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The Allocation of Groundwater: From Superstition to Science  

Burke W. Griggs

Groundwater is a critical natural resource, but the law has always struggled with it. During the 19th and early 20th centuries, the common law developed several doctrines to allocate groundwater among competing users. The groundwater revolution of the mid-20th century produced an explosive growth in pumping worldwide—and quickly exposed the flaws of these doctrines. Legal rules predicated on land and on surface waters could not meet the challenges posed by the common-pool groundwater resource: those of understanding groundwater dynamics, quantifying the impacts of pumping on other water rights, and devising satisfactory remedies. Unfettered by received property restraints, pumping on an industrial, aquifer-wide scale depleted and contaminated aquifers, regardless of doctrine. The groundwater revolution motivated significant legal developments. Starting in the 1970s, the Supreme Court of the United States adapted its methods for resolving interstate water disputes to include the effects of groundwater pumping. This jurisprudence has fundamentally influenced international groundwater law, including the negotiation of trans-boundary aquifer agreements. Advances in hydrogeology and computer groundwater modeling have enabled states and parties to evaluate the effects of basin-wide pumping. Nonetheless, difficult legal and governance problems remain. Which level of government—local, state, or national—should exercise jurisdiction over groundwater? What level of pumping qualifies as “safe yield,” especially when the aquifer is overdrawn? How do the demands of modern environmental law and the public trust doctrine affect groundwater rights? How can governments satisfy long-neglected claims to water justice made by Indigenous and minority communities? Innovations in groundwater management provide promising answers. The conjunctive management of surface and groundwater can stabilize water supplies, improve water quality, and protect ecosystems. Integrated water resources management seeks to holistically manage groundwater to achieve social and economic equity. Water markets can reward water conservation, attract new market participants, and encourage the migration of groundwater allocations to more valuable uses, including environmental uses. The modern law of groundwater allocation combines older property doctrines with 21st-century regulatory ideals, but the mixture can be unstable. In nations with long-established water codes such as the United States, common-law Anglophone nations, and various European nations, groundwater law has evolved, if haltingly, to incorporate permitting systems, environmental regulation, and water markets. Elsewhere, the challenges are extreme. Long-standing calls for groundwater reform in India remain unheeded as tens of millions of unregulated tube wells pump away. In China, chronic groundwater mismanagement and aquifer contamination belie the roseate claims of national water law. Sub-Saharan nations have enacted progressive groundwater laws, but poverty, racism, and corruption have maintained grim groundwater realities. Across the field, experts have long identified the central problems and reached a rough consensus about the most effective solutions; there is also a common commitment to secure environmental justice and protect groundwater-dependent ecosystems. The most pressing legal work thus requires building practical pathways to reach these solutions and, most importantly, to connect the public with the groundwater on which it increasingly depends.


Politics of Local Community Engagement in Transboundary Water Negotiations  

Isabela Espindola and Pilar Villar

The sharing of transboundary water resources, whether surface or groundwater, is a significant challenge, both in theory and practice. Countries in situations of sharing these natural resources are predisposed to interact with each other. These interactions, here called transboundary water interactions, are characterized by the coexistence of cooperation and conflict, which can arise at different governance levels. However, negotiations around transboundary water resources primarily occur between diplomats and high government members from riparian countries and river basin organization (RBO) managers. Transboundary water negotiations are usually considered high-level political discussions, given the complexity and scale of the water challenges. Consequently, decision-making processes incorporate only a limited number of participants, who make decisions capable of impacting the entire population that depend on the shared waters. Over the last 20 years, there has been a need for greater transparency and a participatory process in transboundary water negotiations, especially for local community engagement and collaboration in these processes. Many of the negotiation processes around transboundary water resources need the participation of municipalities and local populations, concomitant with the involvement of RBOs, to carry out decisions to manage transboundary waters in an integrated manner. There are several reasons for this demand, including negotiation effectiveness, contestation prevention, data sharing, ensuring continuing participation and collaboration, and promoting public awareness related to water resources. Discussing social participation, particularly in the management of transboundary water resources, requires attention to the historical context and its constraints. Considering the enormous challenge, the experiences of local community engagement in transboundary water negotiations in South America, especially from the Guarani Aquifer and the La Plata Basin, are good examples for improving this discussion around transboundary water interactions and local community engagement. The La Plata Basin is the second-largest transboundary basin in the continent, shared by Argentina, Bolivia, Brazil, Uruguay, and Paraguay, while the Guarani Aquifer is one of the largest reservoirs of freshwater worldwide, shared by Argentina, Brazil, Paraguay, and Uruguay. Even with both having cooperation agreements in place between the riparian states, there are still great difficulties with regard to the participation of local communities in transboundary water negotiations.


