Groundwater Exceptionalism: The Disconnect between Law and Science

Most judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and the scope of jurisdiction under the federal Clean Water Act. This Article constructs a typology of the purported justifications for exceptionalism and identifies its two key consequences: the over-propertization and under-regulation of groundwater. It argues that these distortions must be corrected, not solely as a normative matter, but also as essential reforms to bring the law into alignment with science and promote analytical coherence, faithfulness to doctrinal purpose, and sustainable water use. This Article concludes by culling the lessons from over a century and identifying promising analytical tools to move the law from exceptionalism toward integrity. More broadly, this analysis offers a roadmap for integrating law and science in the context of resource management, a challenge that will become increasingly critical in the face of climate change

Compartmentalized Thinking and the Clean Water Act

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In particular, the discussion considers four aspects of political theory (legal baggage from the New Deal, pragmatism, incrementalism, and political competition) and two tools recognized by cognitive psychology (schema and heuristics). The article’s final part illustrates specific Clean Water Act disputes in which fragmented thinking may have produced cognitive illusions that run counter to the purposes of the statute

The Law of the Lakes: From Protectionism to Sustainability

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country-the Colorado River Basin-where residents have also undertaken the task of managing a water system that includes two nations(The United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lakes documents for evidence of each. Part III offers a description of six essential components of any sustainable water code and provides references to a menu of draftlegislative provisions available for adoption(with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them and take full advantage by developing a sustainable body of water law

The Law of the Lakes: From Protectionism to Sustainability

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country-the Colorado River Basin-where residents have also undertaken the task of managing a water system that includes two nations(The United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lakes documents for evidence of each. Part III offers a description of six essential components of any sustainable water code and provides references to a menu of draftlegislative provisions available for adoption(with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them and take full advantage by developing a sustainable body of water law

The Environmental Commerce Clause

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court\u27s interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect. This study supports two principal conclusions. First, the modern Court has been consistently hostile to environmental regulation. In the context of the commerce clause, for the past quarter century the Court has rarely upheld a natural resource law, whether promulgated by Congress or by the states. This Article considers cases in which the Court invalidated the governmental regulation under scrutiny in ten out of eleven instances. Observing this trend, Chief Justice Rehnquist and Justice Blackmun accused some of their colleagues of engineering a return to laissez faire government. As a second principal conclusion, this study has uncovered a subtle inconsistency between the Court\u27s affirmative and dormant commerce clause analyses. In particular, when the federal government has sought to regulate the use of water and land under the affirmative commerce clause, the Court has emphasized the natural, noncommercial nature of the protected resources rather than the commercial nature of the regulated activity. In the absence of commercial or economic activity, therefore, the federal government lacks commerce clause regulatory authority under the rationale of Lopez. Simultaneously, when the states have attempted to regulate the use of land, water, or fish, the Court has treated such things as market commodities rather than natural resources. As a result, the Court has invalidated those state regulations under the dormant commerce clause as constituting an undue interference with commodities in the flow of interstate commerce

A Background History of Directional Drilling in Michigan

Why should we care about directional drilling? A lot of people care, both at the federal and state levels. Many politicans have weighed in on this issue of whether or not directional drilling should be permitted. Beyond state politics, an interesting legal debate has begun over whether the federal or state government has primary regulatory authority over this amphibious sort of drilling, which starts on the land but ends up under the Great Lakes

On Integrity: Some Considerations for Water Law

Expanding upon the aspects of integrity protected under the Clean Water Act, this Article will explore the relevance to water law of chemical,physical, ecosystem, social, and ethical integrity. Just as the Clean Water Act intended to prevent unacceptable perturbations of ecosystems, so also this Article will consider the extent to which the law itself may work an unacceptable perturbation of fundamental hydrologic and social principles. In many instances, water policy compartmentalizes the law in ways that have little to do with hydrologic reality and in ways that are antithetical to wholeness and integrity. Examples include the legal bifurcation of surface and groundwater, quantity and quality, land and water, and the present and the future. Conversely, integrity-destroying policies may find legal support in arguments that are deceptively integral and holistic in tone. For example, Florida Everglades litigants opposed the regulation of phosphorous pollution under the guise of an argument styled the unitary waters theory. This Article views three contemporary water disputes through the lens of hydrologic integrity. Case studies include the massive program to restore the Florida Everglades; proposals for north-south water transfers in Florida, evocative of the centuries-long dispute between northern and southern California; and the struggle to apportion a three-state river system among competing users as diverse as sprawling Atlanta and the sleepy oyster town of Apalachicola, Florida. Surprisingly, perhaps, all three case studies focus upon Florida, a state that enjoys an average annual rainfall of about 54 inches. The fact that not even a water-rich eastern state is immune from water controversies of national significance underscores the pressing need to ensure that water law reflects principles of hydrologic reality, fairness, and integrity

The Dormant Commerce Clause and Water Export: Toward A New Analytical Paradigm

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska ex rel. Douglas. Determining that groundwater is an article of commerce, the Court held invalid under the dormant Commerce Clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas has challenged Oklahoma legislation limiting water exports, and as Wind River L.L C of Nevada has contested the denial of its application for a permit to acquire water from Arizona. This Article examines the dormant Commerce Clause as it applies to water export. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause — whether water is an article of commerce — into the context of the Clause\u27s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty-five years, this paper suggests three ways in which the Court can bring its water cases into doctrinal harmony with its modern dormant Commerce Clause jurisprudence. In so doing, this Article develops a new analytical paradigm, the water continuum, that respects the nuances of state water law and recognizes that not all water has the same constitutional status

Preserving Monumental Landscapes Under the Antiquities Act

This Article examines the Antiquities Act, a 1906 statute that delegates authority to the President to establish national monuments on federal lands for the protection of prehistoric structures and relics. This modest statute, originally a scant one page in length, has set off a century of intermittent controversy that its drafters could not have anticipated. Although Congress probably intended that the statute merely protect archaeological ruins from looting by treasure hunters, presidents quickly began to utilize the statute to preserve large natural landscapes -- ranging from President Theodore Roosevelt\u27s establishment of the 800,000-acre Grand Canyon National Monument in 1908 to President Clinton\u27s reservation of about five million acres of national monuments from 1996-2001. Some outraged politicians and observers have called for the repeal of the Act and the reversal of executive monument designations. This Article contends that the controversy over the Act is illustrative of a larger phenomenon -- the philosophical view that human culture is distinct from nature. Professor Klein argues that it is time to abandon the rigid legal wall between nature and culture, and to validate explicitly almost a century of past practice preserving large natural areas of historic and scientific significance -- monumental landscapes -- as antiquities