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Necessities to Life: The Fundamental Rights to Clean

Water and Clean Air

Sophia Reiss1

Americans are guaranteed fundamental rights, including some
not enumerated in the Constitution. The Supreme Court has
recognized several, such as the right to parent one's children.
The right to clean water and clear air are necessary to
“promote the general welfare” and so should be recognized as
fundamental rights. This paper walks through the importance
of both water and air protections, where the United States legal
framework could possibly allow for protections, what current
protections exist, why further protections are vital.

Introduction

Certain fundamental rights are guaranteed in the U.S.
Constitution. While many of these, such as freedom of speech,
are expressly named in the document, the Ninth Amendment
establishes the existence of “unenumerated rights” which are
deemed to be implied by the foundational American texts.
These rights are a place where the framers acknowledge the
necessity to achieve other goals and enable for these rights to
become judicially enforceable through their underlying
presence in the preamble. Since the preamble declares that two
of the principal goals of the Constitution are to “promote
general Welfare” and “liberty,” and since clean air and water
are vital to human survival, the right to clean water and clear
air should therefore be recognized. Federal protection for these
rights stems from the Clean Water Act and Clean Air Act,

1 Brandeis University Undergraduate, Class of 2023.

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Brandeis University Law Journal Fall 2022, Volume 10, Issue 1

passed by Congress in the 1960s. Several states recognize the
right to clean air and water in their State Constitutions or
through legislation, but the U.S Supreme Court has yet to
consider the question of whether clean air and water ought to
be considered as rights guaranteed by the Ninth Amendment.
Recognizing these as fundamental rights in the U.S.
Constitution, would expand their protections and raise the
hurdles that would need to be overcome to deny them to
people.

Public health is a fundamental concern, so the resources
crucial to maintaining it are as well: clean water and air. Legal
mandates for clean water and air have a significant impact on
the environment and on our health.  For example, during the
Flint water crisis, the city’s drinking water was contaminated,
causing widespread lead poisoning across the city.2 Across the
state in Chicago, a lack of clean air due to longstanding
pervasive industrial pollution and minimal regulation has
caused elevated rates of asthma among the city’s population.3

Legal Context

The Ninth Amendment of the Constitution notes that
the people retain rights not enumerated in the Constitution and
there is a long history of court rulings that there are rights
implied. In Meyer v Nebraska, in which the Court ruled that
states cannot forbid the teaching of a foreign language, the
Court noted broadly that the “liberty guaranteed under U.S.
Const. amend. XIV denotes not merely freedom from bodily
restraint but also” several other unenumerated rights including
“the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to

3 “Chicago Now Ranked 18th Most Polluted City in the U.S.”
2 Guyadeen, “New York’s Constitutional Right to Water,” 2021.

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Brandeis University Law Journal Fall 2022, Volume 10, Issue 1

marry, establish a home and bring up children.”4 The case
mentions that this list is not exhaustive and that the Ninth
Amendment provides protections “generally to enjoy those
privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men.”5 Most of the
jurisprudence conferring unenumerated rights has focused on
“liberty” guaranteed in the 5th and 14th Amendments.

When the Supreme Court has recognized such rights, as
well as when states have added rights to clean air or clean
water to their constitutions, they have not spelled out precisely
what these rights entail or how they will be protected. Those
concerns have been left to the legislatures and courts to define.
This paper argues that maintaining one’s life and health are
clearly essential to enjoying the privileges of liberty. So, the
case for guaranteeing clean air and clean water may be
grounded in the “general welfare” clause in the preamble as
well as “life” and “liberty” guarantees in both the 5th and 14th

Amendments. The right to clean air and clean water should be
recognized as implicit in the General Welfare clause, as it
would be impossible to promote the general welfare without
them.6 Fundamental rights are protected by the standard of
strict scrutiny hence, requiring a high level of justification for
any infringement. According to the Legal Information Institute,
strict scrutiny is defined as “a form of judicial review that
requires a ‘compelling governmental interest,’ and must have
narrowly tailored the law to achieve that interest.”7 Strict
scrutiny serves as “the highest standard of review” requiring a
robust defense and evidence to satisfy the high burden.8

Recognizing clean air and water as fundamental rights would
protect them from government infringement in future.

