You Don’t Have A Right To Clean Water
Sources
Sterling v. Jackson, Mississippi, 5th Circuit Decision: https://www.ca5.uscourts.gov/opinions/pub/24/24-60370-CV1.pdf
Sterling v. Jackson, Mississippi original complaint: https://www.lieffcabraser.com/pdf/Jackson_Complaint_Filed.pdf
Younes, Lylla. A pot of unspent federal money could have prevented Jackson’s water crisis. Grist. May 23, 2024. https://grist.org/accountability/epa-federal-money-jackson-mississippi-water-crisis/
Oyshi, F. H., Chhour, K., Womack, F., & Carrasquillo, M. E. (2025). The Cost of Aging Water Infrastructure and Environmental Racism: The Jackson, Mississippi Water Crisis and Access to Funding. Environmental Justice, 18(5), 324-330. https://doi.org/10.1089/env.2022.0117
Shelton, Lindsey. Five things to know about the ongoing Jackson, Mississippi, water crisis. SPLC. May 7, 2026. https://www.splcenter.org/resources/hopewatch/five-things-about-jackson-mississippi-water-crisis/
Hurwitz, Sophie. You Don’t Have a Right to Safe Drinking Water, US Court Rules. Mother Jones. September 5, 2026. https://www.motherjones.com/politics/2026/09/drinking-water-mississippi-lawsuit/.
Transcript
In late August, 2022, a torrential downpour dropped 12 inches of rain across the state of Mississippi in a matter of hours, causing the Pearl River to overflow. That flood in turn caused water treatment plants in Jackson, the capital of Mississippi, to become overrun. Across the city, an estimated 180,000 residents lost access to drinking water. For some, the pressure fell so low that no water came out. For those who still were able to get water from their taps, it was often brown, sometimes with visible particles floating in it. For literal years after this complete system failure in Jackson, residents reported finding lead and e coli and other bacteria in their drinking water when they conducted at home tests. The water coming out of their taps was the color of tea. Today, some testing shows that generally speaking Jackson’s water is safe to drink, but that safety is on a house-by-house basis, and depends on where in the system you conduct the test, as the aging infrastructure means that certain areas of pipe are eroding, leaking, and failing. One bad thunderstorm can cause outages for days. Boil water notices have been commonplace in Jackson for over a decade. And residents of Jackson, 80% of whom are black, a quarter of whom live in poverty, twice the national average, have recently seen a rate hike for their water of 12%, and thousands of residents have faced eviction even if they’ve paid their rent on time. They pay the landlord rent that is supposed to include water, the landlord doesn’t pay the water bill, the water gets shut off and the tenants receive forced relocation notices and are given 48 hours to vacate their homes. And to add insult to injury, last week the 5th Circuit Court of Appeals ruled that they have no constitutional remedy, that the constitution doesn’t protect the drinking water of the people of Jackson, Mississippi, or people anywhere in the US. Humans can survive for three days without water. But in the US, the constitution doesn’t apply. What’s happening in Mississippi, including that 5th circuit opinion, is the culmination of decades of failures, at a systemic level, at literally every level of government, that paint a picture of just how vulnerable communities in the richest country on earth are, of how close certain communities are to becoming completely unlivable. Jackson is pretty much there, it was recently named the most rapidly shrinking city in the country. But those left behind are the ones who couldn’t leave, who are often the most vulnerable, and who will be left to fend for themselves in a country that does not care whether they live or die.
Before we even talk about this ruling out of the notoriously conservative 5th Circuit, we have to go back in time. Starting as early as the 1970s, the federal Environmental Protection Agency has been issuing warnings to Jackson about the state of its aging infrastructure. Jackson, like many major industrial cities in the US, saw a spate of white flight around this time, pushing white people to the suburbs, leaving black people in the city, earning less money and paying less in taxes, resulting in a loss of funding for basic water infrastructure in the city.
