In the absence of a fundamental right to a basic level of drinking water and sanitation in the United States, this article examines the ways in which federal and local civil rights laws provide an alternative legal infrastructure to ensure baseline water and sanitation equality. The article focuses on a particular jurisdiction, Washington, D.C. However, the framework analyzed has direct relevance to other subnational settings, since many anti-discrimination laws are federal and all share common themes across jurisdictions.
Part I sets out background information on the delivery and affordability of residential water in Washington, D.C., describing a set of laws, regulations, and challenges that are similar to other localities around the country. Part II sets out the relevant civil rights laws – including federal constitutional law, federal statutory, and local legal theories – and how they might apply to a hypothetical instance of water inequality in Washington, D.C. arising from water unaffordability. Special attention is paid to the issue of discriminatory intent, a prerequisite to many civil rights claims. Part III summarizes the potential strengths and shortcomings of current antidiscrimination law as it applies to water and sanitation inequality, and identifies promising avenues for legal action. This section also describes several domestic initiatives to create a broader set of rights to augment and strengthen the existing legal infrastructure protecting water and sanitation access.