Does a river have a right to exist?

The New York Times carried a story  this week about a lawsuit, filed in Colorado, that seeks to have a federal court declare that the Colorado River has a legal right to exist, as a person does.  This is not, shall we say, a conventional environmental lawsuit.  The story quoted me as saying that I didn’t think the case was laughable, but that it was “a long shot in more ways than one.”  It’s not laughable, in my view, because the plaintiffs raise a serious issue regarding the plight of the overworked Colorado River — the great river of the Southwest, water supplier to 40 million people and millions of irrigated acres, which has rarely reached the ocean for the past half-century.

But it’s a long shot in more ways than one.  The first way is that the person bringing a case in federal court must have “standing.”  This requires, primarily, that the plaintiff have a fairly direct personal stake in the case, and that a court be able to remedy the plaintiff’s harm if she wins.  Without the right kind of person to bring the case, the court won’t take it.  In an early environmental case, Supreme Court Justice Douglas issued an eloquent dissent, arguing that the law should allow suits in the name of wild places, just as it does for corporations.  But that view never caught on in U.S. law, and the Supreme Court has moved further and further from that kind of thinking over the past 45 years.

If the court should take the case, it would still be a long shot (at best) on the merits.  There are several reasons for that, but most fundamentally, 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; tribes have rights to water under the Winters doctrine or negotiated settlements.  Some narrowly focused state laws provide limited protection for environmental flows, but U.S. law stops far short of giving rivers a right to exist.

In fact, there is no river in the nation that has less of a right to exist than the Colorado.  It has been over-promised ever since the 1922 Colorado River Compact divided up the river’s supply based on a mistaken, inflated assumption of annual flows.  Water has been apportioned by compacts, by a U.S. Supreme Court decree, by a 1944 treaty with Mexico, and by federal contracts with users.  Its management relies on decisions made by multiple sovereigns, including seven U.S. states, the federal government, and Mexico.  Giant federal dams have dramatically altered the natural river, providing major benefits for the region but also doing great damage.  All of this legal, institutional, and physical infrastructure–plus the politics of water–mean that human uses of the Colorado are protected by unbelievably tough armor.  The natural system?  Not so much.

This new lawsuit, I suppose, seeks to be the armor-piercing round that helps give the Colorado River new life.  Courts in other nations have begun to recognize legal rights of rivers, and the day may come when U.S. law begins to accept that idea.  For now, no one should expect a federal judge to declare that any river, least of all the Colorado, has legal rights of its own.  But we know the law is sometimes slow to recognize rights of the less powerful; for example, women got the right to vote less than a century ago.  So while the law does not recognize a river’s right to exist today, ask yourself:  should it?

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