Jackson’s Water Is Still Brown. The EPA Says That’s Not Discrimination.

As a child, Brooke Floyd wondered why her grandmother cooked all her food and washed all her dishes with bottled water. As an adult living in Jackson, Mississippi, it became clear.

After a storm damaged a water treatment plant in 2022, leaving most of the majority-Black city without water flowing through their faucets for weeks, Floyd could no longer take it. It seemed like no one, not the state or federal government, was willing to take accountability for the neglect toward her city as residents had wallowed through nearly 300 boil-water notices over the previous two years.

The water crisis, decades in the making as now evidenced by her late grandmother’s nearly lifelong dependence on bottled water, had reached a boiling point. Led by the NAACP, a coalition of residents and activists brought a civil rights complaint to the federal Environmental Protection Agency, alleging “a long history of discrimination through years of neglect and the repeated denial of requests for federal funds” to solve the crisis.

The complaint seemed promising. In 2020, after President Joe Biden’s election and a federal judge’s ruling that the EPA must begin timely investigations of civil rights complaints, the prospects of using the Civil Rights Act to regulate pollution and clean up long-overburdened Black communities were high.

But as Capital B has reported, it has been much of the same, and Jackson is just the latest casualty of the once-influential act’s dwindling power.

Last week, the EPA dismissed the complaint, the most prominent on its civil rights docket.

In a statement after the dismissal, NAACP leader Derrick Johnson said, “The NAACP is outraged. Since day one of this crisis, we have been on the ground, speaking with residents and community leaders.

“One thing remains clear,” the statement continued, “racial discrimination and neglect have left a majority Black, capital city in crisis.”

Jackson’s dismissal comes several months after the agency declined to continue investigating its prior most significant civil rights complaint brought by Black residents in the nation’s “Cancer Alley,” along Louisiana’s Gulf Coast.

The EPA found “insufficient evidence” that racial discrimination shaped decisions by the Mississippi Department of Environmental Quality and the Mississippi State Department of Health about water system funding for the state’s capital city.

“Although Jackson falls on the lower end of per capita funding … there was no significant relationship between loan amounts per person and race over time,” the EPA said.

But, Floyd contends that the investigation wasn’t focused on all the aspects of discrimination.

“Why is a capital city having to apply for federal funds meant for low-income cities in the first place?” she said. “A city is considered low income because they’ve been disinvested and divested from by the state. That’s the true problem. That’s systemic racism.”

Since the 1990s, Jackson’s city budget has dwindled as economic and educational investments have seeped from the city, coinciding with white flight. In 1990, Jackson’s population was about 56% Black and 44% white. Today, it is 82% Black and 15% white.

At the height of Jackson’s water woes in September 2022, a Capital B analysis found discrepancies in how much federal funding Mississippi was receiving to maintain its water systems. Despite their similar water struggles, Arkansas — which has seven times fewer Black residents than Mississippi — received more federal funding for drinking water: $27.1 million compared to $19.4 million.

Read More: Jackson Water Crisis Is Just One of Many Impacting Black Communities

Still, Floyd, who is now the co-director of the Jackson People’s Assembly, a social justice organization, isn’t surprised by the decision given how the investment in the city over the past few years has played out.

“Isn’t that how it goes? The oppressor telling the oppressed that they haven’t been discriminated against,” she said.

Blocking another takeover

After residents went weeks without water in 2022, a federally appointed administrator took control of the city’s water system, and the federal government approved $600 million for improvements to the city system. At the same time, local leaders and residents, those most directly affected by the crisis, were locked out of contributing to the decision-making process.

Without support and direct objections from Mayor Chokwe Lumumba, the federally appointed engineer, Ted Henifin, began taking steps to run the city’s water system through a private company. By court order, he has the sole authority to enter into contracts, make payments, and change the rates and fees charged to consumers — a major concern for residents struggling in the city. Roughly 26% of residents in Jackson live in poverty, which is double the national average.

