The Government of Haiti's water governance reform agenda

Flooding in Cap-Haitien, Haiti.  Photo: United Nations.  

It's been about two years since I completed a series of field studies of water governance in Haiti.  Our project in northern Haiti finished up about a year later.  It's gratifying to work on development projects on-the-ground, but it's also rewarding to take those experiences and share them with the broader international and academic communities.  Two articles I wrote about water governance in Haiti have been published recently.  The first is a broad look at Haiti's water laws and policies, and the institutions that develop and enforce those laws.  The article has been published by the Tulane Environmental Law Journal and is available online here.  

The second article is a more focused study on local institutions in the Trou-du-Nord watershed in northern Haiti.  The region has water resources, but many water users competing for a modest supply.  At present local institutions are insufficient to manage these resources and users adequately.  My article explores some institutional reforms local stakeholders, the Government of Haiti, and international donors may be interested in pursuing.  This second article has been published by AQUA-LAC, the journal of UNESCO's International Hydrological Program, as part of a special issue composed of articles written by myself and other colleagues who worked on the Trou-du-Nord watershed project.  The special issue includes a forward from Jovenel Moise, the President of Haiti.  President Moise's forward is included below:

This special issue of AQUA-LAC is a magnificent example of the solidarity expressed by the International Hydrological Program for Latin America and the Caribbean (IHP-LAC) in promoting the integrated management of the water resources of the Republic of Haiti. Indeed, in its report in 1972 on integrated technical assistance in Haiti, the OAS stated, “The development of Haiti’s natural resources is to a large extent linked to maximizing the rational utilization of its water resources. Failing these factors, the country’s agricultural and industrial development, as well as the life of its inhabitants, will be confronted by severe limitations” (OAS, 1972).

This issue has 9 articles written by authors from three countries: Haiti, the United States and Mexico. They cover very diverse fields, ranging from the reconstitution of extreme rainfall events in Haiti – currently a highly pertinent topic with climate change and extreme hydrological phenomena – to an analysis of water governance reform in Haiti, which emphasizes the numerous challenges that have to be overcome to achieve integrated and rational water management.

Furthermore, four articles refer to the water resources of the Trou du Nord watershed, which supplies the industrial zone of Caracol. They provide analytical elements on research issues that not only have to be taken further with respect to this watershed, but which can also be transposed to other watersheds in Haiti in view to carrying out comparative studies.

Regarding water intended for human consumption, the results of an evaluation of microbiological risks highlight the danger of Crytosporidium oocysts for the health of the population. The issue of water in emerging non-secured districts is also studied and presented in an article on water supply to Canaan.

The analysis of epidemiological transition linked to hydrometeorological disasters provides methodological tools and calls for specialists in water and health sciences to carry out multidisciplinary actions to establish, and experiment with, protocols aimed at facilitating the development of new tools for preventing and controlling certain water-borne diseases.

This special issue addresses the urgent need for the Haitian authorities to establish a national water policy. By relying on the basic principles of integrated water resource management, I strongly believe that this reform will lead the country in the short, medium and long terms to: (i) reduce the environmental risks linked to water, (ii) better satisfy the population’s needs for water, and (iii) solve conflicts between the different actors in this sector.

My administration is committed to this process by proposing legislative and administrative changes, and by making new choices for investment in the water sector by waging on stronger scientific and technical cooperation between and IHP-LAC. This is the context in which I have made the management and control of surface water a major goal of my governmental program.

Jovenel Moïse President of the Republic of Haiti

The Klamath River Dam Removal Agreement: Lessons for Negotiation

The Klamath River.  Photo: Linda Tanner.

An agreement to implement the largest river restoration project in the United States was signed last week on a fish cleaning table at the mouth of the Klamath River in northern California.  The agreement hasn't garnered much national attention, but serves as a model for negotiating a complex stakeholder agreement over water resources.  This week I've been running negotiation simulations in my Natural Resources Law and Ocean and Coastal Law classes to drive home the significance of multi-party conflicts over natural resources, and the challenges of coming to a mutually beneficial agreement when so many parties have an interest in the resource.  The Klamath River is a textbook example of a multiple use resource conflict.  

