Water Law and the 2020 U.S. Election

  • The 2020 U.S. Election promises to impact the formulation, interpretation, and implementation of both domestic and international water law
  • The election will likely influence who controls water, how water is protected, and the response to climate change
  • The election reveals how much of politics in general has come to resemble water politics

The 2020 U.S. Election understandably focused on the ongoing pandemic and its economic fallout, as well as concerns over racial injustice. As important as these issues are, the election will impact, and was influenced by, the most fundamental molecule of life – water.

Of course, water is relevant to both the COVID19 pandemic and racial justice. The lead contamination in the water system in Flint, Michigan is an issue of racial justice and the disproportionate impact of COVID-19 in Native American communities is partially attributable to inadequate water access on tribal land. Virtually every social problem highlighted in the election has some relationship to water security, from immigration to armed conflict. Water policy lies at the heart of many political issues, even if voters and candidates do not fully appreciate the role water plays. The appointment of Amy Coney Barrett by Donald Trump to fill the vacancy on the U.S. Supreme Court created by the death of Ruth Bader Ginsburg is an example of the underappreciated importance of water in seemingly unrelated political disputes. Public discourse about the appointment process focused on abortion, election law, religious liberty, discrimination, and theories of constitutional interpretation. However, the U.S. Supreme Court has original jurisdiction to adjudicate inter-state water disputes. These cases frequently arise, and involve complex considerations of science and economics, and the development of centuries of federal common law on the meaning of reasonable and equitable utilization and the interpretation of inter-state compacts. In recent years, the U.S. Supreme Court has taken on cases of water disputes between Texas and Oklahoma, North Carolina and South Carolina, Mississippi and Tennessee, Arizona and California, and Kansas and Nebraska, to name only a few. Justice Barrett is likely to play a critical role in allocating water supplies for tens of millions of people, yet that issue was not once addressed in any public hearings.

While water policy relates to disparate social challenges in subtle or underappreciated ways, like those involved in the U.S. Supreme Court nomination, the election impacts more obvious aspects of domestic water policy. On several occasions, presidential debates focused on hydraulic fracturing – a water-intensive method of natural gas production that employs thousands of Americans and advances national energy independence while perpetuating dependence on fossil fuels which produce emissions that will aggravate the impacts of climate change, like drought and flood. Donald Trump withdrew the Obama administration’s Waters of the United States Rule, which clarified (and arguably expanded) the jurisdictional scope of the Clean Water Act, and a Biden administration is likely to reinstate that rule while facing litigation to stop the rule like that brought against the Obama administration. The result will be the continued uncertainty about when and how the Clean Water Act applies in many instances. Potential new appointees – including the Secretary of the Interior and the Director of the Bureau of Reclamation – will influence the ongoing negotiations involving sharing water shortage in the Colorado River Basin.

The election will influence international water law and policy, as well. Donald Trump withdrew the United States from the Paris Climate Agreement, and Joe Biden has promised to rejoin those accords. The massive wildfires throughout the western United States highlighted the significance of climate change during the election. The U.S. State Department is negotiating with Canada to modernize the Columbia River Treaty. Conflict in northern Mexico involving water shortage highlights the importance of the International Boundary and Water Commission in improving hydro-diplomatic relations with Mexico. In meetings discussing the normalization of relations between Sudan and Israel, Donald Trump raised the issue of the ongoing conflict in the Nile Basin around the Grand Ethiopian Renaissance DamDonald Trump’s administration proposed plans impacting the Jordan River Valley and access to the Jordan River between Israelis and Palestinians. A new administration will appoint diplomats and impact whether and how these international water developments proceed.

But this election will not just influence domestic and international water law. It reflects how politics in general has come to resemble water politics. Water politics do not generally break down along traditional conceptions of conservative versus progressive ideologies. Instead, water politics are often characterized by strains between rural and urban community relations. Rural communities argue that water comes from their lands, where they grow food, produce energy, mine minerals, and protect open spaces, forests and wetlands providing critical ecosystem services. Rural communities often resent cities taking more than their fair share by sheer political and economic power, without regard to rural communities and treating those communities as backwards, and with outdated or uninformed values. These sentiments are often all the more acute in indigenous communities. Residents of urban centers return those sentiments with concerns of the disproportionate power and control over resources like water held by rural communities, in a political system that often privileges the minority through the Electoral College and U.S. Senate. Cities are where most of the people live and work, where the money and innovations are made, where a diversity of people live together, and where sustainable urban living bears the costs of pollution from mining, oil and gas development, deforestation, and agriculture. I used to think that this sort of dispute was unique to water politics. But increasingly, U.S. national politics, and the national politics of many countries, resembles less the policy disputes between conservatives and progressives, and increasingly resembles the disputes over the values and lifestyles at the heart of water politics.

Rhett is the Richard Morrison Professor of Water Law at Arizona State University’s Sandra Day O’Connor College of Law. He recently authored "Just Add Water: Solving the World's Problem Using Its Most Precious Resource" (Oxford University Press, 2020).

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