The private company set up by Henfin, JXN Water, hired contractors to update the main water plant’s corrosion control and tested for lead and bacteria like E. coli. Henfin has said the water plant is virtually fixed and that the water is safe to drink. However, brown liquid still pours out of many faucets, two residents told Capital B. Since 2022, activists’ requests for data about Jackson’s drinking water and work being done to fix the water plant and remove lead service lines have largely gone unanswered.

Floyd and other residents have expressed that the process feels like another form of discrimination. They’re afraid that Jackson’s public water utility will become completely privatized even after all the improvements are completed. According to the National Association of Water Companies, more than 20% of Americans now rely on private companies for drinking water, a substantial increase compared to 2019. On average, private water utilities charge families 59% more on their water bills than public utilities.

Read More: Flint’s Water Crisis 10 Years Later

The fears are intensified by “the Mississippi State Legislature’s white, extremist majority [that] continues to launch attempts to siphon power and federal funds away from the city,” said Danyelle Holmes, a Jackson resident and senior national social justice organizer with Repairers of the Breach and the Poor People’s Campaign.

Recently, Mississippi legislators introduced the Mississippi Capitol Region Utility Act, a bill that would transfer control from JXN Water to a newly formed entity, the Mississippi Capitol Region Utility Authority. The governor and lieutenant governor would appoint the majority of the board members. The bill ultimately failed.

In April, Holmes’ and Floyd’s groups were granted intervention in the EPA’s lawsuit that resulted in the de facto takeover of Jackson’s water system. Being granted intervention means they are now an official party to the lawsuit and have a voice in the proceedings, and allows them a greater say in ensuring that the city’s water will one day go back to local control.

“At the end of the day, we just want money to fix the water because people deserve to have clean drinking water,” Floyd said.

Despite the city and state being awarded upward of $800 million for improvements over the past several years, there is still a shortfall of upward of $1.2 billion. The city still has more than 150 miles of aging lead pipes.

These crises are reverberating across the country, from Flint, Michigan, to Prichard, Alabama, where a coalition of 22 organizations are petitioning the EPA for financial assistance to fix the small Black city’s water system. Residents in the town allege local leaders have mismanaged funds that have allowed its water delivery system to fall into disrepair. Nearly 60% of Prichard’s drinking water leaks from the system, creating contamination and reliability risk for residents, and for first responders who rely on water pressure for fire hydrants to work. Capital B previously reported on how years of water woes could cost residents their homes.

What happens next for the Civil Rights Act

As Jackson’s struggles mirror Black water crises nationwide, the EPA’s failure to enact the Civil Rights Act underscores a growing reality.

While major civil rights complaints brought by Black residents continue to get dismissed, a coalition of Republican state attorneys generals are trying to stop the EPA from taking race into account at all. Last month, 23 attorneys general filed a petition with the EPA to force the agency to stop using Title VI of the Civil Rights Act to regulate pollution.

The attacks on the EPA’s use of the Civil Rights Act predate the Biden administration. As former President Donald Trump left the Oval Office, his Department of Justice attempted to change the interpretation of the Title VI to only cover intentional discrimination; meaning if a polluter, or state in the case of Jackson’s crisis, “accidentally” let a community face disproportionate environmental impacts, it could not be deemed discrimination. Although the initial push failed under Trump, remnants of the attack have plagued the Biden administration’s ability to enforce the act.

Under the Biden administration, Capital B’s analysis found that although the EPA has increased staffing in the civil rights division and accepted more cases for investigation when compared with historical averages, the likelihood of a positive resolution for impacted communities had not increased.

Since the first mention of “environmental justice” at the federal level in 1994, roughly 90% of all complaints brought to the EPA by communities overburdened with pollution have been dismissed.

It has left impacted residents with fewer options for reprieve.

“Since coming into the 21st century, when it comes to civil rights, environmental rights, and an equal protection under the Civil Rights Act, it doesn’t seem like there has been much of a commitment,” Robert Bullard, who is widely regarded as the “father of environmental justice,” told Capital B last year.

Still, Floyd said, “Us impacted by these crises — we’re just here, we’re still fighting, and we are going to remain hopeful.”

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