The river and its network of dams provide irrigation to farmers in Oregon's upper basin and California's lower basin, hydropower to energy markets, instream flows to federal public lands, domestic water and aquatic species for several tribes, and sustain a diverse ecosystem that includes three species listed under the federal Endangered Species Act (including the Coho Salmon).  The operator of the dams is owned by Berkshire Hathaway, the river provides recreation and tourism opportunities to local communities, and its path crosses the state boundary between Oregon and California.  In other words, stakeholders include large-scale farmers, small-scale farmers, federal agencies, endangered species, tribal governments, conservationists, corporate interests, two western states, and watershed communities.  For many years the dynamic of the conflict pitted the dam operator and farmers benefiting from the irrigated water dams provide against the downstream tribes and conservationists who were critical of the cumulative impacts dams were having on the watercourse as a whole.  There has been extensive litigation and political wrangling in the last several decades, intensifying the conflict.  Compounding these issues is a decline in the absolute quantity of water resources available in recent years.  

It seems remarkable, then, that this diverse group of stakeholders could have come to an agreement.  Upon closer inspection, it seems that ancient doctrines of water law and the judicial system may have played a necessary role in getting the parties to the negotiating table.  The United States federal government holds a reserved water right to sustain federal public lands, from which it must also protect and preserve the water rights of the several tribes.  In this case, the Klamath Tribes (established by the Klamath Treaty of 1864), had priority water rights.  In the western water law system of prior appropriation, senior water users have priority over junior water users, but it can take many years of legal battles to validate senior water rights.  In 2013, an arbitration court finally validated the tribes senior water rights over upstream farmers using the dams.  In a previous case, United States v. Adair, the judge concluded:

"Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation."

That court decision prompted the stakeholders to negotiate an agreement that would operationalize the tribes' legal victory.  And it didn't hurt, I suppose, that the dam operator's financial projections were ambivalent: it might have been more expensive to continue maintaining and licensing the dams than removing them.  These new legal and financial developments gave the parties the mutual reality needed to get the deal done, which included a second agreement designed to compensate farmers and ranchers who stand to lose from dam removal. 

The Klamath River restoration agreement is remarkable in its scope, representing the largest river restoration project in the country.  It is remarkable in its promise, providing hope to tribes, conservationists, and local communities dependent on the health of the river's ecosystems.  But it might be most remarkable in its resolution, providing a fascinating example of a multi-party stakeholder negotiation that will likely result in a ground-breaking restoration agreement.  While centuries-old water laws are much maligned, it is clear they still have a powerful role to play in twenty-first century water management.  

Flint water crisis evokes the 'human right to water' debate

The Holloway Reservoir Dam, which supplied Flint, Michigan with water from 1955-1967 and 2013-2015.  Photo: Tony Faiola. 

In the 1990s the 'Washington Consensus' became the conventional wisdom for managing water resources.  Based on the premise that privatizing water and selling it as a commodity would finance delivery services and infrastructure while allocating water more efficiently, many countries (from Bolivia to the United States) endorsed water privatization.  While some transitions were effective, many became high-profile disasters, in many cases pricing lower and middle class households out of the water market.  Being a good necessary for survival, this led to a backlash and global movement to reconceptualize water not as a commodity but as a human right.   In 2010 the United Nations General Assembly passed a resolution recognizing a human right to water.  122 countries voted in favor of the resolution; the United States was not one of them.

In many cases municipal water in the United States is supplied by regional government institutions or public-private partnerships.  As water allocation has historically been the purview of state law, a diversity of institutional arrangements have developed over the years, many of which work well.  Nonetheless, the Flint water crisis shows that the conceptual debate (with very real consequences) over water as a commodity or human right is alive and well.  Although Flint's water supply was never fully privatized nor guaranteed by human right, the crisis as it emerged showed the fundamental tensions government service providers must grapple with.

