By: Scott D. Wilson
The U.S. Constitution does not guarantee a right to clean drinking water or a right to receive accurate information from public officials, a divided U.S. Court of Appeals for the Fifth Circuit has ruled.
The decision affirms the dismissal of a lawsuit brought by Jackson, Mississippi, residents who alleged they were harmed by lead-contaminated drinking water. Sitting en banc, the Fifth Circuit concluded that the plaintiffs’ claims rested on substantive due process rights not recognized by the Constitution.
Writing for the majority, Judge Kurt Engelhardt stated that neither the Constitution’s text nor the nation’s history supports the recognition of such rights under the Due Process Clause. “The Constitution does not provide redress for every governmental wrongdoing,” Engelhardt wrote.
Counsel for the residents did not immediately respond to requests for comment.
Clarence Webster III, a partner at Jones Walker who represented the City of Jackson, described the ruling as “one of the most significant constitutional decisions the Fifth Circuit will issue this year.”
“We are pleased that the en banc court affirmed the City’s position and provided important guidance regarding the limits of constitutional liability,” Webster said in a statement.
The majority emphasized that residents retain alternative avenues of relief, including pursuing tort claims, electing officials committed to improving water system management, and advocating for legislative solutions.
The plaintiffs alleged that city officials knowingly permitted lead contamination in Jackson’s water supply, resulting in injuries to residents who consumed the water. The city has consistently denied those allegations.
In 2025, a divided Fifth Circuit panel revived the residents’ claim, concluding that they had plausibly alleged a violation of their right to bodily autonomy. That decision was later vacated when the full court agreed to rehear the case.
Engelhardt acknowledged the plaintiffs’ reliance on a constitutional right to bodily integrity but distinguished the circumstances from cases involving direct physical intrusions by government officials, such as sexual assault by law enforcement officers or the involuntary administration of medication to prisoners. The alleged mismanagement of a municipal water system, he wrote, is “wholly different.”
The majority further rejected the plaintiffs’ argument that public officials violated a constitutional right to accurate information. Although Supreme Court precedent recognizes certain due process rights grounded in the common-law doctrine of informed consent, Engelhardt concluded that those cases do not establish a general right to truthful information from government officials.
The court also held that, even if a constitutional violation had been sufficiently alleged, the defendant officials would be entitled to qualified immunity because no clearly established constitutional right was implicated.
Engelhardt’s opinion was joined by nine additional judges.
Judge Catharina Haynes authored a separate opinion concurring in part and dissenting in part, joined by four judges. Haynes argued that, at the pleading stage, the court was required to accept the plaintiffs’ factual allegations as true and should have permitted discovery to proceed.
“At bottom, the well-pleaded factual allegations in Plaintiffs’ complaint, which we must accept as true, mirror in various ways one of the worst public health crises in recent American history — the Flint water crisis,” Haynes wrote.
Haynes further contended that the plaintiffs adequately alleged a state-created danger claim, an issue she said the majority failed to address. Noting that other federal courts have recognized the doctrine, she criticized the Fifth Circuit for remaining “practically alone” in declining either to adopt or definitively reject it.
In her view, the state-created danger doctrine should be recognized, and the plaintiffs had plausibly alleged a violation of their constitutional right to bodily integrity.
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