Environmental and Cultural Flows in Aotearoa and Australia  

Erin O'Donnell and Elizabeth Macpherson

In settler colonial states like Australia and Aotearoa New Zealand, water for the environment and the water rights of Indigenous Peoples often share the common experience of being too little and too late. Water pathways have been constrained and defined by settler colonialism, and as a result, settler state water law has both a legitimacy problem, in failing to acknowledge or implement the rights of Indigenous Peoples, and a sustainability problem, as the health of water systems continues to decline. In both Australia and Aotearoa New Zealand, the focus of water law has historically been to facilitate use of the water resource to support economic development, excluding the rights of Indigenous Peoples and poorly protecting water ecosystems. However, in the early 21st century, both countries made significant advances in recognizing the needs of the environment and the rights of Indigenous Peoples. In Aotearoa New Zealand, Te Tiriti o Waitangi (the Treaty of Waitangi) provides an important bicultural and bijural framework that is beginning to influence water management. In 2017, as part of a Treaty dispute settlement, Aotearoa New Zealand passed legislation to recognize Te Awa Tupua (the Whanganui River) as a legal person and created a new collaborative governance regime for the river, embedding the interests and values of Māori at the heart of river management. In Australia, water recovery processes to increase environmental flows have been under way since the 1990s, using a combination of water buybacks and water savings through increased efficiency. There has been growing awareness of Indigenous water rights in Australia, although progress to formally return water rights to Indigenous Peoples remains glacially slow. Like Aotearoa New Zealand, in 2017, Australia also passed its first legislation that recognized a river (the Birrarung/Yarra River) as a living entity and, in doing so, formally recognized the responsibilities of the Wurundjeri Woi Wurrung people as Traditional Owners of the river. This trend toward more holistic river management under a relational paradigm, in which the relationships between peoples and places are centered and celebrated, creates a genuine opportunity for water governance in settler states that begins to address both the legitimacy and sustainability flaws in settler state water law. However, these symbolic shifts must be underpinned by relationships of genuine trust between Indigenous Peoples and the state, and they require significant investment from the state in their implementation.


Containing Carbon Through Cap-and-Trade or a Per-Unit Tax  

John A. Sorrentino

Carbon has been part of the Earth since its beginning, and the carbon cycle is well understood. However, its abundance in the atmosphere has become a problem. Those who propose solutions in decentralized market economies often prefer economic incentives to direct government regulation. Carbon cap-and-trade programs and carbon tax programs are the prime candidates to rein in emissions by altering the economic conditions under which producers and consumers make decisions. Under ideal conditions with full information, they can seamlessly remove the distortion caused by the negative externality and increase a society’s welfare. This distortion is caused by overproduction and underpricing of carbon-related goods and services. The ideal level of emissions would be set under cap-and-trade, or be the outcome of an ideally set carbon tax. The ideal price of carbon permits would result from demand generated by government decree meeting an ideal fixed supply set by the government. The economic benefit of using the ideal carbon tax or the ideal permit price occurs because heterogeneous decision-makers will conceptually reduce emissions to the level that equates their marginal (incremental) emissions-reduction cost to the tax or permit price. When applying the theory to the real world, ideal conditions with full information do not exist. The economically efficient levels of emissions, the carbon tax, and the permit price cannot be categorically determined. The targeted level of emissions is often proposed by non-economists. The spatial extent and time span of the emissions target need to be considered. The carbon tax is bound to be somewhat speculative, which does not bode well for private-sector decision-makers who have to adjust their behavior, and for the achievement of a particular emissions target. The permit price depends on how permits are initially distributed and how well the permit market is designed. The effectiveness of either program is tied to monitoring and enforcement. Social justice considerations in the operation of tax programs often include the condition that they be revenue-neutral. This is more complicated in the permit scheme as much activity after the initial phase is among the emitters themselves. Based on global measurement of greenhouse gases, several models have been created that attempt to explain how emissions transform into concentrations, how concentrations imply radiative forcing and global warming potential, how the latter cause ecological and economic impacts, and how mitigation and/or adaptation can influence these impacts. Scenarios of the uncertain future continue to be generated under myriad assumptions in the quest for the most reliable. Several institutions have worked to engender sustained cooperation among the parties of the “global commons.” The balance of theory and empirical observation is intended to generate normative and positive policy recommendations. Cap-and-trade and carbon tax programs have been designed and/or implemented by various countries and subnational jurisdictions with the hope of reducing carbon-related emissions. Many analysts have declared that the global human society will reach a “tipping point” in the 21st century, with irreversible trends that will alter life on Earth in significant ways.


