All these strategies would face daunting obstacles, and it’s unclear that the Biden administration is even willing to entertain the last one. But civil rights and environmental justice groups say it’s urgent that Washington take a far more direct role in ensuring safe drinking water in Jackson after three years of federal regulators pressing state and local officials to address the city’s ailing utility system.
Above all, they say, that means wresting control over funding decisions away from the state.
The groups have questioned whether the Republican-controlled state deliberately withheld water funding for Jackson, a city that is 82 percent Black and has a disproportionate share of low-income residents. State officials have blamed the city for mismanaging the system, and Mississippi’s Republican governor, Tate Reeves, last year said the city needed to do a better job of “collecting their water bill payments before they start going and asking everyone else to pony up more money.”
“The state is in a place, it’s got a lot of power to either make things easier for Black communities or to make things harder, and what we feel like has happened in Mississippi is that the state has used its power to make things harder for Black folks,” said Abre’ Conner, director of environmental and climate justice with the NAACP.
“This is why there needs to be more effort in order to have funding flow straight into Jackson and for the state to not have complete control over the decisions about federal funding,” she said.
POLITICO spoke to six people who described a range of possible avenues toward that goal. The NAACP is “considering all options in order to ensure that residents of Jackson, Miss., are able to access funding that is needed for them to be able to rebuild,” Conner said.
Reeves has told reporters he is focused on fixing the city’s water problems, not waging a divisive argument over who caused them. “I know you in the press really want to play the blame game and you really want to focus on pitting different people against one another,” the governor said, according to Jackson-based WLBT-Channel 3.
The immediate emergency in Jackson receded late last week when the city lifted a boil-water order that had been in place for more than 40 days, after floodwaters inundated the city’s drinking water plant. But it will still take years and millions, if not billions, of dollars to repair the decrepit water system, which first went into operation in 1914.
Mississippi is scheduled to receive roughly $75 million in federal water funding this year from the bipartisan infrastructure law, on top of $450 million the state set aside for water infrastructure from earlier federal coronavirus relief. And discussions are underway in Washington about sending additional emergency dollars — potentially as soon as the end of this month — to address Jackson’s problems.
State leaders have wide latitude to determine which communities get infrastructure funds, with Jackson’s needs competing against those of suburban and rural, predominantly white areas. Mississippi is one of 49 states that have received authority from EPA to distribute federal money to run their drinking water systems — giving the federal agency few tools to judge whether they are doing it equitably.
Jackson’s disaster is only the latest in a long line of drinking water crises in communities whose residents are disproportionately low-income and people of color — from Flint and Benton Harbor, Mich., to Newark, N.J. While the particulars of each city’s crisis differ, they have all raised questions about whether state and federal authorities are equitably distributing resources and responding to concerns from these communities, which have historically been deprived of federal resources through policies such as redlining.
EPA’s inspector general said last week that it will probe the use of federal dollars for drinking water and wastewater as part of an investigation of the drinking water emergency in Jackson. Four years ago, the same agency issued a scathing report on the EPA’s handling of Flint, finding that state and federal regulators failed to respond to the crisis with a sense of urgency, and that EPA staffers thought — incorrectly — that they didn’t have the authority to step in.
It is clear, though, that crisis at Jackson’s O.B. Curtis Water Treatment Plant was years in the making.
A 2020 engineering report from EPA detailed the plant’s many problems, including inadequate staffing, “inoperable” equipment and failures to monitor for lead. EPA issued an enforcement order the same year, finding that the system “presented an imminent and substantial endangerment to the health of persons served by the system.” In 2021, federal regulators and the city reached a legal agreement to bring the city into compliance with federal drinking water requirements.
Still, the state does not appear to have directed any of the nearly $75 million in water funding it is receiving from the bipartisan infrastructure law this year toward fixing the plant’s fundamental problems. And when the state’s Republican-controlled legislature set aside $450 million from earlier coronavirus relief for water infrastructure, it added an additional layer of review for applications from the city of Jackson.
State records indicate the Mississippi Department of Health awarded some federal water funds to the city in 2019 and 2021, although it is unclear what projects those dollars were intended to support. A department spokeswoman could not confirm the history of funding for the Jackson system, saying drinking water staff were too busy responding to the current crisis to provide details in a timely fashion.
In the near term, legal experts say a civil rights complaint, filed either with EPA or as a lawsuit in federal court, may offer the most direct approach to addressing the problems in Jackson. Title 6 of the Civil Rights Act makes it illegal for any entity receiving federal funds to discriminate based on race, color or national origin.
