Sterling v. City of Jackson and the Limits of Substantive Due Process in Environmental Harm Cases

The Fifth Circuit, sitting en banc, issued its long-awaited decision in Sterling v. City of Jackson, No. 24-60370 (5th Cir. Sept. 4, 2026) — a case that tested whether residents exposed to lead-contaminated municipal drinking water and lied to about its safety could sue the responsible municipality and public officials under 42 U.S.C. § 1983 for violating their substantive due process rights. In a 10-5 decision, the court said no, affirming dismissal of the plaintiffs’ constitutional claims and reversing the panel opinion that had allowed the case to proceed. See Sterling v. City of Jackson, 159 F.4th 361 (5th Cir. 2025), reh’g en banc granted, opinion vacated, 167 F.4th 806 (5th Cir. 2026). The majority’s message is unambiguous: absent a right “deeply rooted” in history and tradition, environmental harms — even egregious, long-running, government-caused ones — belong to tort law and the political process, not the Constitution. The ruling carries direct implications for how environmental compliance failures by government officials get litigated going forward.

Residents of Jackson, Mississippi alleged that the city’s water system leached lead into the drinking supply as a result of years of mismanagement — including a “catastrophic” switch from high-pH well water to low-pH surface water — and that city officials then affirmatively told the public the water was safe when they knew, or should have known, otherwise. Plaintiffs alleged violations of the Safe Drinking Water Act and EPA regulations, and described repeated boil-water notices and system shutdowns. In addition to state-law tort claims, plaintiffs pursued a federal constitutional theory: that exposure to contaminated water violated their right to bodily integrity, and that being misled about its safety violated a right to truthful information from public officials.

The en banc majority applied the Glucksberg/Dobbs “history and tradition” framework and held:

1. No right to be free from government-caused water contamination. The court reaffirmed that the Constitution imposes no affirmative duty on municipalities to provide services — even essential ones like water — “in a reasonably competent fashion.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197-98 (1989); see also Youngberg v. Romeo, 457 U.S. 307, 317 (1982); Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992). It declined to stretch the bodily-integrity doctrine, which has historically covered things like forced medical procedures and sexual assault by police, to cover harm from contaminated infrastructure.
2. No right to truthful information from public officials during a public-health crisis. Following the Second Circuit’s post-9/11 air-quality cases, the court held that misrepresentations by officials do not rise to a distinct constitutional tort absent a historical analog. Lombardi v. Whitman, 485 F.3d 73, 80, 85 (2d Cir. 2007); Benzman v. Whitman, 523 F.3d 119, 125, 128 (2d Cir. 2008) (“no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements”).
3. Qualified immunity would independently bar damages claims against the individual officials. Even assuming a right existed, it was not “clearly established” at the time of the alleged conduct, so individual officials would be shielded from damages in any event.

The Dissent: A Circuit Split Widens

Judge Haynes, joined by four other judges, would have adopted the state-created-danger doctrine — citing the 10 circuits that have already done so, including the D.C. and Ninth Circuits, see Butera v. District of Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1066 (9th Cir. 2006); Irish v. Fowler, 979 F.3d 65, 73-74 (1st Cir. 2020). The dissent would have also held that plaintiffs plausibly alleged a bodily-integrity violation at the pleading stage, taking an approach consistent with the Sixth Circuit’s Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019) (the Flint water crisis case) and the more recent Mitchell v. City of Benton Harbor, 137 F.4th 420 (6th Cir. 2025). The dissent’s core objection is procedural as much as substantive: at the Rule 12(b)(6) or 12(c) stage, plaintiffs are entitled to have well-pleaded facts taken as true and ambiguities resolved in their favor.

The result is a clear circuit split: the Fifth and Second Circuits decline to constitutionalize certain contamination and official-misinformation harms, while the Sixth Circuit and a growing list of others are more willing to entertain bodily-integrity and state-created-danger theories in this context. That split, combined with the sharpness of the disagreement here, makes this a strong candidate for certiorari if plaintiffs seek further review.

Why This Matters for Environmental Practitioners

• Section 1983 is far less available (in the Fifth Circuit) as a fallback for contamination harms. Plaintiffs alleging lead, PFAS, or other contamination exposure from a public water system — or from state actors more broadly — cannot use constitutional tort theories to circumvent the more demanding proof requirements, damages caps, and immunities that typically apply to state tort claims. The court is explicit: the remedy lies in tort law, the ballot box, and existing regulatory enforcement (SDWA, Clean Water Act, EPA orders), not the Fourteenth Amendment.
• The regulatory backstop argument carries real weight. The majority leaned heavily on the fact that EPA and the Mississippi State Department of Health had been actively monitoring and enforcing against the city for years, and that the federal government had, by then, taken over management of Jackson’s water system pursuant to a separate SDWA/CWA enforcement action. Expect defendants in future contamination suits — municipal, industrial, or otherwise — to invoke ongoing or completed regulatory enforcement as evidence that adequate non-constitutional remedies exist, cutting against any due-process theory.
• State-created danger remains unsettled in the Fifth Circuit — for now. The court’s continued silence on the doctrine, rather than express rejection of it, leaves the door open for plaintiffs to attempt other theories, even as the court signals hostility. 
• Watch for certiorari. Given the depth of the circuit split (10 circuits versus the Fifth’s continued silence on state-created danger, and now a direct conflict with the Sixth Circuit’s Guertin/Mitchell line on bodily integrity), this case is a plausible Supreme Court candidate. Clients with relevant exposure in multiple circuits — including mining and industrial companies, utilities, and suppliers and service providers to municipalities — should watch this closely, since the outcome will shape whether affirmative government misconduct in environmental contamination cases can support substantive due-process liability on comparable allegations, or whether such claims remain confined to state tort and statutory enforcement frameworks.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.