To be fair, it should be noted that water infrastructure is crumbling across the country.  Most of it was built in the twentieth century, and is now in dire need of repair or replacement.  The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, estimating that replacement costs for pipes alone would exceed $1 trillion.  Despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  As a result, state and local governments must pick up the tab, leading to skyrocketing water bills for consumers.  In Detroit water bills average nearly $150/month, and Flint's water rates are among the highest in the United States.  When Detroit shut off water connections to households that couldn't pay, the UN condemned the move as a violation of human rights.

Given these circumstances, it shouldn't be surprising that water policies have prioritized cost-cutting and short-term gains.  Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was a financial one, as the move was projected to save the city $19 million over eight years.  While that's a good chunk of change for a cash-strapped city like Flint, it's worth noting that even at the time of the decision, huge risks were apparent.  On the one hand, officials knew it would take three years to connect to the KWA.  On the other hand, officials also knew that an interim water supply was not guaranteed - the DWSD had a termination clause that would allow it to stop providing water to Flint after 12 months.  Sure enough, the clause was exercised, putting Flint on the clock to obtain an alternate water source.

There were a number of problems with the Flint River option, but it did have one major advantage: it was the cheapest option, saving the city $5 million over two years.   On the surface, though, the rhetoric echoed the responsibility of government to provide water to citizens.  Flint Mayor Dayne Walling said "water is an absolute vital service that most everyone takes for granted...It's a historic moment for the city of Flint to return to its roots and use our own river as our drinking water supply."  When the Flint city council voted to reconnect to the Detroit water system after water quality concerns emerged, however, the state's emergency manager cited costs as justification for opposing the move.  

The outrage over the handling of the crisis is predicated on a few different factors, including political affiliations, race, and class.  But weaving in and out of these debates is the tension between water being managed as a commodity and the fundamental dependency that human populations have on water resources.  Just like water privatization efforts in the 1990s and 2000s led to public fury and protests around the world, so the Flint water crisis flames are stoked by water management decisions repeatedly based on financial considerations.  President Obama offered his own critique, calling the crisis "a reminder of why you can’t shortchange basic services that we provide to our people and that we, together, provide as a government to make sure that the public health and safety is preserved."  In the wake of the disaster, one Michigan state representative declared water to be a human right, and proposed legislation that would make the same point: "Are there teeth behind this bill? Possibly not, but at least we're making a statement that everybody in Michigan has a right."

Given the state of the country's water infrastructure, Flint is unlikely to be a one-off disaster.  Local governments are in a tough spot, with few resources available to maintain crumbling infrastructure, and an obligation to provide basic services like water supply to their citizens. Flint can demonstrate to other municipalities around the country that setting water policies based on short-term financial considerations not only may not pay off in the long-run, it may also strike a nerve shared by many people who view water as one of the most basic and essential services a government provides for its people.  Understanding that sensitivity and cultural connection to water will be a prerequisite for navigating the tough water management decisions that lie ahead.

Follow the Money: Florida's Land Acquisition Trust Fund

WACISSA RIVER, FLORIDA.  PHOTO: FWC

Constitutional Amendment 1 wasn't controversial when it was on Florida's ballot last November.  Dubbed the Florida Land and Water Conservation Initiative, the amendment passed easily.  Controversy has flared up since then, as interpretations of the amendment vary.  Some say the money raised by the amendment - put into the Land Acquisition Trust Fund - can only be used to acquire conservation land.  Others (including legislative budget proposals) claim the funds can be used to cover existing expenses related to land and water management.  I wrote about this back in May, arguing that the language of the amendment probably leaves room for the Fund to cover existing operations, despite the name of the Fund itself.  I also wrote that acquiring land might not be the only mechanism to achieve sound conservation: 

Amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  What kind of "technology and information services" will be provided to the Department of Environmental Protection?  Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

The Vero Communique picked up on my piece, and it looks like they've been doing just that by trying to track down the whereabouts and details of two major state-funded projects.  One of them was an allocation from the Land Acquisition Trust Fund to the St. John's River Water Management District:

Another project we researched is one of the [] projects where $ 2,750,000 was allocated to the St. John’s River Water Management District (SJRWMD).  SJRWMD was kind enough to respond to our inquiry about this project, as follows: “The $2,750,000 referenced in Rep. Mayfield’s column is a state appropriation from the Land Acquisitions Trust Fund. The District has not yet determined how this money will be used, but will be making that decision in the near future.”

