Tuesday, August 20, 2013

Glennon & Kavkewitz on the Arizona's Share of the Colorado River

Robert Glennon (Arizona) & Jacob Kavkewitz (Arizona) have posted 'A Smashing Victory'?: Was Arizona v. California a Victory for the State of Arizona? (Arizona Journal of Environmental Law & Policy) on SSRN.  Here's the abstract:

Fifty years ago, the U.S. Supreme Court handed down the most important decision in the State of Arizona’s history. Arizona v. California allocated the flow of the Colorado River among the three Lower Basin states (Arizona, California, and Nevada) according to terms of the 1928 Boulder Canyon Project Act (BCPA). Arizonans rejoiced. However, Arizona’s reaction seems perplexing, given that the State spent decades denouncing the BCPA. Arizona challenged the BCPA numerous times in the Supreme Court and engaged in fierce political battles to block its implementation.

This Article explores this riddle by reviewing the legal and political events leading up to Arizona v. California. Ultimately, the Article concludes that the decision was a victory for Arizona because, while Arizona had engaged in its strategy of obstruction, California had steadily been using more of the Colorado River’s flow. California’s use eventually was well above the amount allocated to it in the BCPA -- water that would otherwise have gone to Arizona. To secure legal rights to water that California was already putting to a beneficial use, Arizona needed to convince the Supreme Court to depart from established precedent for determining interstate water disputes and ratify the notion that the federal government could and had allocated an interstate stream among states.

The decision’s impact on Arizona cannot be overstated. On its heels came Congressional approval of the Central Arizona Project, which allowed Phoenix and Tucson to develop into major population and economic centers. But the conflict over how to divide the River is far from over. A growing population and the uncertain yet tangible effects of climate change bring new water challenges to the Colorado River Basin.

Steve Clowney


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