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So just as the water infrastructure is aging, Jackson is experiencing a rapid decline in its tax base. Jump ahead to 1996, the federal Safe Drinking Water Act was amended to create the Drinking Water State Revolving Fund, or DWSRF. These are federal dollars, sent to states, to be managed by state environmental departments that review applications from local governments within the state and distribute funding. And the EPA is supposed to keep an eye on where that funding is going to make sure it is being distributed fairly. The problem with the DWSRF is that, because it’s a revolving fund, it’s not a grant program but instead a loan program. Municipalities who get the money are expected to pay back the low interest loan, but the terms are often still not manageable for the lowest income municipalities. So Jackson has been awarded the loan 3 times in its 25 year history, whereas, for example, the Bear Creek Water Authority, in a rural white part of the state, has gotten 9 loans. Part of that might be due to an inability to pay the loans back, part of it may be due to structural, implicit or explicit racism.
When Mississippi was hit with Hurricane Katrina in 2005 and the BP Gulf Oil Spill in 2010, the federal government gave the state billions in emergency and reactive assistance. But over time much of those funds were left unspent, transparency in how the money WAS spent was lacking, and some of the money was used to fund projects completely unrelated to the state’s environmental and natural disaster preparedness. So, because of decades of evidence, even when the state gets federal funding, local leaders and activists on the ground in Jackson are skeptical that they’ll ever see any benefits from those funds.
And at least as early as 2015, the EPA knew that there were dangerous levels of lead in Jackson’s drinking water, because of its own oversight, and yet routinely rubber stamped continued federal funds to Mississippi, knowing that the state wasn’t properly proportioning the funds to go towards Jackson. And even before then, in 2011, the EPA’s own Office of Inspector General, the independent body meant to inspect the EPA’s practices, found that the EPA wasn’t conducting proper oversight into its clean water programs. While the EPA can’t necessarily dictate how a state spends the money, it can prod the state into compliance through warnings and inspection failures. Instead, over and over again, despite knowing that there were dangerous levels of lead in Jackson’s drinking water, the EPA continued approving Mississippi’s use of federal funds. And despite knowledge, at multiple levels of government, that catastrophic failure was only a matter of time for the water infrastructure in Jackson, it wasn’t until after that failure occurred in August 2022, that anything was done about it.
The Department of Justice under Joe Biden sued the city of Jackson Mississippi and put them under a consent agreement with the DOJ to try to facilitate improvements to their drinking water. In November 2022, a federal judge appointed a man named Ted Henifin, an engineer, to manage the city’s water system. And in December, Biden sent an unprecedented $600 million dollars to Jackson Mississippi to improve their water infrastructure. With Henifin in place, that money went entirely to him to manage. Henefin, in turn, founded a private company to oversee the rebuilding of Jackson’s water infrastructure. A private company is not subject to the same level of public disclosure requirements. The only insight that the local population has into Henefin’s use of the funds comes from his mandated quarterly reporting to the judge. That quarterly reporting has, for a while now, confirmed that there’s nothing to see here. Tests at the water processing plant show that Jackson’s water is contaminate free. And yet. Jackson residents still regularly reach out to the Mississippi Rapid Response Coalition, a nonprofit that provides assistance where the state falls short. And at least as recently as 2024, their most common complaint received was water issues in Jackson. And when they went to residents homes and tested the water coming out of their taps, they often found lead, e coli, or other bacteria or contaminants, at dangerously high levels. Just because Henefin can claim that the water leaving the treatment facilities is clean, doesn’t mean that, after traveling through old decrepit pipes, the water reaching residential homes is safe to drink. And Henefin appears to be abdicating any responsibility for any part of the system outside of the water treatment plant.
And that’s a common theme in all of this, at every level of government from the top down, every person or institution that could step in and help ensure clean drinking water for the people of Jackson has abdicated their duty to do so. Has said that’s not my problem, that’s someone else’s. Especially under the Trump regime, the feds say leave it to the states to manage. Then the governor of Mississippi, Tate Reeves, a Republican who has historically been hostile towards Jackson’s majority black and Democrat city council, says no no local municipalities need to deal with this, they’re the ones that need to raise the revenue to fix this. In fact he vetoed state assistance from going towards helping Jackson residents with paying off their water bill debts. And the Mississippi state legislature has blocked Jackson from raising taxes to fund the system. Jackson, Mississippi is the state capital, it is also home to six colleges and a VA medical center, none of which pay their fair share towards the water infrastructure in the area. Those institutions qualify for reduced water rates of up to 25% less than the rate charged to Jackson residents. And when Jackson attempted to increase tax revenue, the Mississippi state legislature shut them down.
