‘Water is not a right,’ says Detroit bankruptcy judge

Detroit, Sept. 29 — U.S. Bankruptcy Court Judge Steven Rhodes ruled today to deny a moratorium on mass water shutoffs and dismissed a class-action lawsuit brought against the emergency-manager-run city of Detroit and the Detroit Water and Sewerage Department.

An entirely pro-bono team, led by prominent civil rights attorney Alice Jennings, had sought a temporary restraining order to stop the shutoffs, restore service to those households already shut off, and implement a six-month moratorium on further shutoffs to allow plans to be developed to truly help the poorest Detroiters.

A hearing on this motion took place Sept. 22 and 23 in the Detroit municipal bankruptcy case, in an adversary lawsuit filed by victims of DWSD’s mass water shutoffs, the Moratorium NOW! Coalition to Stop Foreclosures, Evictions and Utility Shutoffs, the Michigan Welfare Rights Organization, the People’s Water Board and the Michigan chapter of the National Action Network.

Jerry Goldberg, one of the plaintiffs’ lawyers, strongly denounced the judge’s decision: “He dismissed our case and injunction and said there exists no fundamental right to water, just like there is no fundamental right to a job or health care. Although he acknowledged the city’s plan would leave thousands of Detroit residents without water and no way of making payments, he had the gall to state that the balance of harm would not be to these thousands of families, but to the creditors and bondholders.

“Rhodes said outright that the loss of potential revenue was a greater harm than loss of water to tens of thousands. He clearly wants the establishment of the regional Great Lakes Water Authority and privatization of DWSD,” Goldberg told Workers World.

Which side are you on?

It became clear on Sept. 22 when the hearing began where the two sides — the people of this majority African-American city and the emergency-manager-run, state-ruled city — lined up: The plaintiffs asserted that water is a fundamental human right, a necessity to health, hygiene and sanitation as well as quality of life. The defendants said “water is a commodity which must be paid for,” with absolutely no regard for the people facing shutoffs.

Lead plaintiff Maurikia Lyda, a mother with four children aged 5, 10, 13 and 14, testified that her water was turned off in June because of an outstanding bill of more than $1,000. She receives Social Security insurance and could not afford her payments. “That day the truck came and shut off seven or eight other homes” on her block, said Lyda. She could never get through to DWSD and when she finally did, no one told her about a payment plan, asked about her income or if there were children in the household. “They basically didn’t care,” said Lyda. Her water service was miraculously restored July 21, the same day her lawsuit was filed in the bankruptcy case.

Plaintiff Carol Ann Bogden testified that her water has been shut off since July. Now 68 years old, Bogden was an emergency-room trauma nurse for 18 years. Her spouse died eight years ago and she had to go on Social Security disability because of heart problems and seizures. She also cares for her adult son, who has chronic and acute pancreatitis, diabetes and hypertension. She fell behind on her water bill because of expenses related to his care.

Bogden said she found out she was about to be shut off when she came home one day and saw the “blue line” on the sidewalk in front of her house. “I was embarrassed and cried because of the blue line, because people knew what was happening.” Because her purse had been stolen and she had no current state-issued identification, DWSD refused to allow her into a payment plan.

With a current bill of more than $1,100, none of the agencies the city’s Department of Human Services gave Bogden to contact had the funds to help her. “I used to be a person in the community that others would come to for help,” she testified. “I never thought I’d be in this situation. I’m not looking for a handout. People who know me know it’s always been vice versa.”

Adverse witness Susan McCormick, general chief executive officer for DWSD, said that in 2013 some 24,000 residential shutoffs occurred. “How many of these homes had occupants?” asked a plaintiffs’ attorney. “I don’t know,” she replied. When asked how many homes had service since restored; the number of children living in each home; how many had people with disabilities living there; and the number of empty homes, her answer remained: “I don’t know.” Most of the spectators laughed derisively at the end of her testimony.

DWSD officials and representatives from Mayor Mike Duggan’s office touted their new “10-30-50” payment plan as the solution to the water shutoff crisis. A resident in the plan can have their water service restored by paying 10 percent of the back bill, and then paying the arrearage off over 24 months on top of their current water bills. If they miss one payment, 30 percent of arrearage is required, and two missed payments require half. However, on examination by plaintiffs’ attorneys and even Judge Rhodes, DWSD officials admitted that this plan will do little to help the thousands of Detroiters who cannot pay their bills, due to the terrible poverty existing in this majority-Black city.

Despite the payment plan, 300 to 400 Detroit homes per day have had their water shut off since the moratorium on shutoffs was lifted on Aug. 25, and at least 2,000 of these families continue to live without water in their homes, admitted Darryl Latimer, DWSD deputy director and head of customer service.

People’s fightback will continue

Water affordability expert Roger Colton testified that according to 2012 census figures, 20 percent of Detroit’s population live on an income that is 50 percent below the federal poverty level; 40 percent of the population are below the federal poverty level, and 55 percent of Detroiters have incomes below 150 percent of the federal poverty line.

Colton proposed that the solution to the water crisis in Detroit is for the DWSD to implement a water affordability plan, where water rates are set at 2 percent of income or 3 percent with arrearages added. Two percent of income is the level recommended by the Environmental Protection Agency.

Goldberg summed up: “The Detroit case boils down to the question of whether water is a human right or just another commodity whose provision is dependent on the whims of bean counters and bond holders. The fact that the new Great Lakes Water Authority, which is slated to take control of the DWSD, mandates that the anti-human, anti-union Veolia Corporation be brought in as an advisor on how to run the department makes clear where the city stands. Rhodes obviously agrees.”

Activists with the Moratorium NOW! Coalition and other groups assert that the fight for the fundamental human right to water and to stop the mass shutoffs will continue. On Oct. 18, two special rapporteurs on global water issues for the United Nations will arrive from Geneva to begin a three-day fact-finding visit to Detroit.