAPT, for JXN Water's response to the ruling.