And so, the people of Jackson who were most harmed by this ongoing abdication of any responsibility, gathered together and they sued the city of Jackson and its leadership back in 2022, not long after the complete failure of the water system there, alleging that state officials violated the residents constitutional rights.
According to the complaint, quote “even before the water supply failed, Jackson’s water supply was not fit for human consumption due to the high levels of lead and other contaminants, in violation of Plaintiffs’ right to bodily integrity protected by the Due Process Clause of the Fourteenth Amendment, the federal Safe Drinking Water Act, and the Environmental Protection Agency’s Lead and Copper Rule, and other law. Children, comprising a quarter of Jackson’s residents, are especially susceptible to the devastating and life-long damages of lead poisoning. This public health crisis, decades in the making, was wholly foreseeable by Defendants’ actions and has left Jackson residents in an untenable position – without access to clean, safe water in 2022 in a major United States city.”
The complaint further alleges that Jackson officials knew of increasingly dangerous lead levels in Jackson’s water as early as 2013. Due to local mining in the area and various sourcing of water for Jackson’s population, the acidity of the water being sent to Jackson’s residents was increasing in this period. The higher the acidity, the more erosion on pipes. The more erosion, the more lead is leached into the water system. The Mississippi State Department of Health had flagged Jackson’s water supply as being at high risk of causing lead poisoning in children. And in 2015, tests of water in Jackson indicated dangerously high levels of lead. Local leaders in Jackson, including the mayor, knew of this high risk of lead contamination and the devastating long-term impacts that lead poisoning can have especially on children and, according to the complaint, they did nothing about it and, in fact, deliberately hid the information from the people of Jackson for at least six months, who continued to drink lead-contaminated drinking water, thinking that it was safe because their water authority told them it was safe. It wasn’t until the spring of 2016 that the city began issuing boil water notices. This was, again, negligent on the part of city officials. Boiling water may kill off bacteria, but it does nothing to get rid of lead in water and in fact makes the water more toxic because as you boil it, the water evaporates while the lead remains, actually increasing the number of lead particles in every ounce you drink. Nevertheless, Jackson has issued dozens of boil water notices while not ever actually doing the work to remove the old eroded lead-filled pipes or address the high acidity of the source water for Jackson’s residents. And so, the failure of the water treatment plants in August 2022 simply added insult to ongoing injury. The outdated infrastructure and mechanical failures were in addition to and separate from the lead contamination that had already been identified and ignored in Jackson, but were part of the larger systemic failure of the city of Jackson to take any accountability or action to ensure that the people living there were safe from contaminated drinking water.
And as a consequence of the actions of the city leaders in Jackson, the plaintiffs in this lawsuit allege they experienced severe issues because of their unknown exposure to contaminates in their drinking water. Priscilla Sterling’s name appears first in the lawsuit. Several of her children have been diagnosed with lead poisoning. Priscilla suffered from recurrent headaches. Her 24-year old daughter has a learning disability and recurrent yeast infections. The entire household frequently experienced unexplained bouts of full body itching and rashes. Each of the other named plaintiffs experienced similar symptoms. And their lawsuit is seeking redress from the city of Jackson and its leaders who knew they were actively being exposed to dangerous contamination, did nothing and, in fact, actively hid that information from the public for at least six months.
In their lawsuit, they claimed that the actions of the city violated their 14th amendment right to due process, specifically the right to bodily integrity and their right to be free from state created danger. And you might be like wait Leeja the 14th amendment doesn’t say anything about bodily integrity or state created danger? And you’d be right! The 14th Amendment’s due process clause says no state shall deprive any person of life, liberty, or property without due process. There’s procedural due process that stems from this provision–meaning every person is due the proper procedure before they are deprived of life, liberty, or property, and usually that procedure involves some kind of notice and an opportunity to be heard. But then also stemming from the due process clause is your SUBSTANTIVE due process rights. That is, what actually is protected when we say “life, liberty, and property.” Those are kind of vague, wide-ranging ideas. And it is especially within the idea of “liberty” that we derive a lot of the substantive rights from the 14th amendment. Or what the justices would poetically call the “penumbras” of the 14th Amendment, the rights within the shadows cast by the ideas of life, liberty, and property. That’s also been the favorite area where the current Supreme Court has been attempting to cut away at rights that the same court has established for decades, like the right to an abortion.
