Governments Must Act Like Access to Water Is a Human Right, Because It Is

Increasingly, communities are facing threats to clean water from large industrial projects such as data centers and carbon capture and storage, or CCS, facilities that are being proposed and constructed in communities across the United States. The question is how should decisions about these facilities be made? Should government officials privilege capital and financial investments? Should they balance investment with other considerations such as noise, water, and energy costs?

Of all the issues raised by these large projects, water is one of the most crucial for the simple reason that we cannot live without water. Given this necessity, access to clean water must be treated as a human right with governments charged with the ethical responsibility to serve as the trustees of water to protect it for present and future generations. This responsibility to protect access to clean water as a human right must guide their decisions on data centers and CCS facilities and other large industrial projects.

Data centers are buildings, sometimes the size of large warehouses, that can contain hundreds of thousands of computer chips that provide processing and storage for online data including data used for energy-intensive artificial intelligence and cryptocurrency, as well as less energy-intensive activities such as storing websites and other data. Carbon capture and storage facilities capture carbon dioxide emitted from industrial facilities and store it underground to prevent the CO2 from escaping into the atmosphere where it would contribute to climate change. Carbon capture facilities can include factory-size machinery that removes carbon dioxide from industrial air emissions, pipelines that transport the CO2, and underground storage repositories. Data centers and carbon capture and storage facilities typically consume large amounts of energy and water. They commonly also have toxic emissions, posing further risks to air, water, and health.

People have a human right to a clean environment—an idea recognized by the United Nations and enshrined in the constitutions of multiple states including Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania. The provisions from Hawaii, Massachusetts, Montana, and Pennsylvania explicitly mention the importance of protecting water supplies. Pennsylvania’s Environmental Rights Amendment says, for example: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

Current projects being rushed through city councils or county boards, cloaked in non-disclosure agreements and granted tax credits, deny the public the right to full information about the project and undermine the ability of governments to fulfill its public trust duties.

Most constitutions, like Pennsylvania’s that contain the human right to a clean environment have a parallel provision, that asserts the responsibility of government to serve as the trustee of the commons or natural resources. For purposes of an ordinance on water, government, as the trustee of water, has a duty to make decisions that guarantee water quality and quantity now and into the future for the people within its jurisdiction.

If access to adequate, clean water is a human right—and given the uncertainty about water quantity and quality in light of unstable climate and weather patterns, increasing demands, and aging infrastructure—arguably the most appropriate decision-making tool for governments to use to fulfill its trustee responsibilities is the precautionary principle. The principle stands for the premise that we should take action, even in the face of scientific uncertainty, to prevent harm by

1. Setting goals;
2. Heeding early warnings;
3. Exploring alternatives to potentially harmful actions;
4. Placing the burden of proof on proponents of an activity rather than on those who might be disadvantaged; and
5. Using democratic processes to carry out and enforce the principle—including the public’s right to free, prior, and informed consent.

This principle is the commonsense idea behind many adages: “Better safe than sorry.” “Look before you leap.” “First do no harm.”

One step in implementing the precautionary principle to protect water requires special focus: the public’s right to give free, prior, and informed consent to projects that will impact water quantity and quality. The consent of the governed is fundamental to democracy as expressed in documents dating back to the Declaration of Independence. Current projects being rushed through city councils or county boards, cloaked in non-disclosure agreements and granted tax credits, deny the public the right to full information about the project and undermine the ability of governments to fulfill its public trust duties.

By protecting local water supplies that may be threatened by these new, energy- and water- intensive uses, communities can help ensure that our most important natural resource remains clean and abundant for generations yet to come.