Friday, October 27, 2023

Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel

    Human consumption of water imposes externalities on planetary systems, and at all scales. Globally, for example, human impoundments of surface water in reservoirs account for a significant fraction of observed polar drift and have shrunk day length by a few microseconds, while pumping of groundwater has tilted the Earth’s axis. Regionally, consumption of water means that major rivers around the world—including the United States’ Colorado River and Rio Grande River, the Yellow River in China, the Amu Darya (Afghanistan, Tajikistan, Uzbekistan and Turmenistan) and Syr Darya (Uzbekistan, Tajikistan, and Kazakhstan) in Central Asia, and the Tigris and Euphrates Rivers in the Middle East (Turkey, Syria, and Iraq)—no longer reach the ocean, with others like the Murray River in Australia and the Indus River in India at risk of the same.

    Local impacts of water overconsumption are even more common. In just the United States, for example, consumption of groundwater in California’s Central Valley has caused land subsidence of about 30 feet and collapsed some aquifers. Diversion of freshwater from the tributaries to Great Salt Lake in Utah is the most significant cause of the lake’s shrinkage, exposing about 80% of Utah’s residents to toxic dust. Overpumping of groundwater in Florida leads to saltwater intrusion.

    So, overconsumption of fresh water is a problem in many different kinds of climates. Nevertheless, these issues tend to be most acute in dry climates, particularly as climate change makes regions hotter and drier.

    Simultaneously, both the world as a whole and some states in the United States are increasingly incorporating a human right to water into law. As the United Nations Department of Economic and Social Affairs reports, for example:

On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights. The Resolution calls upon States and international organisations to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.

Moreover, according to the United Nations, this new human right is defined by five components: sufficient water for basic human needs, requiring 50-100 liters per day; safe water that is free of health-threatening pollutants and micro-organisms; acceptable water in terms of color, odor, taste, and cultural requirements, and that is sensitive to gender, lifestyle, and privacy requirements; physically accessible water, within 1000 meters of each person’s home and collectable within 30 minutes; and affordable water, where basic water needs can be met for 3% or less of household income.

    The United Nations’ vision of the human right to water thus explicitly incorporates cultural differences and norms but does nothing to connect this laudable human rights goal to the wildly varying hydrogeological realities that characterize aquatic systems throughout the United States and around the globe. In the eastern United States, for example, residents are still more likely to worry about flood than drought, and even severe drought years rarely threaten water supply in the same existential way as can occur in the West and other severely water-limited places, such as Cape Town, South Africa. Perhaps it is time to ask: Does a human right to water come with a duty to take account of the native water supply and the externalities imposed by human use?

    In other words, can the number of humans who can claim a right to take water from a particular source be limited by the native supply—especially if new humans are moving into a water-scarce location? Given the growing populations of many water-scarce locations in the United States, this is not a hypothetical question. Moreover, multiple approaches to answering the question are necessary. For example, even if a population isn’t growing, the substantive scope of an enforceable human right to water should probably vary depending on native supply—for example, it could be closer to the 50-liter end of the sufficiency scale in Phoenix, Arizona, and maybe 200 or more liters per day in wetter parts of the country. That seems a reasonable way to start matching human rights to geographic realities.

    The stickier problem is whether the right to water can limit population growth, as when native supply drops below the capacity to supply each resident with even 50 liters per day. California, which has a state-level human right to water, has so far avoided this dilemma by moving water from wetter but less populous parts of the state and from the Colorado River to cities and farms. But even that infrastructure is starting to be insufficient. So, leaving to the side the even stickier issue of whether water scarcity could limit internal population growth (i.e., existing residents having babies), it seems fair to ask whether the realities of a fully consumed water supply could ever allow municipalities and states to limit the number of people moving in.

    In the United States, the answer would appear to be “no,” and for two reasons. First, the United States as a whole does not yet recognize the human right to water—although, as noted, certain states like California do. Thus, outside of those states, no one has a right to even a minimally sufficient quantity of water.

    Second, the U.S. Supreme Court has long recognized a constitutional right to interstate travel, and that right doesn’t seem limited by consumption realities. While the Court articulated facets of the right to travel at least as early as 1867, see Crandall v. Nevada, 75 U.S. 35, 44 (1867), its earliest most complete declaration of the right came in 1958:

The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. Chafee, Three Human Rights in the Constitution of 1787 (1956), 171—181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

Kent v. Dulles, 357 U.S. 116, 125-26 (1958). The right is protected as a fundamental right through strict scrutiny, Shapiro v. Thompson, 394 U.S. 618, 634 (1969), and played a recurring role in the Civil Rights movement. E.g., United States v. Guest, 383 U.S. 745, 757-58 (1966).

    So, we are facing a situation going into the Anthropocene where people in the United States have a protected right to move wherever they want, with no concomitant duty to take into account the impacts of their water consumption on wherever they are moving. At the same time, while local governments can impose some restrictions on water hookups and, in many western states, require proof of water rights before allowing new construction, their ability to simply state, “We’re tapped out. Don’t move here,” appears to be constitutionally severely circumscribed, if not outright prohibited. The results are Los Angeles, Phoenix, and Tucson. The right to travel, carried into the Anthropocene, means that Nashville and Buffalo—or any other city that currently doesn’t worry too much about the sufficiency of its water supply—could be next. Does overconsumption of local water supply have to become a national security issue—one of the few exceptions to the constitutional right to travel—before local and state planners can think about limiting growth?

-- Robin Kundis Craig

| Permalink