This is the first instance I've encountered where a water management district has been given an allotment from the Fund with discretion on how to spend it.  It might imply that legislators are willing to place the burden of interpretation on implementing agencies by giving them both funds and the discretion to spend those funds in compliance with the amendment's terms.  It will be interesting to see how the SJRWMD decides to spend the appropriation in light of that power.

Regulating Marijuana: Water Agencies vs. Law Enforcement

Photo: USFS Region 5

Marijuana legalization is spreading quickly across the United States.  One of the toughest challenges for state governments will be to create a regulatory infrastructure for the marijuana industry that strikes the right balance.  Enact policies that are heavy-handed and the industry will continue to show itself capable of surviving on the black market.  Fail to regulate at all and the legal marijuana market will struggle with uncertainty and negative externalities.  Colorado's nascent marijuana regulations have been relatively well-reviewed, in part because it had the luxury of starting from nothing.  But in California the marijuana industry has been entrenched for decades, while cultivation and consumption for medicinal use has been legal since 1996.  Nonetheless, the state has not prioritized regulation of the industry, nor made any meaningful attempts to innovate or adapt to changing conditions.  I've written in the past about the environmental impacts of excluding the industry from the regulatory framework (see here and here), as well as the difficulties states may have when choosing which of their many administrative agencies will take responsibility for regulation (see here).

Both of those issues are now converging in Northern California, where the state's regional water board is at odds with state and local law enforcement.  Adrian Fernandez Baumann reports on the North Coast Regional Water Quality Control Board's efforts to partner with marijuana farmers to regulate water resources:

The water board reps' basic pitch: Starting this summer, and going fully into effect next spring, the board would regulate cannabis cultivation on the basis of environmental impacts. Growers would be asked to invest time and money in the proper stewardship of the land and in repairing damage that had already been done. In exchange, the board offered, basically, an understanding: the government would give growers time to fix old problems and would provide a them with a framework to diagnose and repair issues. And all of it would be totally, officially, unconcerned with the legality of marijuana.

In principle the system should work, and some growers are enthusiastic.  But this program, and any others promulgated by state or local agencies, will face the same challenge: establishing sufficient (if not exclusive) control over marijuana regulation such that the actions of other agencies don't interfere.  This was a problem for a similar program that was eventually broken up by the federal government.  And considering that marijuana raids as recently as late June targeted private property owners, it may be a problem for the water board's program as well.

For law enforcement, there are strong incentives to ignore the water board's call for cooperation and to just keep raiding. Asset forfeiture laws allow police to seize large amounts of money and assets in pot busts. In 2014, Mendocino County seized $5.2 million in assets, including $3.9 million in cash.The Mendocino District Attorney's Office takes things even further with its "restitution" program, which co-opts a law intended to pay for meth lab clean-ups to extract more money from growers. Basically, the DA approaches busted growers with a deal: Give us some cash for each pound confiscated and you get no jail time. The amount is negotiable. Officially, it's $50 per plant and $500 per pound, but it often ends up in the tens of thousands of dollars. The funds then get divided up between the DA and the arresting agency, creating a revenue stream with little democratic oversight.  

There are advantages to decentralized regulation, among them the innovation and experimentation that local agencies create.  But there are drawbacks as well, and generally speaking, decentralization and fragmentation are not the same thing.  The former shifts power to local governments with local expertise, while the latter spreads overlapping mandates around between agencies and requires extensive coordination and cooperation.  The marijuana industry will implicate many state and local agencies, but to be effective and integrated, the state will need to set some ground rules for how those agencies interact.  If it does not, expect more programs working at cross-purposes.

Introducing "Water Governance in Haiti"

The Trou-du-Nord River in northern Haiti, near its mouth in Caracol Bay.  Photo: Ryan Stoa.

Haitians will go to the polls on Sunday to vote in their national elections, seven months after the Haitian Parliament dissolved and left the executive ruling by decree.  Considering the sorry state of water services in the country, water has been on the political agenda for months.  But the administrative capacities are so low, and the information so scarce, that it's hard to know who the players are in the Haitian water sector, what laws govern them, or how capable those agencies are to carry out their mandates.

