Wednesday, November 21, 2012

Doremus and Tarlock on the Clean Water Act and Ecosystem Protection

Major_bay-delta_smallLast week, Holly Doremus and Dan Tarlock posted Can the Clean Water Act Succeed as an Ecosystem Protection Law? on SSRN.  The article, which is forthcoming in the George Washington Journal of Energy and Environmental Law, examines the efficacy of the Clean Water Act's water quality standards (as opposed to its technology-based controls) as legal mechanisms to support ecosystem protection.  The authors use California's Bay-Delta ecosystem as a case study.  Their conclusion, based largely on the failures of Bay-Delta restoration efforts, is that the Clean Water Act will not reach its potential without significant reform.

There's lots of good stuff in the article, including, at the end, an ambitious vision for comprehensive Clean Water Act reform, but one passage in particular raises some intriguing questions.  Here's the passage:

In legal and institutional terms, we view the Bay-Delta as a "best-case" scnario for the CWA.  California, unlike some other states, is a willing partner in ecosystem protection.  EPA has historically been more willing to push its authority in the Bay-Delta than elsewhere, and recently announced that, in concert with state partner agencies, it is considering what steps it can take to better protect Bay-Delta water quality.  State law fills some of the most important gaps in the CWA.  Furthermore, the state agency which implements the CWA and the state's analogous water quality law also implements the state's appropriative water rights system, providing institutional opportunities to integrate management of water quality and water quantity.  The state's courts have pushed the agency in that direction, ruling decades ago that water rights can, and indeed must, be adjusted if necessary to protect water use.

That's all quite true, and it's all unquestionably important.  But I wonder if the geography of water use also plays a crucial role in determining what counts as a best-case scenario for CWA implementation.  Here, it seems to me, the Bay-Delta restoration efforts may face two huge challenges that aren't always present.

The first is that very few of the people who rely upon Bay-Delta water have any real contact with the Bay-Delta as an ecosystem.  That means they may not perceive any direct benefit from environmental restoration, or even find the alleged problems readily cognizable.  While it's a hard point to prove, I think that geographic separation does matter.  In a recent study of a much smaller-scale ecosystem restoration project in Maine, I found that many business leaders were receptive to a CWA-driven restoration project in part because they lived in (and, in many cases, tried to draw customers or employees to) the larger ecosystem affected by the project.  That attitude had legal significance: the willingness of the business leaders to support restoration efforts allowed regulators to craft an innovative permitting regime, and the absence of lawsuits from regulated entities allowed that regime to quickly go into effect.

The second potential challenge is scale.  We sometimes tend to assume (at least I used to assume) that in larger, higher-profile projects like the Bay-Delta restoration effort, the influence of environmental advocates will be at its peak, and that, as a direct consequence of that advocacy, the government agencies responsible for environmental protection will be most likely to assume an aggressive posture.  Certainly there has been quite a lot of environmental group advocacy focused on the Bay-Delta.  But it's quite possible--some of my recent research has me wondering if it's likely--that environmental protection measures are often stronger in smaller, lower-profile controversies.  There, the influence of environmental groups may be reduced, but the influence of resource users may also be significantly reduced, leaving government regulators as the most powerful influence.  And if those government regulators have an internal commitment to environmental protection--in other words, if they're not just the external pressure-driven automatons posited by some more extreme versions of public choice theory--the reduction of outside pressures might lead to more protective outcomes.

All of this is rather hard to put to the test.  But at the very least, we have more case studies unfolding.  Most notably, EPA is now seriously attempting, on a scale as grand as that in the Bay-Delta, to use the Clean Water Act's water quality provisions to drive Chesapeake Bay restoration.  Similarly, across the country, a smattering of smaller-scale water quality-based initiatives continue to unfold.  Perhaps in another ten years, those efforts will give us more insight into what makes a best-case scenario for CWA-based ecosystem restoration.

-Dave Owen

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