Human Rights at Home Blog

New Report: Data on Tap: Realizing Human Rights through Water Utility Reporting Laws

Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law, Data on Tap: Realizing Human Rights through Water Utility Reporting Laws (May 2023). Excerpts below.

Local water utilities’ policies regarding access, pricing, payment schedules, shutoffs, and debt collection have significant impacts on the individuals and communities that these utilities serve. In recent years, a distinct legislative trend towards mandated water policy transparency has been gaining momentum across the country. Simultaneously, an international push for affordable water access has been spearheaded by the United Nations as part of its Sustainable Development Goals. While these laws represent an important movement towards realization of the human right to water, they also work towards securing a less discussed human right: access to government- held information.

The Human Rights Committee guidance noted that Article 2 of the International Covenant on Civil and Political Rights (ICCPR) had been previously interpreted by the committee to mean that all persons should receive information from the State regarding their covenant rights. Just a year prior the UN General Assembly adopted a resolution unequivocally stating that water access is essential to the enjoyment of the right to life protected by numerous human rights instruments, including the ICCPR. Thus, as water is a right protected by the ICCPR, there is a right to receive information about water policies from the state. The United States has ratified the ICCPR with no reservations related to Article 19, and as such is obligated to recognize the right to access information embodied within that section.

The human right to information is more expansive. It obligates government to take positive actions to share information. Access to government-held information is often the only way to determine the presence of inequities and inadequacies in a government’s support for human rights. Rising water costs, the Covid-19 pandemic, and the widening income gap in the U.S. have combined to spur a new legislative focus on water accessibility and affordability. Amidst ongoing calls for government responses to racial inequities, some state legislatures began to introduce requirements aimed at collecting data to document the prevalence and geographic spread of service disconnections. As of February 2023, six state legislatures have considered legislation requiring data collection and public reporting by water utilities. Several of these initiatives have resulted in new laws requiring additional reporting and information-sharing with the public.

The introduction and implementation of water utility reporting laws represents an important shift towards greater recognition of the human right to access information. If the promise contained in the UDHR and ICCPR of a right to access information is to be fully realized within the United States, then governments at the federal, state, and local levels must take steps to proactively make critical information available. The enactment of more, and more robust, water utility reporting requirements will ensure that recent progress continues while at the same time further ensuring realization of the human right to water.

Imagine a Day Without Water 2022

From Martha F. Davis, Co-Editor.

 

Today is the annual "Imagine a Day Without Water" Day of Action.

 

To promote greater attention to water affordability and the human right to water for ALL, Northeastern Law School's Program on Human Rights and the Economy has today issued a Briefing Paper: How Five Creative Water Utilities Are Assisting “Hard-to-Reach” Renters as Water Rates Rise.

 

Rising water prices nationwide affect everyone, but the impact on renters is often obscured and forgotten, as they often pay for water prices through rent increases.  Ostensibly neutral on its face, the targeting of water assistance to homeowners is an example of structural racism, since the racial housing gap, the history of redlining and other instances of race-based housing discrimination means that people of color are disproportionately renters.

 

A handful of water utilities around the country have prioritized the assistance to renters, taking different approaches to the problem of assisting water consumers who are not themselves paying water bills. This Briefing Paper highlights the mechanisms adopted by these utilities, in hopes of spreading the word that there are viable approaches to increasing water equity for renters.

New Article: Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism

Martha F. Davis, Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism, 52 Seton Hall Law Review 1461 (2022). Excerpted below (citations removed).

        “It is not just far away locales where water access is wielded in this way. In the United States, Black and Brown people often bear the brunt of such policies and practices. For example, for decades, a predominantly African American neighborhood in Zanesville, Ohio, was denied a connection to the city’s water system—an abuse of power that jeopardized public health and demeaned the community until a 2002 civil rights complaint and a federal lawsuit forced a change. In Detroit, Michigan, beginning in 2014, tens of thousands of low income people, primarily Black, found their water shut off for nonpayment; many of those affected speculated that the city’s goal was not merely to collect outstanding funds, but to compel low income residents to leave their homes and make way for new, more lucrative (and whiter) development.

        Sometimes the control of water—and the racial impacts of that control—are more subtle, reflected in administrative inaction, buried in complex bureaucratic structures, or even framed as positive environmental initiatives. The diffusion of responsibilities for water administration between different levels of government can further obscure discriminatory impacts that would be more visible in a unified system. Neutral-sounding terminology may also hide the racial realities.