I just posted my latest article, titled "Water Governance in Haiti."  It looks at the Haitian water sector to get a clearer picture of the landscape.  The study was funded by the Inter-American Development Bank, and included an analysis of the regulatory capacities of local government agencies in northern Haiti (where foreign governments are funding a large industrial park).  Here is an excerpt:

The first phase of this study collected and analyzed the laws, policies, and institutions involved in water resources management in Haiti.  Results from that phase suggest that the laws and policies affecting water resources create a fragmented and uncoordinated water management framework, in which national ministries have overlapping mandates and rarely coordinate their efforts effectively.  In addition, while the legal framework transfers significant management authorities (and responsibilities) to local governments, there is little else in the way of statutory or regulatory guidance for these governments to rely on.  For that reason, the legal framework creates broad ambiguities regarding how local governments are to be financed, staffed, or otherwise carry out their water management duties.  These uncertainties could, in theory, create the interpretational space needed for local governments to experiment with water management strategies and techniques in ways that foster resilience and increase sustainability.  In practice, it seems more likely that opaque legal mandates would create confusion and leave local governments ill-equipped to tackled the daunting challenges of water management. 

The following case study of institutional capacities in the Trou du Nord watershed in northern Haiti suggests that most agencies and stakeholders have neither the human nor the financial resources in place to fulfill their mandates.  Some, however, such as DINEPA’s local representatives or the University of Limonade, are relatively well-staffed and exhibit the continuity of presence needed to justify targeted capacity building efforts.  Others, such as the sections and communes in the region, may have low levels of capacity in water resources management but merit engagement in order to secure broad participation in water management planning efforts.  The institutional capacity analysis that follows has been conducted with an eye towards informing the final component of the IDB project funding this study: an integrated water resources management plan for the Trou-du-Nord watershed.

The Trou du Nord river is located in the Trou du Nord Arrondissement, a subdivision of the Northeast Department of Haiti.  The Arrondissement contains four communes: Caracol, Saint Suzanne, Terrier-Rouge, and Trou-du-Nord.  These communes comprise the local government bloc of stakeholders most integral to a participatory water management planning strategy, as they represent the core geographic regions of the watershed, while exhibiting a level of regulatory and management activity that lower levels of government (i.e., sections within the communes) lack.  For the most part the four communes do not employ any full-time staff dedicated to water resources, though some activities fall within the broad scope of water management.  More important, perhaps, is the local support and buy-in that would be needed from each commune to effectively carry out a water management plan that modifies the status quo in any meaningful way.

Caracol is a flood-prone coastal commune on Caracol Bay, at the mouth of the Trou-du-Nord river.  It is sparsely populated, but due to the Caracol Industrial Park’s presence, demographics are in flux and electricity is reliable.  The commune reports a total annual budget of less than $195,000, of which over 40% comes from a European Union development project. The 39 staff receive an annual salary of around $4,320, but none are dedicated to water management per se.  A significant portion of commune tasks pertain to waste management, accomplished with wheelbarrows and two motorcycles.  There are no vehicles, nor is there a disposal site in the commune.  While commune staff do not engage in water management themselves, they do work closely with DINEPA staff on water projects when necessary.

On the opposite end of the watershed, the commune of Saint Suzanne sits at the source of the Trou-du-Nord river and comprises a significant portion of the watershed’s catchment area.  The overall budget and staff salaries are similar to those of Caracol, though in practice staff are often not paid on time.  The office has one functioning computer, one motorcycle, and no human or financial resources dedicated to water management.  DINEPA’s presence is minimal, supplemented by periodic wells drilled by international NGOs.  Staff conduct street cleaning, but lack an official disposal site.  Hygiene facilities are minimal to non-existent. 