“I think that’s a serious claim, but I also think it’s a viable claim,” said Jeremy Orr, an environmental litigator who teaches water law at Michigan State University.
Civil rights allegations have, historically, often been left to languish with federal agencies, Orr said, but under the Biden administration they’ve received new attention.
For instance, a complaint filed by community groups over plans to relocate a metal-scrapping plant from Chicago’s wealthy north side to a community on the south side that’s home to lower-income residents of color resulted in the U.S. Department of Housing and Urban Development threatening in July to withhold federal funding from the city if it allowed the plans to move forward.
Activists are increasingly looking to make similar arguments with respect to water infrastructure. For instance, community groups and environmentalists in January filed a civil rights complaint with EPA alleging that the approach Providence, R.I., is taking with its lead service lines — funding only their partial replacement — has a disparate impact on Black, Hispanic and Native American residents.
But civil rights complaints are targeted at only the immediate crisis, and Orr and others are also considering broader approaches that could increase scrutiny of the state’s treatment of disadvantaged communities.
At a minimum, advocates are pushing for EPA to take a more proactive role in overseeing states’ spending on water infrastructure, especially with the $1.2 trillion bipartisan infrastructure law passed last year set to deliver an infusion of cash to the states in coming years.
The Biden administration has called for 40 percent of those investments to benefit low-income and minority communities that have historically been overlooked by federal investments, and EPA in March issued guidance laying out how states can comply with the initiative. While governors and state legislatures determine where the money gets spent, those plans have to be submitted to EPA for review.
Conner, with the NAACP, argued that EPA should be prepared to use its authority to push back if states don’t distribute that money equitably.
“The EPA has the ability to look at a plan in its totality and see whether or not it is actually touching disadvantaged communities,” she said. “EPA could say, ‘It seems that there are some blatant omissions,’ and because of that they could reject the plan or potentially ask them to modify it.”
EPA spokesperson Maria Michalos said getting funding to “communities who’ve historically been locked out of federal funds” is a top priority for the Biden administration. She said that includes spending of the so-called revolving funds that pay for drinking water and wastewater infrastructure, adding that Administrator Michael Regan has been “clear with states that EPA’s expectation is that priority is given to underserved communities.”
Legal experts, however, say it’s unclear how much authority EPA has to push back on states’ plans, and Republicans on Capitol Hill defend states’ authority to distribute dollars as they see fit.
That legal authority could be clearer, though, if Congress approves emergency funding specifically for the crisis in Jackson. Rep. Bennie Thompson, the Democratic congressman whose district includes Jackson, has called for such funding, as have Mississippi’s two Republican senators.
People familiar with the discussions say additional money for Jackson is under discussion as part of disaster funding that could hitch a ride on a bill to keep the government funded past Sept. 30. One person said those discussions include the possibility of routing the dollars in a way that didn’t put the state in control. The people spoke on condition of anonymity because negotiations are ongoing.
Then there’s the most dramatic action: challenging the state’s right to oversee drinking water programs altogether.
The federal drinking water law sets national requirements for treating drinking water, addressing contaminants and monitoring its safety, and it allows states to assume “primacy” for implementing those requirements.
No state has ever had that power revoked, but “there are mechanisms for the EPA to take back primacy from a state if the state is not enforcing the Safe Drinking Water Act properly, and that includes where you are investing your money,” said Mae Stevens, a lobbyist on water issues with Banner Public Affairs whose clients include environmental groups and water utility associations.
If a state were to lose its right to implement the federal drinking water law, those responsibilities would fall to EPA, and could represent a massive new workload for the agency.
While the idea of revoking primacy sometimes comes up in a crisis, it has never gotten serious traction, said Alan Roberson, executive director of the Association of State Drinking Water Administrators. State drinking water programs typically have dozens of experts on staff, charged not just with distributing federal funds, but also with reviewing engineering plans and conducting inspections on the ground.
“Where are you going to find all the people to do this work?” Roberson said. “EPA doesn’t have it. And if you contracted it all out you’d be paying an arm and a leg for all these people and a lot of them wouldn’t be qualified.”
But a lawsuit wouldn’t have to result in a state losing primacy to have an impact.
Under other laws, such as the Clean Water Act, which governs pollution into rivers and lakes, lawsuits from environmental groups challenging a state’s primacy have helped EPA prod states into strengthening their programs.
“It is a little bit the nuclear option, but because there is that authority there, it does give EPA some strong leverage to fix underlying problems with state programs,” said Erik Olson, who leads the Natural Resources Defense Council’s health program.
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