        This Article argues that the complexities of household water billing combined with the indifference of utilities and government authorities to the needs of “hard-to-reach” water consumers—primarily renters in multi-family dwellings—have left many low income, disproportionately minority tenants, excluded from programs designed to help with rising water and wastewater expenses.”

Celebrating World Water Day by Calling for Respect for Our Environment and Indigenous Communities

photo by Caroline LaPorte, Anishinaabe, Descendant and Associate Judge, Little River Band of Ottawa Indians; Director, Indigenous Safe Housing Center, NIWRC

By Cameron Ewing (Legal Intern), Samantha Johnson (Legal Intern), Braelyn Saumure (Student Fellow), and Tamar Ezer (Acting Director), Human Rights Clinic, University of Miami School of Law

The right to water is fundamental. As the UN General Assembly recognized, “the right to safe and clean drinking water and sanitation” is “a human right that is essential for the enjoyment of life and all human rights.” Victoria Sweet from the White Earth Band of Ojibwe echoed, “the right to resources and the right to water are critical to the right to life.”

Today, as we celebrate World Water Day, we must take a hard look at how we’re treating the environment, as well as Indigenous communities who are frequently its defenders. All too often, the construction of gas pipelines threatens the availability, accessibility, and quality of water, required under international human rights law.

Moreover, human rights law recognizes a link between the right to water and culture. While domestic uses of water take priority, the UN Committee on Economic, Social and Cultural Rights affirms the importance of water for “enjoying certain cultural practices” and securing a livelihood. Non-consumptive uses of water crucial to Indigenous communities include its centrality in a biological habitat, its spiritual value as a source of healing, and its aesthetic value.

Indigenous advocates point to the environmental degradation pipelines cause on Indigenous lands. Angeline Cheek, a Fort Peck tribal member and ACLU organizer in Montana, stated, “pipelines cross our reservations, causing destruction to our environment and our people. We can’t live without water, and you cannot replace a life.” A teenage Indigenous protest leader explained, “When the pipeline breaks, it would not only affect us as a people, but the animals and aquatic life would be impacted too.  Basically, everything that my people value and care for is at great risk of being harmed.”

The construction and operation of the pipeline also brings violence, including sexual violence, against members of nearby Indigenous communities. The hundreds—or even thousands—of male transient workers brought in to work on the pipeline construction, often housed in temporary housing communities referred to as “Man Camps,” have targeted Indigenous communities and women. Studies of the Bakken oil region have noted a 75% increase in sexual assaults and a 53% increase in violence committed by strangers that coincided with the oil boom and the influx of “well-paid oil and gas workers, living in housing units referred to as Man Camps.”

Even worse, these perpetrators often face no repercussions for their actions. Local infrastructure is strained from the influx of workers, without the provision of increased resources to health services and law enforcement, who already have large geographic regions to cover. Additionally, there is an enforcement loophole with Indian tribes lacking jurisdiction to prosecute non-Indigenous defendants. This requires reliance on the federal government, which often fails to take action. There is thus a general lack of accountability, and crimes are committed with impunity.

While the Violence Against Women Act (VAWA) helps address some jurisdictional problems, this legislation does not go far enough to protect Indigenous Peoples from non-native offenders. VAWA only authorizes “special domestic violence criminal jurisdiction” to tribal courts for offenders who commit “(1) domestic violence, (2) dating violence, or (3) violate a protective order.” These limitations mean that the non-native offender must have connections to the tribe, which is often not the case for violence perpetrated by workers at Man Camps given their temporary nature. Furthermore, the special jurisdiction does not include the crime of sexual assault when unconnected to domestic or dating violence.

Halting the Keystone Pipeline is a step in the right direction. The pipeline was set to traverse nearly 875 miles of rural land in the Northern U.S., crossing major waterways, such as the Missouri and Yellowstone Rivers, and passing through Rosebud Sioux and Fort Belknap Indian Community lands in Montana, threating sensitive ecological and cultural areas. Years of legal battles and protests from Indigenous Peoples were finally heard when the Biden Administration’s Executive Order conceded that the Keystone XL Pipeline “disserves the U.S. national interest” and revoked its permit, ending construction.

Indigenous Peoples have widely praised the Order. Angeline Cheek noted, this Order “is about honoring our ancestors’ treaties and protecting our natural resources.” Faith Spotted Eagle, founder of the Brave Heart Society and a member of the Ihanktonwan Dakota nation, remarked, “victory ending the KXL pipeline is an act of courage and it gives tribes and Mother Earth a serious message of hope for future generations as we face the threat of climate change.”

