Water Archives

Two of my professors from Northwestern Law wrote this article at the end of July on the Supreme Court's Rapanos decision. Koppelman and Dana open their opinion piece by claiming that, under the Rapanos interpretation of Alito, Thomas, Scalia, and Roberts, "Americans would have to drink contaminated water, that New Orleans would have to sink into the sea, and that Congress would have no power to do anything about either." They are unhappy with the Commerce Clause jurisprudence of those four justices (though given his concurrence, I have some doubt how wedded Justice Roberts is to the Commerce Clause line that the two would have him tow.)

I take issue with three of Koppelman and Dana's assumptions. Their first problematic assumption is that the states and private actors would not step up in the absence of federal action to protect drinking water or the city of New Orleans or to protect wetlands as challenged under Rapanos. Reliance on the federal government to solve these problems also seems ill-placed given that federal flood insurance and the work of the Army Corps of Engineers created many of the dangerous situations in areas such as New Orleans by encouraging people to move into areas where otherwise sensible Americans would not attempt to live. Federal subsidies for swamp busting throughout history destroyed many of the wetlands that the federal government now purports to save, which then led to the Rapanos litigation. And historically, the states and localities have engaged in the actual work of providing clean drinking water. It is true that states and private actors have joined the federal government in efforts to destroy wetlands, but they also engaged in restoring and protecting such wetlands --- often before the federal government took any action. State efforts to protect wetlands began in the 1960's, while the federal efforts did not get really going until the mid-1970s (See fellow Commons' contributor Jonathan Adler's piece here. To assume that wetlands would not be protected absent federal action or that our drinking water would not be potable is unsupportable.

Second, it is not accurate to assume that a more limited Commerce Clause interpretation would extinguish all federal efforts at wetland protection, providing clean drinking water, or protecting hurricane-prone ports. The taxing and spending power would still allow for block grants to the states for different projects that could fund both wetland preservation and restoration, the cleaning of drinking water, and port protection. As Adler notes, the Wetland Reserve Program and the Partners for Wildlife program funded by Congress have led to successful voluntary wetland restoration --- and generally at a much more cost-effective rate of wetland protection than under the Clean Water Act provisions of Section 404 that Koppelman and Dana are worried the more conservative justices' Commerce jurisprudence would undermine.

Third, the two authors give short shrift to the ability to amend the Constitution. It is indeed a difficult process to amend the Constitution to provide Congress with greater powers as Koppelman and Dana note. But it is meant to be difficult as the founding fathers were frightened of increased government efforts to encroach into the private sphere. But if it is ridiculous to think that Congress could not regulate the quality of drinking water as Koppelman and Dana claim, then getting the super-majority required to provide such powers though amendment should not be impossible since persuading a sufficient majority of the representative public about such ridiculousness should not prove difficult. Unless, of course, a large enough majority disagrees with Koppelman and Dana's assessment and thinks in fact that the ridiculous notion is that we need the federal government to take care of every problem.

I have written an article in the UK's Daily Telegraph today, which discusses the nature of water scarcity in the UK, and what we can do about it. Some of the comments posted on the Telegraph's website in response are worth reading. (I will post answers to some of the queries on this post at The Commons.)

Yesterday protesters at the World Water Forum -- surprise surprise -- condemned the Forum as a corporate boondoggle. (Read press release by the Sustainable Development Network) Yet a majority of speakers and participants are individuals who have dedicated their own intellectual and entrepreneurial skills to tackling important water issues.

Just once, instead of banners, I'd like to see these activists (who include public sector trade unions from wealthy countries) put up a screen and a PowerPoint presentation which outlines their specific strategy for delivering water to the poor. My guess is that it would be blank.

Throughout Latin America, these people are referred to appropriately as globofobicos (e.g. fearful of globalization). I'm a strong proponent of adopting this term in the English language.

Mexico City: The city has been overwhelmed with numerous protests by anti-corporate activists, who have flown in to coordinate the disenfranchised masses another global meeting (as if it matters, they are here to protest the IV World Water Forum in Mexico City).

I thought the world should be forewarned about these deceptively sweet-looking children (corporate liasions in training) who were spied by your correspondent at the conference center today.

Read yesterday's response by the Sustainable Development Network

Law.com has this article on Alito and the Supreme Court's upcoming Clean Water Act cases.

Senator Larry Craig is zeroing out funding for the Fish Passage Center, an organization that collects slamon population data in the Pacific Northwest. It seems Senator Craig believes the data is too advocacy-oriented, perhaps because it suggests that reducing water flow through hydro turbines (and increasing spillage over hydropower dams) is necessary to maintain current salmon populations. Historically the Fish Passage Center has been funded by the Bonneville Power Administration, a federal agency that sells subsidized hydropower from federal dams. This year, however, Senator Craig inserted language into the energy and water appropriations bill blocking any BPA funds from going to the center during the coming fiscal year. According to a Craig spokesman, "This is about improving the program, taking advocacy out of science and ensuring we have dams and salmon in the Northwest."