The communes of Terrier-Rouge and Trou-du-Nord lie between upstream Saint Suzanne and downstream Caracol.  Terrier-Rouge is the eastern commune, sitting directly on the Route Nationale of the northern transportation corridor.  The industrial park has financed new housing projects and reliable electricity in the commune.  A municipal engineer on staff facilitates the issuance of construction permits, and the commune has hired eight staff to conduct reforestation work.  Most other staff are engaged in street cleaning.  The commune lacks a waste disposal site, though plans are in place to build a site capable of serving multiple communes.  DINEPA’s presence, and hygiene facilities, are minimal and supplemented by international NGOs.  The overall budget and staff salaries are similar to those of Caracol, with neither dedicated to water management in any meaningful way.

Finally, the Trou-du-Nord commune forms the western flank of the watershed.  The river flows through the commune before passing by the industrial park.  While no housing projects have been constructed its proximity to the park has enabled reliable electricity throughout the commune.  The commune is relatively well-staffed, with an engineer on hand to issue construction permits, and staff engaged in waste management and small-scale hygiene projects.  However, little infrastructure is available for these purposes, as the commune has only one tricycle and some wheelbarrows, no disposal site, and a dysfunctional water supply system.

The full study is available here.

The Environmental Impacts of Marijuana Prohibition, Ctd

Photo: California National Guard.

A reader sends along an interesting take from Mother Jones on the recent large-scale raids on marijuana properties in northern California.  The report supports my concerns (outlined here) that water-stressed areas might start experiencing an awkward convergence of water and marijuana legal frameworks as states begin focusing their limited enforcement capacities on properties allegedly violating both paradigms:

There were helicopters, SWAT teams, and nearly 100,000 marijuana plants yanked out of the ground, but last week's massive raid in Northern California's rugged Emerald Triangle was not your father's pot bust. Carried out by county law enforcement with no help from the DEA, it targeted private landowners—and not just because they were growing pot, police say, but because they were illegally sucking some 500,000 gallons of water a day from a section of the nearby Eel river that is now stagnant and moss-ridden.  In short, the cops say this was as much a water raid as a pot raid. 

I remain skeptical of using water rights violations as a justification for marijuana raids, largely because marijuana cultivation remains at-best a gray-market activity, making it difficult for growers to comply with state environmental regulations without making themselves vulnerable to federal seizures and arrests.  And as with other regulatory realms, the state will struggle to enforce consistently:

A leading advocate for Northern California pot growers scoffs at the notion that the raid was environmentally motivated. "This isn't about the environment; this is about business as usual," says Hezekiah Allen, director of the Emerald Growers Association [...] "There are 2,200 un-permitted water diversions for wine grapes in the Central Valley," he points out, citing a state report, "so I am curious when we are going to see the sheriff show up and chop down un-permitted vines. If we are agnostic about what the crop is, the same crime should lead to the same activity. That is all we are asking, just to be treated like any other crop."

"Everything is Connected" - Thoughts on the Environmental Encyclical of Pope Francis

Photo: Aleteia.

Laudato si' is the second encyclical of Pope Francis, and the first that is considered entirely his work.  Encyclicals are letters written by the Pope intended to provide authoritative guidance to bishops (or occasionally a wider audience) on a particular question or issue of high importance, considered significant in part for their rarity.  Pope Francis' predecessor, Benedict XVI, wrote three in his eight years of papal service, and before him John Paul II wrote 14 in his 27 years.  Encyclicals are not produced lightly, and signal that the issues addressed are of high priority to the Catholic Church.

That Laudato si' is largely focused on the environment and its degradation is therefore a watershed moment for international environmental lawmaking and the human-natural relationship in general.  So far many (examples here, here, and here) are pigeon-holing the encyclical as a manifesto on climate change, and that's unfortunate.  I've written about the overshadowing effect climate change has on other environmental issues (see here and here), and Laudato si' appears to be falling victim to that dynamic.  In reality the encyclical is much broader, questioning fundamental assumptions about human society and our relationship with the earth - and ourselves.  In particular, Pope Francis expresses skepticism in humanity's collective trust in technological progress, free markets, and utilitarian materialism.  Give the Pope credit for one thing at least: he's not afraid to ruffle some feathers.

Interspersed with these weighty pronouncements are some environmental law and policy positions I find significant in part because Pope Francis eschews the typical platitudes found in many environmental advocacy documents, instead honing in on some very specific prescriptions.  

