Benson: Is there a right to life for the Colorado River? (column)
December 14, 2017
When environmental activists filed a lawsuit asking a federal court in Denver to declare that the Colorado River has a legal right to exist, the media took notice of a case that was seemingly doomed to go nowhere. And, in fact, the plaintiffs, under pressure from Colorado's attorney general, recently withdrew their case.
But the notion of a river suing the government for failing to protect the river's rights was a "man bites dog" story that got attention, appearing in outlets from The New York Times to High Country News.
This was no ordinary lawsuit. A typical environmental case involves a challenge to some action by a government agency. This case, by contrast, asked the court to recognize a new status for the Colorado River, and declare that a river has legal rights of its own. A lawsuit this unconventional was sure to be mocked by some, and this one drew its share of ridicule. I didn't see it as laughable, but it had almost no chance of success in court.
Although the law was against them, the plaintiffs had a serious point about the overworked Colorado, the great river of the Southwest. It provides drinking water for 40 million people (including me) as well as irrigation water for farms in two countries. This iconic river flowed wild and free less than a century ago, but several large dams have changed all that, and for the past 45 years it has rarely reached the ocean. In short, the plight of the mighty but depleted Colorado is no laughing matter.
The lawsuit that sought to protect it, however, had much to overcome. For starters, the person bringing a case in federal court must have "standing" to sue. This requires, primarily, that the person suing have a personal stake in the case, and that a court be able to remedy that person's harm if she wins. Without the right kind of person to bring the case, the court can't accept it.
In an early environmental case, Supreme Court Justice William O. Douglas issued an eloquent dissent, arguing that people should be able to sue in the name of wild places they seek to protect. If a corporation can be a legal person for this purpose, he wrote, so should a river, which he called "the living symbol of all the life it sustains or nourishes," including human life. But that view never caught on in U.S. law, and the Supreme Court has only moved further away from that kind of thinking.
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Even if the Colorado River had gotten into court, it was virtually certain to lose. Water law in the U.S. has never recognized a river's fundamental right to exist. To the contrary, the law gives people and institutions the right to take water from the river, and these rights often mean there is little or nothing left for the river itself. States have rights to water under interstate compacts; water providers and users have rights to water under state law and/or federal contracts; and tribes have rights to water under court decrees or settlements. Several Western states offer limited legal recognition for environmental flows, but no federal or state law gives a river a right to exist; at best, laws protect a river from harm caused by new development.
There may be no river with less of a right to exist than the Colorado. This great interstate and international waterway has been over-promised since the 1922 Colorado River Compact divided up its water supply based on an inflated assumption of annual flows. Today, the Colorado's management relies on decisions made by multiple sovereign entities, including the U.S. government and seven Western states. Giant federal dams, operated mostly for water supply and hydropower, have drastically altered the natural system. This legal, institutional and physical system protects human uses of the Colorado rather than the river itself. As historian Donald Worster once put it, the Colorado was "a part of nature that had died and been reborn as money."
This short-lived lawsuit was never going to bring the river back to life, but it drew needed attention to its problems. Other nations, including New Zealand, have taken steps to recognize the legal rights of their rivers, and U.S. law has evolved regarding the rights of people. Someday, a river in this nation may have a right to life.
Benson is a law professor at the University of New Mexico.
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