The Supreme Court granted cert to two Clean Water Act (CWA) questions on Tuesday. One of them could lead to another showdown on the Commerce Clause.

The first question is whether the Army Corps of Engineers may regulate wetlands that are only hydrologically related to a navigable waterway or whether the wetlands must "directly abut" a navigable waterway. In light of the Supreme Court's 2001 SWANCC decision, the 4th, 6th, 7th, and 9th Circuits have said the former while the Fifth Circuit has required the latter. To answer this question, the Supreme Court has consolidated two cases out of the 6th Circuit, Carabell v. Army Corps of Engineers and Rapanos v. U.S..

Excellent column in the 8/25 Financial Times by Fredrik Segerfeldt on "The Private Sector cn get water flowing to the poor." Full text for subscribers only, unfortunately.

Segerfeldt, author of a Cato book on water rights, makes a strong case that private companies deliver clean, safe water to more people, and so improve the lives of the poor who are more likely to be without water, and also lower the cost of water to the poor, who now buy clean water at high prices from small vendors in small quantities.

As a result, even if water prices for existing customers rise (a frequent charge of privatization opponents), water prices for the poor fall under privatization.

I did get a little worried at the end when he began to talk about the need for more requlatory oversight of the contracts with the private firms (this was ever so successful with regulated utilities in other areas....). I have some more comments on the ethical issues raised by the column here.

The book is Water for Sale: How Businesses and the Market Can Resolve the World's Water Crisis (Cato Institute).

If you are going to read about water markets, you also need to read Terry Anderson and Pam Snyder's Priming the Invisible Pump.

As every Summer, Italy is under stress because of water shortages. Irrigation resources are threatened, according to a farmers' association. Luckily, the situation is still under control. The problem is more general. If water problem is felt like a real one -- as all Italian newspapers' frontpages have been suggesting in the last few weeks -- then a long term solution should be considered. In Italy water is mostly managed by formally private companies, that are actually owned by municipalities. Also the price of water is to a certain extent regulated by specific laws. Thus, water shortage is primarily a failure of public management. Prices are kept artificially low, especially in hot seasons, and overuse is consequently incentived. Of course there is only one way to solve the problem: that is, allowing prices to grow as water gets scarcer, in order to incentive a wise management. For that to be done, however, we need municipalities getting out of the market and, more important, getting rid of the barriers to entry that in fact protect local markets.

Judge Posner issued U.S. v. Gerke Excavating, Inc. yesterday where he argued that it doesn't matter whether waterways are navigable or not, Congress still has the power to regulate them based on the Commerce Clause. Judge Posner analogized to prior decisions that have allowed for the regulation of groundwater, because pollution might affect the groundwater, which might affect agriculture, and agriculture involves goods traded in interstate commerce.

I think it is clear that Congress has the power to regulate navigable waters as well as tributaries when the regulation deals with an activity that could substantially affect those channels of interstate commerce, but it is not clear to me that the referenced groundwater decisions or any arguments for regulating waters that aren't navigable and that would not affect navigability of interstate waters is necessarily Constitutional.

The Posner argument that pollution affects water, which affects agriculture, which involves goods traded in interstate commerce seems closer to the reasoning that was rejected in Lopez and Morrison (and embraced by Justice Breyer's dissents in those opinions) than it does to the Wickard v. Fillburn opinion, which was recently reaffirmed in Gonzales v. Raich.

Lopez and Morrison rejected the argument that it was sufficient for Constitutional purposes that guns in schools or violence to women could affect productivity which could affect goods that trade in commerce. The indirect chain of events was not sufficient to meet the Commerce Clause test. But Raich involved regulating a good that wasn't trading in commerce (home-grown, personal use, medical marijuana) yet had a perfect substitute that was trading in commerce (other marijuana). The impact of regulating (or not regulating) the first type of marijuana directly impacted the commercial regulation of the second type of marijuana. (As Justice Scalia might have put it, it was necessary and proper to regulate home-grown, personal use, medical marijuana in order to regulate marijuana in general). If Raich didn't completely knock Lopez and Morrison down to their facts, which I do not believe it did, the regulation of groundwater and non-navigable waterways that don't directly impact naviagable waterways seems like an area that could remain beyond Congressional Commerce Clause power to regulate.

With talk of 4th Circuit Judge Luttig as a possible Rehnquist replacement to the Supreme Court (see other commentary here and profile of Luttig here), this opinion published yesterday, which upholds standing for environmental groups suing under the citizen suit provision of the Clean Water Act for unpermitted ongoing discharges, won't hurt Luttig's own standing before a Senate Judiciary Committee. The pig operation that was sued argued that its good-faith efforts should protect it from suit, but the Luttig opinion noted that violations of the Clean Water Act are treated as if under a strict liability standard, and thus the good-faith efforts made no difference.