Take water law for example.  One of the fundamental tensions in water management is a seeming contradiction between privatizing water resources and taking advantage of market fundamentals on the one hand, and the belief that water is a common good and a human right on the other hand.  Jewish and Islamic texts generally perceive water as a common good (Sharia literally means "the way to water").  Here is Pope Francis' position:

Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights.

A human right to water has been advocated for by many in the last decade, pushing back against perceptions (such as the Dublin Declaration in 1992) that water is an economic good.  Unfortunately a human right to a finite natural resource is easier to pronounce than operationalize, and few who advocate for a human right to water have come up with a policy that reconciles universal water rights with the realities of water scarcity.  The Pope offers one solution, at once obvious and elusive: wholesale lifestyle change and a rejection of practical relativism.  "A misguided anthropocentrism leads to a misguided lifestyle."  In other words, environmental change can happen only through self-change and a less consumerist way of life.

Contemporary notions of democracy are similarly challenged by the encyclical.  It is the short-term thinking of politicians and their constituents that prevents the long-term thinking prudent natural resources management requires in the first place.  Intergenerational equity is not a new concept, but receives little support from status quo institutions.  Here Laudito si' uses it not only to justify long-term thinking, but also to reject the cost-benefit paradigm that is prevalent in even liberal environmental circles:

Is it realistic to hope that those who are obsessed with maximizing profits will stop to reflect on the environmental damage which they will leave behind for future generations? Where profits alone count, there can be no thinking about the rhythms of nature, its phases of decay and regeneration, or the complexity of ecosystems which may be gravely upset by human intervention. Moreover, biodiversity is considered at most a deposit of economic resources available for exploitation, with no serious thought for the real value of things, their significance for persons and cultures, or the concerns and needs of the poor.

Here I think the Pope gives too little credit to the potential of market forces to internalize externalities.  Valuation of ecosystem services is challenging, to be sure, but methodologies are being improved upon every day.  At the end of the day, is internalizing external costs a more difficult undertaking than adopting wholesale lifestyle changes?  Certainly there is value in having a better understanding of the value ecosystems provide.

Ultimately the encyclical acknowledges the role and need for environmental laws, but remains deeply skeptical of the institutions in place to enforce them:

Whether in the administration of the state, the various levels of civil society, or relationships between individuals themselves, lack of respect for the law is becoming more common. Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective? We know, for example, that countries which have clear legislation about the protection of forests continue to keep silent as they watch laws repeatedly being broken.

To me that's not a rejection of environmental law as much as an acknowledgement that environmental laws are a necessary but not sufficient condition for a healthy environment.  But the encyclical starts to contradict itself some by promoting the principle of subsidiarity (the idea that governance should be decentralized to take advantage of local knowledge and conditions) while at the same time rejecting policies that may be effective in one jurisdiction or another.  "There are no uniform recipes, because each country or region has its own problems and limitations." Yet the Pope rejects carbon credits because they "may simply become a ploy" for continued degradation.  They may, or they may not.  But it seems to me that local experimentation should be encouraged, and if political actors can compromise on a cap-and-trade program, well, let's see what they can do.  

At the end of the day, Laudito si' is a remarkable document for its scope and ambition.  Not only does it elevate "the environment" to a higher position on political priority lists around the world, it frames a wide variety of seemingly disparate global challenges through the lens of environmental degradation.  Laudito si' is being hailed as a climate change piece, but in his first major encyclical, Pope Francis has done much more than advocate for climate change action.  Laudito si' questions fundamental assumptions about human social order and our relationship with both the earth and ourselves.   

Regulating the drought in California, Ctd

Groundwater pumping in California.  Photo: General Physics Laboratory.