And so, the central question in this case is does this violate these plaintiff’s rights under the 14th Amendment, especially to liberty. Bodily integrity has already been established by legal precedent to be something that is protected by the 14th Amendment, both by the Supreme Court and by the 5th Circuit that decided this case. Your right to liberty includes your right to be free from being forced to undergo a surgical examination, your right to liberty includes your right to be free from being sexually assaulted by a police officer, your right to liberty includes your right to not be forced to get your stomach pumped in order to obtain evidence against you. Your right to liberty includes your right as a prisoner to not be medicated against your will. All of these are existing cases that found that someone’s 14th amendment due process rights were violated because there is a fundamental right, within the 14th amendment, to bodily integrity. You cannot have liberty if you do not have bodily integrity. Similarly, there is precedent that has established you have a right to be free from state-created danger. The state cannot knowingly put you in danger, that is a violation of your due process rights. Again, how could you ever really have liberty if you’re constantly being put in danger by the state, that’s not liberty. The Supreme Court has not weighed in on this right to be free from state-created danger, but 10 of the 13 federal judicial circuits have adopted the doctrine wherein a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result. The 5th Circuit of course is one of the circuits that has not adopted the doctrine, but neither has the circuit declined to adopt it, either, they’ve remained on the fence about it for decades. So it was a worthwhile case to bring before the circuit because there is so much existing precedent in so many other circuits to support the contention that the state ought to be held accountable for the foreseeable injuries that result from it knowingly putting people in danger.
And so these plaintiffs filed a complaint plausibly alleging facts that could rise to violations of their 14th Amendment rights. After a person files a complaint, the opposing party can file a motion to dismiss the complaint for failure to state a claim. This motion basically says the allegations in this complaint are so flimsy that even if they were taken at face value as true they still don’t even meet the required hurdle of stating a claim against us to begin with, so let’s all save some time and just dismiss this claim now instead of going through lengthy litigation over allegations that don’t even meet the basic criteria. A lot of cases end at this stage due to a failure to state a claim, but it’s not an incredibly high bar. Because at this stage you’re not proving anything, you’re just required to state enough facts to show that, if you CAN prove they are true, you would have a plausible claim against the people you’re suing. And it is at this stage, this early motion to dismiss, that this case failed. And that is another slap in the face. It’s not just a ruling that these people have no constitutional protections against the city of Jackson, it’s a ruling that the bare idea that they might think they have any constitutional protections at all is so far flung we’re not even going to let it get to the discovery stage, we’re not even going to let them try to prove it.
And in ripping away the opportunity for these plaintiffs to attempt to show their constitutional rights were violated, the conservative 5th circuit, a 3rd of whom are Trump appointees, didn’t even do them the justice of writing a thorough or well-reasoned opinion. To say that this opinion out of the 5th circuit was sloppy, lacking in basic legal reasoning, and failed to address all of the petitioner’s complaints, is an understatement. Its own dissenting opinion notes that it is “confounding” that the majority didn’t even bother to address one of the two major 14th Amendment claims when dismissing the case. And this miscarriage of justice is another in a long line of abdications of duty to the people of Jackson, Mississippi. And the hatred that the majority opinion holds for the people of Jackson, Mississippi, who they know to be majority black and often incredibly poor, is fucking palpable.
Essentially, the majority opinion engages in intellectual dishonesty by saying very narrowly that it’s crazy for these plaintiffs to think that the constitution protects their right to be free from exposure to contaminated water and their right to accurate information from public officials. That’s what they boil their complaint down to. Well, obviously the 14th Amendment doesn’t say you can’t be exposed to contaminated water or expect accurate information from public officials, that’s too specific, that’s beyond the scope of the constitution, it's crazy of you to even think that that could ever be included in the constitution. This is intellectual dishonesty because that’s not what the plaintiffs are claiming. The court is simply construing their claim incredibly narrowly in an attempt to make them seem ridiculous. The plaintiffs are claiming they have a constitutional right to bodily integrity when a state physically intrudes on a person. Again, there is precedent showing the 14th amendment protects against forced surgical examination, forced stomach-pumping for evidence, and medicating prisoners against their will. But the 5th circuit says no this case isn't like those cases, there are other cases that have found that not every governmental action that has a bodily effect violates a person's right to bodily integrity. To support that contention, the court cites to a case that made the finding that a person has no right to physician-assisted suicide. So the court is saying this right to not be lied to and given contaminated drinking water is more like the right to physician assisted suicide and less like the right for prisoners to not be medicated against their will. Which defies credulity, if you ask me. What are humans in need of clean drinking water to survive who depend on a state entity to provide that water and who are lied to about the contents of said drinking water but prisoners being lied to about the substances they're being fed, a clear violation of their right to bodily autonomy under the 14th amendment's due process clause and completely in line with judicial precedent.