8 LII / Legal Information Institute, “Strict Scrutiny.”
7 LII / Legal Information Institute, “Strict Scrutiny.”
6 TheFreeDictionary.com, “Unenumerated Rights.”
5 Meyer v. Nebraska, 262 U.S. 390, 1923.
4 Meyer v. Nebraska, 262 U.S. 390, 1923.

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Clean Water

The right to clean water serves as a “compelling
government interest” because human survival depends on the
presence of water, maintained as about 75% of the human
body.9 The Constitution outlines the government’s role in
“promot[ing] the general Welfare,” and this general welfare
requires public access to clean water. Water is integral to our
survival, so whenever this basic resource is not protected that
same survival comes under threat.10

The Flint Water Crisis is a chilling example of what can
happen in the absence of clean water. In 2014, the city of Flint
attempted to switch the water source of the drinking water to
save money.11 The change proved disastrous. “Flint's nearly
100,000 residents complained their tap water was undrinkable:
cloudy, foul smelling and tasting of chemicals or worse” and
“E. coli outbreaks,” leading to contention between government
authorities and citizens over the potability of the water.1213 The
government ultimately admitted its mistake, and switched the
water source back from Detroit’s water system to the Flint
River.14 This switch was meant to be temporary, “[u]ntil Flint's
pipeline connecting to the KWA [was] operational.”15 Initially,
the switch seemed promising, as the Flint River was “[Flint’s]
main water source until the 1960s.”16 Bottled water was
provided and “[f]ederal and state funds are helping Flint fix its
broken water system.”17 Even though the crisis was eventually

17 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”
16 NPR.org, “Lead-Laced Water In Flint.”
15 NPR.org, “Lead-Laced Water In Flint.”
14 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”
13 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”
12 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”
11 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”
10 SITNFlash, “Biological Roles of Water,” 2019.
9 SITNFlash, “Biological Roles of Water,” 2019.

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identified  and temporarily resolved, including a $600 million
dollar combined settlement going towards the victims, the
damage of “drinking Flint's lead-tainted tap water” is going to
have long-lasting effects on the community, due to the likely
possibility of lead poisoning. 18 The Flint water crisis shows the
horrifying and potentially fatal results that can occur when
unclean water is provided to citizens, underscoring how
essential clean water is to human life.19 Clean water is essential
to life on earth and a livable environment.20

The right to clean water would provide the necessary
baseline of protections allowing for a livable context and
environment.21 As a fundamental right, clean water would be
provided, to the best extent it could given the circumstances,
and required, by the highest standards, for healthy lives and a
healthy environment. Clean water as a fundamental right may
have prevented the Flint water crisis by requiring greater
caution and may have protected the citizens of Flint by giving
them standing to sue with their concerns of their water quality.

A fundamental right to clean water would require a
standard upon which to base judicial decisions of what
constitutes clean water and the minimum requirements for the
clean water. In the Environmental Protection Agency (EPA)’s
“[r]egulatory [d]etermination 3,” “[t]o regulate a contaminant
[the Safe Drinking Water Act] requires that EPA determine
whether: [first] [t]he contaminant may have an adverse effect
on the health of persons,”22 and whether “a substantial level of
the contaminant will occur in public water systems with a
frequency and at levels of public health concern.”23 The third
requirement is that “regulation of the contaminant presents a

23 OW US EPA, “Regulatory Determination 3,” 2014.
22 OW US EPA, “Regulatory Determination 3,” 2014.
21 SITNFlash, “Biological Roles of Water,” 2019.
20 SITNFlash, “Biological Roles of Water,” 2019.
19 SITNFlash, “Biological Roles of Water,” 2019.
18 NPR.org, “5 Years After Flint’s Crisis Began, Is The Water Safe?”