UPDATE: Incidentally, if Stevens, Ginsburg, or another of the left-leaning justices thinks that they cannot last the entirity of Bush's term, it might be wise for them to announce their own retirement within a week or two of one of the conservative justices retiring. In such a scenario, it would seem harder for President Bush to replace both retirements with more rightward-leaning justices. The pressure for a compromise could be quite great in both the media and possibly public opinion if the retirements occurred at the same time as opposed to a year apart. But such an action might make for poor manners. I don't know the history of Supreme Court retirements in sufficient detail to comment one way or the other.

The 5th Circuit found unripe an oil and gas producers' challenge to an EPA Clean Water Act regulation requiring permits for construction activities undertaken by the industry that result in stormwater discharges. On Monday, the 7th Circuit had issued a stay pending the outcome of the 5th Circuit's opinion. For more on the 7th Circuit opinion, see here.

The 10th Circuit found on Tuesday that a Freedom of Information Act (FOIA) request by an environmental group to get electronic map files of private structures insured by the Federal Emergency Management Agency's (FEMA) National Flood Insurance Program should be denied, because the privacy interests of FOIA's exemption six outweighed the public interests in disclosure. No doubt the group wanted the information to provide criticism of a ridiculous flood insurance program that encourages landholders to build in floodplains. For a program that works rehabilitate flood plains, see here.

The 6th Circuit issued an opinion today in a mind-numbing case about proper methodologies for setting Water Effluent Technology (WET) standards under the Clean Water Act and whether the EPA was acting arbitrarily regarding state proposed rules for meeting those standards for emissions into the Great Lakes.

The Supreme Court's recent decision to end the "substantially advances a legitimate state interest" takings test in Lingle v. Chevron is already making its way into the circuits. A takings claim rested among a host of other claims brought before the 9th Circuit by a game ranch. (For the Congressional Budget Office's explanation of what a takings is, see here, and how the courts evaluate takings claims, see here.)

The ranch was affected by Montana voter initiative I-143, which passed in November of 2000. The initiative outlawed fee hunting on existing game ranches and prevented the creation of future game ranches. (Game ranches entail the raising of "alternative livestock" usually elk, deer, or exotic game on fenced-in properties. This should not be confused with ranching for wildlife where landowners improve habitat in return for tags they can sell to hunters for pursuing wild game on their property. For more on ranching for wildlife, as opposed to game ranching, see here.) The 9th Circuit refused to hear a substantially affects theory of takings in light of Lingle and left a deprivation of all economic value theory of takings (which remains valid under current Supreme Court precedent) to be decided once the state courts have decided whether a takings has occurred under Montana law.

Around the environmental horn in other cases this week:

On Monday, the 7th Circuit issued an opinion in Texas Independent Producers and Royalty Owners Association v. EPA. The interesting part of the case involved a challenge by the Natural Resources Defense Council (NRDC) to a General Permit issued by the Environmental Protection Agency (EPA) under the Clean Water Act (CWA) for dealing with stormwater dischargers resulting from construction activities.

The EPA has increasingly relied on General Permits for dealing with the permitting process required by the CWA for discharges of pollutants into waterways. Under a General Permit, the EPA sets out specific rules for specific types of activities that will qualify as being in compliance with the permit. Then, instead of applying for an individual permit as usually required to comply with the CWA, a discharger can file a notice of intent (NOI) to undertake the activity in compliance with the standards set forth by the General Permit and go on about their business without having to file for an individual permit. The process helps the EPA regulate lots more activities and industries without having to undergo the process of an individualized inquiry in each case. It also streamlines the process for industry. Many environmental groups, however, prefer a more burdensome process that makes it more costly and harder for industry to discharge at all.

Former Bush EPA official G. Tracy Mehan III reports on progress cleaning up the Great Lakes.

In a new book (Water, Race and Disease, MIT Press 2004), Werner Troesken analyzes the growth of water pollution control efforts in the early 20th century and finds that public water and sewer services for African Americans grew even under Jim Crow. From the MIT Press blurb: "Arguing that in this case, racism led public officials not to deny services but to improve them -- the only way to "protect" white neighborhoods against waste from black neighborhoods was to install water and sewer systems in both -- Troesken shows that when cities and towns had working water and sewer systems, typhoid and other waterborne diseases were virtually eradicated. This contributed to the great improvements in life expectancy (both in absolute terms and relative to whites) among urban blacks between 1900 and 1940."

EH.NET has an excellent review, not yet on their site.

According to the UN, is March 22 is the "World Day for Water."

States were invited to devote the Day, as appropriate in the national context, to concrete activities such as the promotion of public awareness through the publication and diffusion of documentaries and the organization of conferences, round tables, seminars and expositions related to the conservation and development of water resources and the implementation of the recommendations of Agenda 21.

I recently received notice of a paper on integrated river basin management that sounds quite interesting. It discusses the Fraser Basin Council, "a nongovernmental, multi-stakeholder, consensus-based approach to river basin management in the Fraser River basin in Canada." The full paper is available on SSRN. The abstract follows.