When I teach Water Resources Law to my students, I often start each semester by juxtaposing two competing conceptualizations: water as a private commodity vs. water as a human right. The contrast demonstrates the diversity in approaches to water management, while foreshadowing the public-private tensions that permeate contemporary water law debates. Some students are attracted by the promises of privatization, including capital investments to upgrade infrastructure and the efficiencies of allowing market forces to allocate water where it is most valued. Other students push back, noting the fundamental human need for water as a justification for holding water resources in common, while citing the negative externalities that frustrate attempts to monetize water accurately.
Both viewpoints are playing out in the wake of the Flint, Michigan, water crisis. Last month I wrote about the rhetoric following the crisis, noting that many critics were echoing the human right to water perspective. One Michigan state representative even proposed a bill that would declare water to be a human right. To many observers, the crisis was caused by water managers holding financial considerations above public health and environmental justice. Indeed, Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was largely a financial one, as the move was projected to save the city $19 million over eight years. When the Flint city council voted to return to Detroit water, the city's emergency manager opposed the move on financial grounds. To many, water cannot be managed with such financial tunnel-vision, and a human right to water might rebalance water managers' priorities.
But in the last several weeks, another view has (re)emerged. Some have called for further privatization of water resources. To these critics, the Flint water crisis is a crisis of public governance, one that may have been avoided had a private utility been in charge. A private utility would still have received government oversight, while avoiding the messy political battles necessary to receive infrastructural investments. A private utility, furthermore, would not have enjoyed sovereign immunity, providing an incentive to avoid litigation arising from water contamination.
So, which view is the right view? It is important to get this right, to extract some broader lessons learned instead of dismissing the Flint ordeal as flukey mismanagement. On the contrary, water infrastructure is crumbling across the country. The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, and despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance. The upshot of all this is that more and more pressure will be placed on water managers to provide safe, clean drinking water despite all these challenges.
Just this week, the long-running water troubles experienced by residents of St. Joseph, Louisiana made headlines. Their water has iron levels 32 times higher than the US EPA's recommendations. State engineers blame the iron concentration on faulty infrastructure in need of repair. The small town's representatives, though, have done little to address the problem. In places where human and financial resources are scarce it will be difficult to promote sound water management, whether public officials are managing water resources directly or overseeing private operators. As long as infrastructure continues to deteriorate and little to no resources are allocated to address water problems, we can expect to see more cases like Flint, Michigan, and St. Joseph, Louisiana.
For critics on both sides of the privatization vs. human right spectrum the Flint water crisis is Exhibit A for the need to reform. Unfortunately, water resources can be mismanaged in many different ways, whether privately or publicly held. Water users in Flint paid a staggering $864 a year for water. But a report by Food and Water Watch found that on average private utilities charge more for water than public utilities. Complicating the matter further are the many water management frameworks that constitute a public-private enterprise. Around the country there are examples of both public and private water providers working well, while others are struggling to meet the needs of their communities in safe, sustainable and equitable ways.
Regardless of which end of the spectrum you are on, what should be clear is that water is a vital human resource, and to manage it well requires investment and expertise. In the face of crumbling infrastructure and shrinking budgets, it will be tempting for water managers of any utility to short-change the system in favor of short-term payoffs. Short-changing Flint's water quality in favor of cost-saving measures was not a unique trade-off, but rather a circumstance public and private utilities will likely find themselves facing in the future. If Flint provides one lesson learned, then, it's that water regulators may want to reconsider the costs and benefits of short-term water management thinking. The nation's water infrastructure is in need of repair, and water resources are in need of responsible governance. There may be more than one way to accomplish those objectives, but it will be hard to do so without significant investments.
Ryan Stoa is a Senior Scholar at Florida International University's College of Law. He teaches and writes in the field of natural resources law, and blogs at www.ryanstoa.com.
Suggested citation: Ryan Stoa, Is Water a Commodity or a Human Right? Lessons from Flint, JURIST - Forum, Feb. 29, 2016, http://jurist.org/forum/2016/02/ryan-stoa-flint-water.php.
This article was prepared for publication by Alix Ware, an assistant Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org