This past week I had the pleasure of speaking at the annual ABA Water Law conference in Las Vegas. Soon after my talk, I found myself quoted in an AP story — proving that what happens in Vegas doesn’t always stay there. The story quoted me as saying that the federal government plays a valuable role in water management as a “gorilla.” I did say that, but I drew the gorilla metaphor from a speech given 30 years ago by then-EPA Administrator Bill Ruckelshaus. More on that shortly, but first, a bit of context.
The ABA Water Law organizers wanted to set up a debate over the appropriate role of the federal government in managing the water of interstate river basins. They asked me to represent the pro-federal side, maybe because my old Deference Myth article argued that the U.S. government didn’t (and shouldn’t) always defer to state water law. For the anti-federal side, they recruited David Aladjem, an experienced California water lawyer; Central Arizona Project attorney David Johnson moderated. For purposes of contrast and entertainment value, the organizers asked us to present extreme positions on each side of the debate.
One of my arguments was that the value of the federal role in western water was represented by three things: the greenback, the humpback, and the silverback. The greenback, of course, is money: federal dollars have been crucial in several respects, including building water projects and subsidizing wastewater treatment plants. The humpback refers to the humpback chub, an endangered fish species in the Colorado River system, symbolizing the national priorities–endangered species, water quality, and tribal water rights, to name three–that the states don’t necessarily share. And the silverback? That is a dominant male gorilla, which brings me back to that old quote.
Bill Ruckelshaus was the first EPA Administrator in the early 1970s, and was brought back to right the ship during the Reagan Administration. Years later, when Bill Reilly was Administrator and I was working for EPA in Washington, I read a quote from a 1984 speech by Ruckelshaus. He essentially said that state governments had the capability and the interest to control pollution, but to be effective in regulating their powerful industries, “they need a gorilla in the closet. And the gorilla is EPA.” That quote always stuck with me, partly because I liked the gorilla image, but mostly because the message rang true to me.
What does this have to do with water? I think the states, whatever their intentions, have the same trouble standing up to their politically powerful water users as they do their polluting industries. Federal oversight can help make sure the states don’t just serve their local interests at the expense of the environment, tribes, or downstream states. Thus, the federal gorilla is important in the water management context, just as it is in environmental regulation. So while the states generally take the lead in water allocation and management, the feds have their important roles too: providing greenbacks, protecting humpbacks, and being silverbacks.