Now, we need to build on Biden’s Executive Order and put in place better policies. International human rights law requires the “free, prior, and informed consent” of Indigenous Peoples as a prerequisite for use of Indigenous land and resources. Meaningful consultation is critical, but it is not enough. There must also be consent. Additionally, Indigenous Peoples need the resources to invest in infrastructure, as well the authority to prosecute non-Indigenous perpetrators on their lands, eliminating the jurisdiction loophole.

As we celebrate World Water Day, let’s move towards a greener and safer future, respecting both the environment, as well as the communities physically and culturally connected to the earth’s resources.

News: Access to water is a human right. When will the U.S. government agree?

Martha F. Davis, Access to water is a human right. When will the U.S. government agree?, WBUR (Nov. 3, 2021). Excerpt below:

“Water is life, and water policy should be a central concern of nations as they gather for the COP26 in Glasgow this week. The need to prioritize water is all around us: more flooding and drought, the growing incidents of water contamination and rising costs of maintaining potable water for drinking, cooking and hygiene.

For the first time at a U.N. climate conference, concerned members of the water sector — governments and non-governmental partners — have come together to sponsor a Water & Climate pavilion where attendees can hear from experts, conduct side discussions, network and engage with youth activists around water issues. The stated intent is to develop a ‘unified voice on the role of water in meeting the goals of the Paris Agreement and to support ambitious and science-based global climate action.’

Unfortunately, the United States has often been on the sidelines during international discussions of water challenges.”

Baltimore and Affordable Water Advocacy

Last month Baltimore City Council passed the Water Affordability and Equity Act.  Baltimore residents experienced sharply rising water.  The rising cost attributed to the City's infrastructure work geared at ensuring clean water.  Both owners and tenants were affected by the high cost of water.  Low-income tenants were particularly hard-hit when the terms of their tenancy made them responsible for water costs.  Particularly troubling were evictions caused by non-payment of the water bills yet tenants were unable to dispute excessive bills because the bills were in the landlord's name.  

The act provides four specific forms o relief for tenants.  Tenants will have direct access to past and present water bills; lease must state specifically if tenants are responsible for payment of water or sewer costs; renters will have access to a Water For All Discount Program; a new Water Advocacy and Appeals has been established as a dispute resolution pathway for tenants to resolve water payment disputes and obtain protection from eviction.

The human right to water has been a frequent topic on this blog.  Recently Martha Davis wrote a post on the  US reluctance to agree that the water is a fundamental human right.  Also referenced is the report Closing the Water Gap.  The report addresses advocacy efforts in California.  For those working on affordable and clean water the California and Baltimore experiences may provide some guidance.

 

Water Affordability Crisis Continues in Baltimore

On January 9, the Baltimore City Board of Estimates approved a 30% hike in water rates to be implemented over a three year period.  Food &  Water Watch decried the move, noting that "[a] typical Baltimore household will see their water and sewer bill, excluding stormwater fees, increase from $982 for this fiscal year to $1,284 by fiscal year 2022."  Stormwater fees are generally substantial, sometimes as much as the water fees, so would add considerable cost to this package.

This rate hike adds additional urgency to the water affordability proposal recently submitted to the City Council by the Council President.  The pending law would create a new water affordability plan that would establish income-based billing and cap water fees at 3% of household income, the generally-accepted level internationally.   City Council President Young recently explained and defended the proposed Water Accountability and Equity Act in an op-ed in the Baltimore Sun.

As water rates continue to rise across the country, water districts must take these issues seriously and develop creative solutions to ensure that acceptable levels of water for drinking and sanitation are available to all.  With the pending Water Accountability and Equity Act, the Baltimore City Council has the opportunity to protect this fundamental human right of Baltimore residents and to serve as a model for other cities that are confronting their own water affordability crises. 

 

Standing Rock and the Right to a Fair Trial

Editors' Note:  The HRAH Blog welcomes Lauren Carasik, Director of the International Human Rights Clinic at Western New England School of Law. Lauren, who works with the Water Protector's Legal Collective, writes this report.

