The Future of Wastewater Monitoring for the Public Health
56 U. Rich. L. Rev. (Forthcoming 2022)
40 Pages Posted: 12 Feb 2022 Last revised: 30 Mar 2022
Date Written: January 8, 2022
The COVID-19 pandemic has invited dramatic investment in and expansion of wastewater surveillance. This surveillance may enable early detection of an increasing presence of COVID-19 in the community. But the same technology may simultaneously or soon be turned to other uses, including for drug interdiction, community wellness, or environmental monitoring. All of these uses raise urgent legal and ethical questions.
But the legal literature, to date, has almost uniformly failed to even consider the ramifications of wastewater-based epidemiology. Indeed, we are aware of only two articles discussing wastewater surveillance in the legal literature—one of which is our own prior work. In prior work, we have raised questions about the legal and ethical dimensions of wastewater surveillance in response to the COVID-19 pandemic. But that work arrived in the earliest days of the pandemic, when research efforts were not yet well established or as broadly implemented, and when legal and ethical consideration was focused almost exclusively on the drastic public health emergency at issue.
This Article thus expands the extant literature by considering the legal and ethical dimensions of wastewater surveillance more thoroughly and more broadly. It arrives at an auspicious time, as the United States moves into a vaccine-mediated phase in which COVID-19 is less likely to give rise to broad stay-at-home orders and more likely to trigger narrower, more targeted interventions. It seeks to offer guidance for the legal and ethical use of wastewater surveillance along two dimensions. The first considers the circumstances under which wastewater monitoring should be deployed for detecting and responding to COVID-19 specifically. The second zooms out, to consider whether and how this surveillance infrastructure, largely created in response to the COVID-19 pandemic, might be deployed for other uses, and examines the legal and ethical difficulties that may attend these broader uses.
This Article proceeds in three parts. Part I reviews the state of the science for wastewater-based epidemiology, focusing specifically on how this technique has been deployed to monitor for or detect the virus that causes COVID-19. One of the authors is a research scientist currently working to establish and oversee wastewater-based epidemiological efforts related to COVID-19 monitoring in the City of Detroit, Michigan, and Part I draws on that expertise. Part II then moves from what is possible to what is legal and ethical. If wastewater-based epidemiology is to be deployed now and in the future for detecting and responding to COVID-19, what parameters should guide the collection of wastewater signals, and how should that data be used by policymakers and others to enact further public health protections? Finally, Part III broadens its scope beyond COVID-19. Wastewater surveillance for COVID-19 sentinel surveillance can be well justified, provided guidelines are established ex ante for public health response to monitoring results. Other uses of wastewater surveillance infrastructure, however, may raise substantial privacy concerns, particularly if this infrastructure becomes denser and correspondingly more granular in the data it discloses. Such uses may, in turn, undermine both the legal soundness of and public trust in wastewater monitoring writ large.
Keywords: wastewater, wastewater monitoring, ethical and legal implications
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