And throughout the majority opinion, the court repeatedly states the importance of history and tradition. Indeed, didn’t the Supreme Court in Dobbs, while stripping the people of the right to an abortion, make it very very clear that history and tradition should be looked to any time we try and assess the rights granted to us by the 14th Amendment? And the court claims there simply is no history or tradition that confirms a person’s right to be free from contaminated drinking water. Again, construing the plaintiffs argument in an incredibly narrow way to try to make it seem as ridiculous as possible, while also providing no evidence that there ISN’T history and tradition of protecting drinking water. We’re just supposed to take their word on it, I guess. And yes of course proving a negative is difficult but surely as experienced and knowledgeable jurists they should be up to the task?
Over and over again in this opinion, any legal arguments or precedent that are inconvenient to the court’s argument are either glossed over or ignored entirely, instead of honestly engaged and reasoned with. For example, in the ongoing Flint, Michigan water crisis, the 6th circuit found in 2019 in a case called Guertin v. Michigan, that in fact the right to bodily integrity, in relation to clean drinking water, was actually an indispensable right encompassed under the 14th Amendment that has a long and impressive constitutional pedigree. Instead of grappling with that, the 5th Circuit simply said well they’re a different circuit so we don’t have to listen to them, and even if we did, we agree that the right to bodily integrity is suuuuper important and so we wouldn’t want to SULLY such a deeply important right by expanding it willy nilly anytime anyone wanted us to. Which is again, a level of intellectual dishonesty that lays bare just how much these judges fucking hate the people of Jackson, Mississippi. If a right really is that important, would it not mean that anything that violates that deeply important right should be protected against? You are not upholding the sanctity of a right by saying it doesn’t extend to much of anything at all.
And the court leans HEAVILY on the Supreme Court’s Dobbs decision throughout its opinion, which also doesn’t really square with their whole obsession with history and tradition given the fact that the Dobbs decision is just a couple years old. In fact they harp on about history and tradition over and over without ever actually pointing to anything from history or tradition to back up their arguments.
And then they add insult to injury after saying the claims fail by going on to say oh also even if they DIDN'T fail, they don't amount to the violation of a CLEARLY ESTABLISHED right, so the public officials would get qualified immunity anyway. The court says there's no clearly established right to lead-free drinking water and truthful information from public officials--but if you take a step back this is also disingenuous. The reason we want to protect public officials from personal damages lawsuits is because they need to be able to reasonably conduct their work without fear of liability, and so we don't want people to be allowed to sue them unless the thing the official is being sued over is clearly established, that they would know what they were doing was wrong. Frankly I still think that's too much protection, but sure I get the idea. The reason there's not much precedent on point is because it's REALLY FUCKING OBVIOUS THAT PUBLIC OFFICIALS SHOULDN'T LIE TO PEOPLE ABOUT LEAD-CONTAMINATED DRINKING WATER. Historically it hasn't really needed stating. And you're telling me there isn't a regulation on the books about truthfulness from public officials or about the cleanliness of drinking water? I’m sure there is. But I couldn't tell you about them with specificity because the 5th circuit didn't even begin to bother with addressing them. They just said nope they don't exist.
As the dissenting opinion points out, the 5th circuit doesn't even address one of the plaintiff's two main claims, which is the right to be protected from state-created danger. The court doesn’t even bother addressing it. And what do you know it's because the law doesn't square with their holding.
