by By Sharmila L. Murthy*
A growing number of water crises across the United States underscore the need to ensure that all Americans have access to safe and affordable water for drinking, sanitation, hygiene and other basic needs. From lead-contaminated water in Flint and Jackson to the massive water shut-offs in Detroit and Baltimore, affected residents have demanded that water be treated as a basic right. The U.S. never ratified the International Covenant on Economic, Social and Cultural Rights—the relevant human rights treaty under which such a right exists in international law—and it would be difficult to establish this as an affirmative right under our existing constitutional jurisprudence. However, a right to safe and affordable water should be treated as what Cass Sunstein describes as a “constitutive commitment” deserving of legislative protection.
In The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever, Sunstein coined the term “constitutive commitment” to describe statutory rights that hold such a special status in American society that they are akin to constitutional rights. For example, most people would assume that they have a constitutional right not to have their private employer discriminate against them, even though this right was created by the Civil Rights Act of 1964. Social Security is another key example. Because water is so vital to basic survival, household water access should fall within this category as well. To realize a new constitutive commitment to water, national legislation needs to be enacted.
We have national programs to ensure that low-income individuals can meet their basic needs for food, shelter and medical care, and pay their energy and telephone utility bills. No similar program exists for household water. Municipalities also need additional funding to help them bear the increasing costs associated with providing safe water with old infrastructure. This is not a question of water scarcity, but of economics. Michigan, for example, is located next to the Great Lakes, which is the fifth largest supply of freshwater in the world. Because poor communities of color disproportionately bear the burden of poor water access, it is also a question of equality and environmental justice. For example, as many have already asked, if Flint were rich and mostly white, would the state have responded more quickly to concerns about lead in the water?
A strong business and moral case exists for making water and wastewater services affordable. Concerns about moral hazard and free-riding exist, but as with any government program, a water affordability program can be structured to reduce these risks. According to Robert Colton, an expert on utility affordability programs who has advised cities like Detroit, it is better for a utility to collect 70% of a $90 bill than 60% of a $100 bill. A utility can more effectively manage its operations if it has a consistent revenue stream, avoids bad debt associated with nonpayment, and does not have to expend resources on collecting from those who are chronically delinquent because of poverty. Families struggling to pay water bills must make trade-offs in terms of paying for other basic needs, such as food and healthcare. If a home does not have running water, it can be condemned and the children can be removed by child protective services. Society bears these expenses in terms of lower economic productivity, additional resources for the social services system, and the fall-out associated with evictions and foreclosures. Investing in a water affordability plan can avoid these very real costs.
The time has come for us to pass national legislation to ensure that every American has safe and affordable access to water for basic human needs.
* Sharmila L. Murthy is an Assistant Professor at Suffolk University Law School. This blog is based on a law review article entitled A New Constitutive Commitment to Water forthcoming in the Boston College Journal of Law & Social Justice (2016).