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meaningful opportunity for health risk reductions for persons
served by public water systems” or that regulating the
contaminant would meaningfully reduce health risks.24 This
was certainly the case in the Flint water crisis where the levels
of lead—a well-known toxin linked to health issues like
memory loss, high blood pressure, and kidney disease—were
subsequently found in the residents blood. In addition to a
requirement of water for drinking and other basic needs, the
right to clean water also should include protection of natural
bodies of water like lakes, especially those in the public
domain, as this is also necessary for human and environmental
health. The structure for this is already in place with the Clean
Water Act, but making clean water a fundamental right would
strengthen the EPA’s ability to enforce this law and to protect
bodies of water in other ways. Currently, the Environmental
Protection Agency regulates clean water through “[t]he Clean
Water Act (CWA)” which “establishes the basic structure for
regulating discharges of pollutants into the waters of the United
States and regulating quality standards for surface waters.”25

Under this regulation, the wastewater management systems and
bodies of water are monitored for pollutants.26 Any disposal of
oil or other potential pollutants is regulated in order to maintain
human and environmental health.27 The Clean Water Act
establishes further regulators like permit programs to control
pollutant discharges.28 The amount of regulation and protection
show the importance of water and its impact on humans and
the environment. Supreme Court recognition of clean water as
a fundamental right, would support a broader definition and
reinforce its legal status. For example, this recognition would

28 OA US EPA, “Summary of the Clean Water Act,” 2013.
27 OA US EPA, “Summary of the Clean Water Act,” 2013.
26 OA US EPA, “Summary of the Clean Water Act,” 2013.
25 OA US EPA, “Summary of the Clean Water Act,” 2013.
24 OW US EPA, “Regulatory Determination 3,” 2014.

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allow for water access to be ensured beyond simply regulation
of pollutants.

The United Nations provides an example more
centrally focused on water access and availability while
providing international recognition of the need for clean water.
This further supports the case that clean water should be a
recognized right. The United Nations Sustainable Development
Goals consist of 17 SDGs “adopted by all United Nations
Member States in 2015” which outlines an active global
partnership effort to recognize international need and strategies
to create “peace and prosperity for people and the planet, now
and into the future.”29 The United Nations’ Sustainable
Development Goal 6 provides another standard definition of
clean water and how much is required by the world and
individuals.30 Scarcity of clean water is a major issue as
“[w]ater scarcity affects more than 40 percent of people, an
alarming figure that is projected to rise as temperatures do.”31

Guaranteeing a fundamental right to clean water will provide
necessary protection in the face of water scarcity.32 Water
security and access is necessary to our survival, health, safety,
and our environment. The United Nations recognizes this, and
the U.S. ought to do the same.

If the right to clean water were fundamental, then a
right to clean water would require the government to regulate
and undo pollution damage, as well as to establish national
regulations aiming to restore contaminated water sources or
preserve current water reserves. This responsibility would
likely fall to the EPA, and the Army Corps of Engineers would
be required to formulate and enforce water regulations in order
to ensure that all water within the U.S. is kept clean enough to

32 UNDP, “Goal 6.”
31 UNDP, “Goal 6.”

30 United Nations Western Europe, “Sustainable Development Goals (SDG
6).”

29 “THE 17 GOALS | Sustainable Development.”

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meet a standard baseline fulfilling this right. This would also
protect for future access and water usage which would further
achieve United Nations Sustainable Development Goal 6.

Clear Air

Much like clean water, the right to clean air is similarly
critical because it is fundamental to all health – global,
environmental, and human – which provides the context for the
constitutional promotion of “the General Welfare.” Clean air is
a “compelling government interest,” as everyone needs to
breathe it in order to live.

Air pollution is a result of contaminants, known as
pollutants, in the air, which are detrimental to human health
and to the environment. The United Nations monitors air
quality through the Global Environment Monitoring System for
Air (GEMS Air). 33 This program aims to improve air quality
through innovation and scientific knowledge.34 Good air
quality is necessary for human survival, as “[a]irborne
pollutants are responsible for about one third of deaths from
stroke, chronic respiratory disease, and lung cancer,” and “one
quarter of deaths from heart attack.”35 Air pollution can also
cause asthma, “a chronic, or long-term, condition that
intermittently inflames and narrows the airways in the lungs.36

The same airborne pollutants also alter the climate and affect
the health of the environment. 37 The sources of air pollution
vary “from cookstoves and kerosene lamps to coal-fired power
plants, vehicle emissions, industrial furnaces, wildfires, and
sand and dust storms.”38 A fundamental right to clean air would

38 U. N. Environment, “Why Does Air Matter?,” 2017.
37 U. N. Environment, “Why Does Air Matter?,” 2017.
36 “Asthma | National Heart, Lung, and Blood Institute (NHLBI).”
35 U. N. Environment, “Why Does Air Matter?,” 2017.
34 U. N. Environment, “Monitoring Air Quality,” 2017.
33 U. N. Environment, “Monitoring Air Quality,” 2017.