by Lauren Carasik

The Standing Rock Sioux Tribe and its supporters have largely faded from view since the Department of the Army declined to issue the easement for the Dakota Access Pipeline (DAPL) to drill under the Missouri River on December 4. The agency said it would prepare an Environmental Impact Statement (EIS) to evaluate alternative routes for the pipeline, assess the pipeline’s environmental and cultural impacts, and, notably, include an analysis of the Standing Rock Sioux Tribe’s treaty rights. Yet more than a month later, the Army Corps has not published a Notice of Intent to Prepare an EIS, prompting advocates to call on the Corps to begin the process without delay. The sense of urgency is motivated by the expectation that the incoming administration will act quickly to remove impediments to the pipeline’s completion. President-elect Donald Trump has indicated his support for the DAPL and other energy infrastructure projects, including the Keystone XL Pipeline. Rick Perry, Trump’s choice to lead the Department of Energy, recently resigned his position on the board of the DAPL’s developer, Energy Transfer Partners, and Scott Pruitt, tapped to lead the Environmental Protection Agency, is a leading opponent of environmental regulations. Adding to the dismay, the Senate recently elected John Hoeven, (R-ND), a pipeline supporter, as chair of the Indian Affairs Committee. Fearing a government hostile to the interests of DAPL opponents, activists have redoubled efforts pressuring the project’s financiers to divest.

Meanwhile, as the New Yorker notes, the criminal cases against nearly 600 water protectors arrested in connection with the protests are becoming increasingly contentious, at a time when many defendants whose cases are moving forward are still unrepresented by a lawyer.   The shortage of defense attorneys admitted to practice in North Dakota prompted the Water Protectors Legal Collective (WPLC), to submit a petition in December asking the North Dakota Supreme Court to temporarily ease the rules for admission to practice law in the state. Currently, out-of-state lawyers must either apply to be admitted to the North Dakota bar pro hac vice or apply for reciprocity, both of which still require the continued participation of in-state counsel. Among those submitting comments in support of the petition were nearly 200 law professors, who wrote that “We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld.  The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process and equal protection that constitute the cornerstones of the rule of law.”

Compounding concern about fair trials, Acting Morton County State’s Attorney Ladd Erickson has evinced his hostility to the arrestees, including by resisting discovery requests and filing a motion to require public defenders to keep track of costs and expenses so that the state can seek reimbursement from defendants, suggesting that their right to counsel is contingent on the nature of and motivation for the crimes for which they are charged. Erikson argued that “Each protester attack on our police officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally money – all to be focused on multiple issues of national discontent… Most protest criminal defendants are simply props for videos of staged events.” He further said that “Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab.” Erickson’s argument apparently persuaded Judge Bruce A. Romanick, who presided over the first criminal trial: he ordered the two water protectors convicted in December to repay $500 in costs.

WPLC president Brandy Toelupe called Erickson’s characterizations inflammatory, and “intended to poison local jury pools to prevent fair trials and to provide cover for his mass overcharging and false charging of arrestees, dearth of evidence, and refusal to comply with local and Constitutional requirements for producing required discovery in these cases.”

Standing Rock Tribes and the IACHR

Standing Rock tribal members protesting the pipeline placement have petitioned the Inter-American Commission on Human Rights.  According to a report on International Law Grrls, "The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic – UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR."

Among the relief sought is a request to end state violence at the protest site and ensure the safety of those engaging in "peaceful prayer."  The Standing Rock website has information on the environmental and other issues as well as a link to the petition.  A copy of the petition may be found here.  

While the press was prompt in announcing that on December 4, the Army Corps or Engineers determined that it would not grant a permit for the pipeline route to include running underneath the local tribe's water supply, the connrection to the power of the tribes' IACHR  petition was not reported.

 

 

 

The Consequences of Clean Water Deprivation

Flint Michigan is undergoing an outbreak of infectious disease.  Shigellosis is a contagious disease that causes fever, stomach pain and diarrhea.   Since the city of Flint and the state of Michigan began sending lead contaminated brown water through the city water pipes, the residents have taken measures to avoid using local water. 

Clean water has been distributed at various points for city residents.  Along with the water, residents were given "baby wipes".  While the wipes have the ability to remove dirt, chlorinated water used with traditional soaps are more effective in eliminating harmful bacteria.  The inability of residents to access clean municipal water is seen as the source of the infectious illness.  But Flint residents, understandably, do not trust the water being provided by the city.  While many residents have filters on their faucets and showers, hot water reduces the life of the filters.  The residents' ability to afford frequent filter replacement is limited.

This is the second outbreak of infectious disease experienced in Flint.  Two years ago, the residents saw an outbreak of Legionnaires' disease.

The human right to clean water, the most essential ingredient in human survival, remains a low priority in many US cities, with Flint evidencing the consequences.

 

 

A Tale of Two Judges: Confronting Water Issues in Michigan

by Martha Davis

Yesterday, in a decision that has not yet been widely reported, the federal district court in Detroit affirmed the bankruptcy court's dismissal of a citizen challenge to the city's water shutoffs.   With the charged atmosphere around water in Detroit, it is perhaps no wonder that the judge deciding the case did not hold oral argument.  However, the absence of an oral argument on the issue compounded feelings that the result was inevitable and that the court had its mind made up before the papers were even filed.

