Detroit water shutoffs must end

Jim Olson

Detroit’s emergency manager filed for bankruptcy in July 2013 to force creditors to negotiate a bankruptcy plan that would slash the city’s unwieldy debt. Last month, the U.S. Bankruptcy Court in Detroit approved a plan that would over time give Detroit a chance to survive. Missing from the plan, however, is any mention of the disturbance and threat to the rights to water and health of Detroit’s poor caused by the abrupt shut off of their water service.

Over the past year, Detroit has shut off an unprecedented 27,000 households ‒ more than 10 percent of the city’s total, preventing families, children and those with medical conditions from accessing water for drinking, cooking, bathing and flushing. The city launched the shutoffs to improve its chances of negotiating a bankruptcy plan and improve its position with the suburbs and private water companies who have been eying a takeover of Detroit’s water system.

Charities and businesses stepped forward with unprecedented donations of hundreds of millions of dollars to save the inestimable value of the collection of art at the Detroit Art Institute. Ironically, no one stepped forward to contribute or establish an affordable rate structure based on ability to pay to save Detroit’s water system that serves Detroit’s poor, mostly African American population – a wrenching irony for a city that runs along the shores of the Great Lakes.

Detroit’s loss in population, increased costs of operations, aging infrastructure, unemployment, and the loss of tax base from the flight of the auto industry and people to the suburbs have combined to pump up the average water bill above $100 per month for a family – in some instances reportedly as high as $2,000 because of mistakes or charges for which residents were not responsible. This cost is simply staggering in a city rife with poverty, where 20 percent of the city’s population lives on less than $800 per month.

In America, the due process and equal protection clauses of the Constitution are supposed to protect the fundamental rights of persons’ liberties and interests in property from harm. Interests in liberty and property cannot be terminated arbitrarily in our country without notice and an opportunity to be heard. As Jacque Cousteau once said, “the life cycle and water cycle are one.” It would seem that Detroit should not be allowed to shut off water service to its residents without respecting their life and liberty from harmful risks and unfair or discriminatory actions.

The city of Detroit clearly may well need to collect revenue or improve its balance sheet to exit bankruptcy free from intolerable debt. However, severing water from the homes or off the back of its remaining poor and most vulnerable residents is even more intolerable – an action that could jeopardize lives, health, and force fewer residents to pay exponentially higher water bills.

Something has gone terribly wrong here that deserves much closer scrutiny, not only for the residents of Detroit, but for people around the country and world who lack access to water to preserve health and life. The world faces a water crisis. In less than 20 years, demand for fresh water will exceed supply by as much as 30 percent. More than a billion people will be without fresh water. How we treat water services today sets a precedent on how we treat water and each other tomorrow.

Lawsuit on water rights

Recently, a U.S. bankruptcy court rejected a lawsuit brought by several homeowners to delay the city’s shutoffs pending a more thorough review of their challenge that their constitutionally protected interests have been violated. Despite Detroit’s acknowledgment that it had not followed its own rules to provide residents an opportunity to address errors, the city ordered thousands more shutoffs to continue.

Court statements of residents recounted that they were living in poverty, often compounded by the needs of the elderly, children, disabled or ill; several residents were never informed that they had a right to request a delay; others were not granted an opportunity to dispute bills; still others’ water service had been terminated or threatened with termination where their landlord had failed to pay the bill. The city even acknowledged it had not followed rules that protect residents from shut-offs for good cause. At one point, a city official reportedly told residents they could go the Detroit River for their water. This was a slap in the face: after a large city has used taxpayer funds and state credit to replace individual rights to water withdrawals from the river or groundwater with a common public water system, its residents are told they have no right to the city’s water to meet basic needs, and then sent to a polluted river with buckets in hand simply because they are either too poor or disempowered to challenge the city’s broken process.

Not surprisingly, the bankruptcy court found that the water shut offs “have and will continue to cause irreparable harm to health, family, sustenance and children’s well-being.” However, the court concluded that the plaintiffs had not established they had an interest in liberty or property that was protected by our Constitution. Unfortunately, the court failed to consider the fact that these residents hold a human right to water and health under international law and a right to access water under the public trust in water drawn from the Detroit River or Lake Huron. These residents should have been able to pursue their constitutional claims.