Economics of Hazardous Waste Management  

Hilary Sigman

Hazardous waste management involves treatment, disposal, or recycling of a wide range of different waste streams from industry, households, and others. The diversity of wastes and management methods means that many choices affect its environmental harms, which result from possible contamination of groundwater, surface water, soil, and air. Efficient public policies that would fully reflect such varied external costs are unlikely to be feasible. In practice, governments principally apply three policy approaches to hazardous waste: taxes on hazardous waste, liability for environmental damages, and standards-based regulation of waste management facilities. Hazardous waste taxes may help internalize environmental costs but do not reflect all the variability in these costs. By contrast, liability for environmental damage can make waste generators and managers confront environmental costs that vary with their particular choices. However, environmental liability is often linked to programs for cleanup of contaminated sites and may not create efficient incentives for active waste management because this liability does not reflect the social costs of the contamination. Regulation usually takes the form of technology and performance standards applied to treatment, storage, and disposal facilities (TSDFs) and affects generation decisions only indirectly. Research finds that public policies that raise costs of hazardous waste management, such as taxes and regulation, encourage less waste generation, but may also provoke detrimental responses. First, facilities may substitute illegal waste dumping for legal management and thus exacerbate environmental damage. Second, generators may ship waste to jurisdictions with weaker environmental protections, especially developing countries, giving rise to a “waste haven” effect. This effect may create offsetting environmental damage, facilitate destructive policy competition among jurisdictions, and worsen inequities in exposure to environmental harm from hazardous waste.


Where Is Equity in Integrated Approaches for Water Resources Management?  

Jeremy Allouche

The challenges of integrated approaches and equity in water resources management have been well researched. However, a clear division exists between scholars working on equity and those working on integration, and there is remarkably little systematic analysis available that addresses their interlinkages. The divide between these two fields of inquiry has increased over time, and equity is assumed rather than explicitly considered in integrated approaches for water resources management. Historically, global debates on water resources management have focused on questions of distributional equity in canal irrigation systems and access to water. This limited focus on distributional equity was side-lined by neoliberal approaches and subsequent integrated approaches around water resources management tend to emphasize the synergistic aspects and ignore the political trade-offs between equity and efficiency. The interlinkages among equity, sustainability, and integration need deeper and broader interdisciplinary analysis and understanding, as well as new concepts, approaches, and agendas that are better suited to the intertwined complexity of resource degradation.


Exploring the Politics of Institutional Fragmentation in Transboundary River Basins  

Christian Bréthaut and Laura Turley

Institutional fragmentation has been less addressed by research when considering the specific context of transboundary river basins, settings that are often characterized by multiple regulatory frameworks as well as by a great range of uses and users of the river that intervene at different institutional levels. Considering that such contexts represent fertile ground for reinforced use rivalries and exacerbated power relations, it is key to focus on the very nature and results of such institutional fragmentation; in other words, it is necessary to explore the politics of institutional fragmentation in transboundary rivers. Three main bodies of literature are suggested as insightful perspectives to provide enhanced understanding of such contexts: (a) institutional fit literature: challenges of fits between institutions and ecosystems, (b) legal pluralism: interplay and co-existence of different normative orders, (c) polycentric governance: coordination modalities between different and independent decision-making centers.


Water Security  

Claudia Sadoff, David Grey, and Edoardo Borgomeo

Water security has emerged in the 21st century as a powerful construct to frame the water objectives and goals of human society and to support and guide local to global water policy and management. Water security can be described as the fundamental societal goal of water policy and management. This article reviews the concept of water security, explaining the differences between water security and other approaches used to conceptualize the water-related challenges facing society and ecosystems and describing some of the actions needed to achieve water security. Achieving water security requires addressing two fundamental challenges at all scales: enhancing water’s productive contributions to human and ecosystems’ well-being, livelihoods and development, and minimizing water’s destructive impacts on societies, economies, and ecosystems resulting, for example, from too much (flood), too little (drought) or poor quality (polluted) water.