For the first time in the Public Policy Institute of California's polling history, Californians now list 'water and drought' as the most important issue facing the state, almost twice as important as 'jobs and the economy.'  No wonder, then, that water law reform is developing quickly.  Last week the state Senate passed a bill that would finally make data from well logs (showing well location and depth) a matter of public record.  California had been the only Western state that did not provide public access to well logs.  According to stakeholders, the drought has precipitated rapid shifts in public opinion on water regulation:

This is the third time that Pavley has introduced legislation to make the well logs public. The data have been restricted to the well owner, the Department of Water Resources, and selected state agencies for more than 50 years. The Legislature required well drillers to file the completion reports starting in 1949, but two years later lawmakers, at the request of well drillers who claimed the information was a trade secret, halted public access to the documents.

Times have changed. John Hofer, executive director of the California Groundwater Association, which represents well drilling companies, said the organization will not oppose the bill.  “We’re not going to stand in the way,” Hofer told Circle of Blue. “It’s not an issue for us now. We’re not going to fight it. It’s coming.”

The legislation is a good start, but remains incomplete for two reasons.  First, because while the logs are made public, the actual owners and users of those logs remain confidential.  Public shaming of excessive water users in Silicon Valley led to California tightening public access to water consumption records in the late 1990s.  Public shaming may not be the most effective route towards use reductions, but knowing who is operating and using wells is important for groundwater management.  And that leads to the second concern: California water laws still lack a mechanism to monitor and distribute actual extraction data.  In other words, well users still aren't required to report how much water they're using.  Until then hydrological models will estimate supply and demand, but the legislature still has work to do to make extraction data more accessible.  Still, if public opinion on the drought remains steady, more reforms to California water law are sure to come.  Stay tuned.

Regulating the drought in California, Ctd

California cabbage crops.  Photo: Naotake Murayama.

In a sign of how wobbly California's water law regime has become, farmers with long-standing water rights in the Sacramento-San Joaquin Delta made an offer to the state of California late last month in which they promised to cut their water use by 25%, in exchange for a promise from the state that no further reductions would be applied.  It was a shrewd and unprecedented tactic, considering many farmers hold decades or even centuries-old water rights.  Under California's hybrid prior appropriation/riparian system of water law, many farmers obtained their water rights by making use of waterways in the early 20th century.  Because older rights take priority over newer rights, older rights holders are virtually guaranteed their allotment, even in times of scarcity.  But this year's drought is so severe that state regulators are enforcing mandatory cuts on even the most senior water rights holders.  

And that prompted farmers in the Sacramento-San Joaquin Delta to negotiate the 25% reduction settlement, which the state agreed to last week.  The feeling is that while 25% cuts are painful, at least farmers can plan for those reductions with some certainty, and avoid a doomsday 100% reduction scenario.  This farmer sums it up well:

“For me, 25 percent I can handle,” said Gino Celli, who farms 5,000 acres of tomatoes, alfalfa and corn in the delta. “Anything more than that — man, I’m done.”

Said another:

“There is a threat that the state might try the unthinkable and tell us that we cannot use any of the water,” said Dennis Gardemeyer, a delta farmer who helped spur the deal. “I and almost everyone in the delta think that will result in all manner of lawsuits and they will not prevail, but there’s always that threat.”

Now that the framework for agricultural water reductions are in place, farmers will have to choose between a painful but feasible voluntary reduction, or roll the dice with their existing rights and potential litigation.  It seems all but certain that cuts to long-standing rights holders are forthcoming:

Other cuts are virtually inevitable for farmers who don’t participate, said Felicia Marcus, chair of the state Water Resources Control Board. [...] Further cuts will go beyond any that have ever happened before: “Senior [water rights] holders have never been cut as much as they will be this year,” Marcus said. “Lawsuits are inevitable.”

Under the deal farmers in the Sacramento-San Joaquin Delta had until today, June 1, to submit their reduction plans to the state.  It will be interesting to see how many of the region's farmers submit plans and how many of those plans get approved.  It's not clear at this point what the state's criteria will be for evaluating those plans, but a pragmatic approach would favor reductions that can be easily monitored and enforced, like foregoing a crop entirely or fallowing a field.  In some cases cutback orders are being enforced by the honor system, and as little as one fifth of farmers may be complying with mandatory water reductions.  Negotiated water reduction deals are promising, but reducing the monitoring and enforcement pressure on state regulators should be a central component to any lasting water law reform.