In general, the court repeated and reaffirmed the lower court's conclusions.  However, the district court spent considerable time discussing whether a delinquent commercial customer is "similarly situated" to a human being for purposes of an equal protection claim.  The plaintiffs had alleged that the dissimilar treatment between corporations and individuals constituted an equal protection violation.  According to the court, however, the comparison must be made between an individual and another individual, not between a commercial entity and an individual -- this despite the extensive and growing case law concerning corporate "personhood" for purposes of the Bill of Rights.  Though amici to the plaintiffs had submitted an extensive brief on the relevant international law and its persuasive significance, the decision did not even mention that issue.

The plaintiffs must now decide whether to seek further review before the 6th Circuit Court of Appeals. In the meantime, local activists continue to push for adoption of an affordability plan -- an effort that becomes even more important in the wake of this federal district court decision. 

Interestingly, a decision from a local Michigan judge in early August took a completely different approach.  Considering the water rate crisis in Flint, Michigan, the court there ruled that rate hikes must be rolled back and enjoined further water terminations.  At the end of August, the judge allowed the case to go forward as a class action, a move which reportedly brought Flint officials to the settlement table for the first time.  On September 17, the state appellate court denied the city's request for a stay of the initial order, essentially establishing a moratorium on water terminations.

A foundational principle of federal courts is that they can transcend local politics and render unbiased rulings.  But in Michigan, it appears to be the state court judge rather than the federal one, applying the law fairly but also responsive to the people and savvy to the politics, who is able to move toward justice.

USHRN Takes the Right to Water and Sanitation to a Human Rights Tribunal

The critical need for affordable, fresh drinking water has been the subject of several posts on this blog.  Now the US Human Rights Network announced that on July 28th it, along with twenty other organizations and individuals, requested a hearing with the Inter-American Commission on Human Rights on the right to safe drinking water and sanitation in the U.S.

Among concerns, the letter requesting a hearing addressing water shutoffs in Detroit, Baltimore and Boston.  The letter addresses concerns around contamination and lack of sanitation in rural areas as well, namely the San Joaquin and Salinas Valleys of California along with the Black Belt of Alabama.  The disparate impact on African Americans and Indigenous peoples is documented for the Commission.

Rebecca Landy of the USHRN is the point of contact for the Commission.  We look forward to her periodic updates on this important development.

Watch for more information on Northeastern Law's conference "Tapping into the Human Right for Water", being held on November 5 and 6. 

 

 

 

Teaching Detroit

Teachers everywhere look for vivid and multifaceted case studies to drive their lessons home.  Tragic as the situation is for residents of Detroit, the events of the past year -- the city's bankruptcy, the municipal water shut off, the UN Special Rapporteurs' efforts to intervene, the local organizing on the ground -- provide an excellent case study for teaching about the human right to water in particular and the status of economic and social rights in the U.S. more generally.

There is plenty of reading material that can be assigned as background for this case study, including the series of letters submitted to the UN Special Rapporteurs, the resulting UN statements, and the reports on the bankruptcy court's bench ruling rejecting a human rights analysis. 

For teachers who want to provide additional context while adding some visuals, a new series of two reports on RT America (Russian television) are particularly noteworthy.  The RT series Breaking the Set, hosted by alternative journalist Abby Martin, has just posted two 30-minute segments focused on Detroit.  In the first segment, titled Extinguishing the Homeless and Shutting Off Human Rights, Martin goes on the scene in Detroit to interview residents about the impact of the water cut-offs, including an extensive discussion with Beulah Walker, a leader of the Detroit Water Brigade.  The second segment, titled Bankrupcy Dictatorship and Foreclosed Futures, includes a fascinating driving tour of Detroit's fragile neighborhoods and abandoned factories, and in-depth interviews of two Detroit activists -- Rev. D. Alexander Bullock and Michele Oberholtzer -- who are working to address fundamental inequalities in the city.  In both segments, Martin asks repeatedly about the human rights frame, pressing the activists on how such a frame might be meaningful in the Detroit context.  The answers are telling and provide provocative fodder for classroom discussion about whether and how human rights matter in the U.S.

Martin closes the second segment by expressing a strong point of view about the national, state and municipal priorities which have allowed Detroit to sink into bankruptcy.  A teacher might decide to turn the tape off before that point to allow students to reach their own conclusions.  But whether or not you make it to the end, these segments provide many moments that will stimulate discussion and reflection.