Water as a public trust

Water has been considered public and common to citizens for nearly 2,000 years. The principle dates back to the Justinian Codes in Rome, where air and running water were considered common to all citizens. The principle can be traced directly through the Magna Carta to the United States and to the water of the Great Lakes. The Northwest Ordinance of 1787 preserved the rights of citizens in the use of navigable waters. In 1892, the U.S. Supreme Court ruled that the Great Lakes were owned by the states and held in trust for the benefit of each citizen’s paramount use for drinking, health, and sustenance. As cities grew and demand for water increased, cities tapped public trust waters such as Lake Huron and the Detroit River. It was neither cost effective nor socially acceptable to let people fend for themselves at the shore. So public water systems were publicly financed to deliver water as a service on a non-profit or “cost” basis. Serving water to the poor who cannot pay their bill is a cost of any civilized society.

In 2010, the United Nations General Assembly adopted a resolution declaring that there is a human right to water and sanitation. The human right to water is inseparable from the human right to health. The U.N. Declaration of Human Rights expressly recognizes the human right to health and family. Governments, including Detroit, are subject to these principles of international law, and our courts are bound to apply them as the supreme law of the land under the U.S. Constitution. In October, an investigation team from the U.N. Human Rights Special Rapporteurs urged Detroit to grant notice, fair and equal treatment, hearings and protections for Detroit’s poor and vulnerable residents. They recommended that water connections should be restored, and that a mandatory affordability threshold should be established to provide water for those living in poverty or unable to pay. If 100 liters or about 35 gallons per day are necessary to protect a person’s health and each of the 27,000 households uses 100 gallons per day, the amount needed to protect their health is less than 3 million gallons a day, infinitesimal when compared to the nearly two billion gallons delivered by the city every day.

Bankruptcy ignores shutoffs

To be sure, the bankruptcy court’s approval of Detroit’s bankruptcy plan and prospects of exiting bankruptcy have engendered a spark of hope in a city gone dark. The plan pays tens of millions of attorney fees, takes care of pensions, hands over cash and real estate to creditors, and acknowledges the leasing of the water and sewer department to a regional Great Lakes Water Authority. But the bankruptcy court and plan does nothing to address the water shutoffs, gross errors, and water and injustices to the poor, elderly, sick and children who cannot pay water bills now or in the future. Detroit continues to close shutoff valves and mark disconnected residences with a swash of blue paint on their sidewalk, a humiliating punch to those struggling to survive.

Detroit residents should be granted their day in court. Better yet, officials should take charge as trustees of this water for the benefit of Detroit residents. It is shameful that water so essential to health and well-being is last on the list for the future of Detroit. A city that isolates and cuts off its poor from services, cuts off its legs to succeed.

The city of Detroit has entered into an agreement to form a Great Lakes Water Authority and lease water, treatment facilities, and pipelines to the suburbs. But the agreement places the burden of fixing and operating its water infrastructure and service on the city and its residents; the agreement exempts the counties and suburbs from any financial responsibility to pay their share of the cost for all residents of Detroit, especially the poor. While the agreement provides $5 million per year for those unable to pay throughout the new regional system it does not ensure a minimum amount of water based on affordable rates for those who are vulnerable or unable to pay.

It is time that the city and courts immediately end its water shutoff program and restore water to those who have been harmed. It is time to enact and implement a true plan based on the ability to pay, the right to notice and fair hearing, the right to be free from discriminatory treatment and the responsibility of the counties, suburbs, and the city to share and pay for the cost of the plan, with the regional water supply held as a public trust for residents.

Until these principles are addressed, Detroit’s bankruptcy plan and the new regional water authority’s plan will not serve the overriding public interest in water, the Constitution, and international law.

Jim Olson is a founder and president of FLOW (For Love of Water), a Great Lakes water policy center whose mission is to establish effective policy and law to protect the waters of the Great Lakes basin and the public uses that depend on them. Olson is one of several attorneys who have appeared in Lydia v City of Detroit, U.S. Bankruptcy Court for the Eastern District of Michigan, on behalf of the plaintiffs- residents whose water has been or is threatened with shutoff. This column represents Olson’s personal opinion and not necessarily the view of the plaintiffs or FLOW.