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create the opportunity to sue polluters, to reduce pollution, and
to further monitor air quality, giving the general population
increased control over the air they breathe.

Like clean water, the right to clean air requires a
standard to base judicial decisions and recognition as a
fundamental right would strengthen these current standards.
The Clean Air Act “authorizes [the] EPA to establish National
Ambient Air Quality Standards (NAAQS) to protect public
health and public welfare and to regulate emissions of
hazardous air pollutants.”39 The EPA sets standards upon which
it regulates pollutants and emissions.

Since clean air is not provided by the government the
way clean tap water is, it could be argued that it is not the place
of courts or the government to provide it. However, this
argument fails to understand that air is still maintained and kept
clean through government action. Due to the necessity of
government action to keep air clean, clean air should be
considered a fundamental right.

Current Governmental Protections for Both Clean Air and

Water

Several states have added provisions for clean air and
water to their constitutions, but these protections are still not
adequately extensive, and do not apply to the whole country.
For instance, New York State amended its constitution to
include protections for clean air and water in November 2021,
but the State Legislature is still in the process of appropriately
funding this endeavor.4041 Previously, Massachusetts and

41 NY State Senate, “NY State Assembly Bill A6566,” 2021.

40 Murray and Kominers, “The Human Right to Water in the United States;”
Food & Water Watch, “NY Votes to Enshrine Right to Water and Healthful
Environment in State Constitution,” Food & Water Watch, 2021.

39 OA US EPA, “Summary of the Clean Water Act,” 2013.

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Pennsylvania have recognized the human right to clean air and
water through their own constitutional amendments.42 These
states show that it is possible to provide constitutional
protection for these rights, but there is still a need for further
forward momentum to reach the federal government. The need
for clean water has become particularly urgent today in the
wake of droughts and other climate disasters. International Law
recognizes the right to water in several treaties, and in a United
Nations General Assembly (UNGA) resolution in 2010.43

Most recently, on July 28, 2022, “the United Nations General
Assembly agree[d] to declare the ability to live in ‘a clean,
healthy and sustainable environment’ a human right for all” as
an effort to increase urgency and work towards protecting the
environment.44 The European Court of Justice added the right
to clean air as a fundamental right in the European Union in
2014.45 In 2021, the World Health Organization published Air
Quality guidelines to protect clean air as “a basic human right”
and serve as “a global target for national, regional and city
governments” in reducing air pollution in a release of
guidelines which they regularly update since the first release in
1987.46 The most recent update “is in response to the real and
continued threat of air pollution to public health.”47 The United
Nations and its member states recognize the importance of air
quality and reducing air pollution to maintain clean air
necessary for human and environmental health as illustrated
further through the International Day for Clean Air for blue

47 “What Are the WHO Air Quality Guidelines?”
46 “What Are the WHO Air Quality Guidelines?”
45 UNEP, “The Right to Breathe Clean Air,” 2017.
44 World Economic Forum, “The UN Just Declared a New Human Right.”
43 Murray and Kominers, “The Human Right to Water in the United States.”

42 Food & Water Watch, “NY Votes to Enshrine Right to Water and
Healthful Environment in State Constitution,” Food & Water Watch, 2021.

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skies with the “Healthy Air, Healthy Planet,”48 and it is time for
the U.S. to do the same.

The rights to clean water and air should be understood
as fundamental rights as both clean water and air are important
governmental interests. The standard of fundamental rights
provides a robust, but baseline standard which would allow for
protection of these resources, access to these resources, and
ensure that they will be provided to all. This still leaves open
how exactly access would be provided. what this baseline
standard would look like exactly, but to some extent that goes
beyond the scope of this article and is still left open to debate
and discovery.

48 United Nations, “International Day of Clean Air for Blue Skies.”

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Brandeis University Law Journal Fall 2022, Volume 10, Issue 1

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