The dissent says a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries as a result. That precedent exists in the vast majority of other circuits. Some of the plaintiffs in this case say their children got lead poisoning. From drinking water with lead in it. That the officials knew was there and lied about. Yeah I'd say that's a foreseeable injury. The fact that the majority didn’t even bother to address the issue is a sloppy insult that doesn’t just happen by accident–you don’t make it to the 5th circuit by being so careless that you miss entire claims, even if you’re a Trump appointee–the majority court knew exactly what it was doing, it was communicating to the plaintiffs that the court thinks so little of them and their stupid little claims that they don’t even warrant a response.
And it is this complete disdain and disregard that is part and parcel of the way the system, from the top down, has dealt with the people of Jackson, Mississippi, for literal decades. At every step, the people in charge of protecting them from harm have said “it’s not my problem.” And the 5th Circuit said it, too, saying it’s not on us to extend the protections of the constitution to you, it’s on you to elect better leaders and hold them accountable. But every leader and every level of state and federal government has failed the people of Jackson. And it’s not just Jackson.
As we’ve seen this summer and frankly for years, certain places, Flint, Michigan, Jackson, Mississippi, Gary, Indiana which was just without power for two full weeks, Houston, Texas, and the people who live there, black and brown people, poor people, are being failed by a system that has abdicated its responsibility at every turn. And all of this was foreseeable, not only the degraded water infrastructure that Jackson had been warned about for years. Climate scientists have been screaming for decades about the fact that climate change will impact everyone but it will be the poorest communities that get hit first. And the torrential downpour that caused the Pearl River to overflow and the water pumps to fail in Jackson is a small example of the climate upheaval and the indirect catastrophes that it can cause especially in communities that are already underserved and already have failing infrastructure largely because of systemic racism.
And it won’t be until the billionaires watch their mansions sink beneath the ocean that there will finally be the political will to do anything about it. I do think we’ll get there. I think that eventually the discomfort that rich people feel from climate change, not all of whom have bunkers, will get bad enough that politicians will finally do something. But black and brown communities and poor communities will have to suffer, and have been suffering, for decades, before we ever get there.
The key lesson I take from all of this is unfortunately not a bright and sunny one. We do know how to fix this, we have the technology to turn climate change around and it’s becoming affordable enough to produce that it’s doable for many countries, especially the biggest polluters like the US to cut emissions and slow climate warming. Yes there are reports coming out that we’ve blown past goals at limiting warming, but it’s not “too late” for the climate, there is still time to make it “less bad.” So that’s good. Again, the will to do it won’t be there until the rich are uncomfortable enough. And so if anything this Trump administration and the increased catastrophes tied to global warming and global inaction about those catastrophes has indicated to me that no one is coming to save us. And I’m not talking to you from some high horse, here in Ireland small communities are enduring the noise and pollution from vast expanses of data centers. Data centers now use fully a quarter of the island’s energy and we’re all paying more for electricity because of it. I’m not sure if you know this but Ireland is notoriously an incredibly damp place. The emerald isle. It was on fire this summer. There were bans on water usage for garden hoses. Global warming is a phenomenon that impacts everyone everywhere in the world, but it does not do so equally. And we need to be prepared for the fact that our governments aren’t going to act until we’re all a fuck of a lot more uncomfortable. This means, again, as I always say, making sure you know your neighbors and are part of a community. This is not a time to move off grid necessarily, instead it’s a time to plan for the worst and assume the government is going to do the bare minimum, if anything, to help you. Make friends with your local farmers. Figure out who you know who has an extra barrel you can put under your downspout to collect some rainwater. Learn to grow some vegetables or make friends with people near you who can. Don’t go full blown prepper, that fear and paranoia is easy to take advantage of and a bunch of conservatives will be down your throat selling you slop buckets, also prepper content is really fucking depressing and I do NOT recommend falling down those rabbit holes. But it is no longer crazy or paranoid of you to want to know how to be a bit more self-sufficient. No, it’s not fair that this falls on us when it is squarely within the purview of our governments to be doing this. And we should still push our elected officials to do something and not become apathetic. No, it is not fair that many people don’t have the resources to buy a rainwater collection system or an aesthetic raised garden bed setup. There are ways to work on self-sufficiency that don’t require a huge amount of resources. I encourage you to google the solar punk movement or check out the solarpunk subreddit. I find those corners of the internet to be more positive, helpful, and hopeful, and full of good resources for how to take care of yourself and your community no matter what resources you have access to.
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