Advancing Positive Water Rights

Abstract

Despite its necessity to survival, the United States does not recognize a positive right to water. Instead, access is determined largely by the free market. Consequently, millions have historically lacked reliable access to clean water, a crisis that disproportionately affects minority and low-income households. Then came the COVID-19 pandemic. Record unemployment resulting from pandemic shutdowns pushed millions more to their financial breaking points, risking water utility shutoffs at a time when hand hygiene was critical to slow the spread of the virus. Exercising their police powers, thirty-three jurisdictions enacted disconnection moratoria, preventing water utility providers from terminating service even if a consumer was unable to pay. By forcing redistribution of private property, states disrupted existing contracts between consumers, water utility providers, and public utility commissions, raising complex constitutional questions.

This Article is the first to empirically examine water utility disconnection moratoria enacted in response to COVID-19. This analysis seeks to identify the conditions favorable for the United States to advance a positive right to water, even after the pandemic ends. Estimating a multivariate regression model, this Article finds that the higher a state’s unemployment rate, the more likely the state was to adopt a moratorium, suggesting that mitigating the effects of rising unemployment motivates state action. Following the analysis, the Article evaluates the applicability of the Fifth Amendment and the Contract Clause to determine the constitutional contours of a positive right to water. Finally, the Article assesses and suggests improvements to current American water policies to expand water access without exceeding constitutional limitations.

Keywords: water rights, positive rights, COVID-19 pandemic