Global Climate Change and the Reallocation of Water  

Rhett B. Larson

Increased water variability is one of the most pressing challenges presented by global climate change. A warmer atmosphere will hold more water and will result in more frequent and more intense El Niño events. Domestic and international water rights regimes must adapt to the more extreme drought and flood cycles resulting from these phenomena. Laws that allocate rights to water, both at the domestic level between water users and at the international level between nations sharing transboundary water sources, are frequently rigid governance systems ill-suited to adapt to a changing climate. Often, water laws allocate a fixed quantity of water for a certain type of use. At the domestic level, such rights may be considered legally protected private property rights or guaranteed human rights. At the international level, such water allocation regimes may also be dictated by human rights, as well as concerns for national sovereignty. These legal considerations may ossify water governance and inhibit water managers’ abilities to alter water allocations in response to changing water supplies. To respond to water variability arising from climate change, such laws must be reformed or reinterpreted to enhance their adaptive capacity. Such adaptation should consider both intra-generational equity and inter-generational equity. One potential approach to reinterpreting such water rights regimes is a stronger emphasis on the public trust doctrine. In many nations, water is a public trust resource, owned by the state and held in trust for the benefit of all citizens. Rights to water under this doctrine are merely usufructuary—a right to make a limited use of a specified quantity of water subject to governmental approval. The recognition and enforcement of the fiduciary obligation of water governance institutions to equitably manage the resource, and characterization of water rights as usufructuary, could introduce needed adaptive capacity into domestic water allocation laws. The public trust doctrine has been influential even at the international level, and that influence could be enhanced by recognizing a comparable fiduciary obligation for inter-jurisdictional institutions governing international transboundary waters. Legal reforms to facilitate water markets may also introduce greater adaptive capacity into otherwise rigid water allocation regimes. Water markets are frequently inefficient for several reasons, including lack of clarity in water rights, externalities inherent in a resource that ignores political boundaries, high transaction costs arising from differing economic and cultural valuations of water, and limited competition when water utilities are frequently natural monopolies. Legal reforms that clarify property rights in water, specify the minimum quantity, quality, and affordability of water to meet basic human needs and environmental flows, and mandate participatory and transparent water pricing and contracting could allow greater flexibility in water allocations through more efficient and equitable water markets.


International Environmental Conventions on Biodiversity  

Matti Nummelin and Niko Urho

Conservation and sustainable use of biodiversity have been in the center of policy creation for half a century. The main international biodiversity conventions and processes include the Convention on Biological Diversity (CBD) and its protocols, the Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on Wetlands of International Importance (Ramsar Convention), the World Heritage Convention (WHC), the Convention on Conservation of Migratory Species of Wild Animals (CMS), the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the International Plant Protection Convention (IPPC), the Commission on Genetic Resources for Food and Agriculture (CGRFA), and the International Convention on the Regulation of Whaling (ICRW). The governance of marine biodiversity in areas beyond national jurisdiction (BBNJ) is also discussed, as political focus has shifted to the protection of the oceans and is expected to culminate in the adoption of a new international convention under the United Nations Convention on Law of Seas (UNCLOS). Other conventions and processes with links to biodiversity include the United Nations Convention to Combat Desertification (UNCCD), the United Nations Framework Convention on Climate Change (UNFCCC), and the United Nations Forum on Forests (UNFF). Despite the multitude of instruments, governments are faced with the fact that biodiversity loss is spiraling and international targets are not being met. The Earth’s sixth mass extinction event has led to various initiatives to fortify the relevance of biodiversity in the UN system and beyond to accelerate action on the ground. In face of an ever more complex international policy landscape on biodiversity, country delegates are seeking to enhance efficiency and reduce fragmentation by enhancing synergies among multilateral environmental agreements and strengthening their science−policy interface. Furthermore, biodiversity has been reflected throughout the 2030 Agenda on Sustainable Development and is gradually gaining more ground in the human rights context. The Global Pact for the Environment, a new international initiative that is aiming to reinforce soft law commitments and increase coherence among environmental treaties, holds the potential to influence and strengthen the way biodiversity conventions function, but extensive discussions are still needed before concrete action is agreed upon.