This article is part of Boulder Weekly’s ongoing examination of water in the West over the next several months, as climate change, infrastructure projects and politics continue to imperil the sustainability of this vital resource.
How to govern water resources in the West has been a contentious issue since Europeans first started settling the land, and the Colorado River has been at the forefront of the debate for more than a century. As more and more people populated the arid regions of the American Southwest, the idea of “first in time, first in right” emerged as the ruling principle for allocating who could take water from streams and rivers, and when. In Colorado, these water rights were tied to property rights, but by the 1890s many stream and river systems in Colorado were over-appropriated and a complex legal system for settling water disputes emerged.
Now, the very premise of this system is being challenged in court. A new lawsuit filed in U.S. District Court in Denver on Sept. 25 is asking a judge to treat the Colorado River as a person rather than property, therefore recognizing its right “to exist, flourish, regenerate, and naturally evolve.” It makes the argument that if corporations in the U.S. can be granted the same rights as people, shouldn’t rivers be allowed that status as well?
The Colorado River as an ecosystem is the plaintiff in the case, with members of Deep Green Resistance, an environmental activist group, listed as guardians or next friends, acting on the river’s behalf. And it sets the State of Colorado as the defendant, seeking to set precedence for future lawsuits that could hold the government responsible for certain actions, or inactions, that have caused the river harm.
“Normally in environmental law you have to show how some sort of action, be it state action or a corporate action, injures a human being,” says Denver attorney Jason Flores-Williams, who filed the case on the river’s behalf. “Even though we know at this point scientifically that injuries to the environment are injuries to human beings, the law hasn’t caught up to it yet.”
The suit is based on the rights of nature philosophy, a growing movement in environmental law that hopes to establish the inherent rights of the natural world to exist and flourish independent of human ownership or use. Although the idea has been around for decades, it has gained momentum in recent years as climate change and other human factors increasingly threaten entire ecosystems.
“There’s a growing understanding that environmental frameworks that exist today under environmental laws are not adequate to protect the environment,” says Mari Margil, with the Community Environmental Legal Defense Fund (CELDF), which is acting as legal advisor in the case. “They begin from the wrong place, the wrong premise, that nature is treated as right-less, as property, and therefore we can’t even protect its basic right to exist let alone to flourish.”
By authorizing the use of the natural environment, Margil says, existing environmental laws, such as the Clean Water Act, actually are “legalizing environmental harm.” Therefore, these laws are lacking in their attempt to actually protect and preserve the natural world, she argues.
“We’re seeing ecosystems collapse, species extinction, and the acceleration of climate change,” she says. “We’re seeing environmental decline around the world even in the face of all these environmental laws that are purported to protect the environment.”
CELDF and other environmental law groups have worked with communities around the country and the world to establish rights of nature laws over the past decade, many of which are cited in the Colorado River case. In 2008, Ecuador became the first country to codify rights of nature in the country’s constitution. Last year, the Ho-Chunk Nation in Wisconsin began the process of establishing rights of nature in its tribal constitution. Other cases in Colombia, New Zealand and three dozen municipalities in the U.S. have implemented some sort of rights of nature policy, including the City of Lafayette, which passed its Climate Bill of Rights in April. Earlier this year a court in India declared that the Ganges and Yamuna Rivers are legal, living persons.
Rights of nature advocates acknowledge giving the Colorado River personhood would be a paradigm shift for water law in Colorado, but a necessary one.
“If you look at the Colorado River today, we’ve over-promised,” Margil says. “There isn’t enough water to fill the property rights that people, that governments have to that water.”
While the Colorado River used to flow for 1,450 miles starting in the Rocky Mountains, it rarely reaches the Pacific Ocean near Sonora, Mexico, anymore. Although the 1922 Colorado River Compact, which allocates water to seven Southwestern states, requires a minimum flow of 15 million acre-feet, the annual average is now below that. Plus, new research out of the University of Arizona and Colorado State University estimates there will be an additional 30 percent further decline in the river’s volume by 2050 due to climate-change-induced drought. Not only does this threaten multiple animal and plant species that depend on the river for survival, it threatens the nearly 40 million people and 4 million acres of American and Mexican cropland that also depend on the river’s water.
“We need to change how we govern our own behavior towards the natural world,” Margil says. “It’s really about codifying into law, therefore into practice, the steps we must take to live sustainably with the natural world upon which we depend.”
And part of doing that is equaling the playing field, Flores-Williams says. Establishing the river as a person, an entity with rights, would put it on par with corporations, which have long controlled the legal system with their vast financial resources, he argues, and which have in many ways added to the river’s degradation, with little legal recourse, he argues.
“This is simply a pragmatic solution. If you believe in science and take a rational, reasonable look at what’s happening in the environment in this world, it’s hard for me to imagine that law would simply want to be silent and have nothing to say about it,” Flores-Williams says.
Granting the river the same rights as a person “gives the courts a tool to be able to address [environmental] injuries,” he adds.
The State of Colorado declined to comment on the lawsuit, but water-rights owners and critics of the rights of nature approach argue that taking the current system and turning it on its head would unravel more than 150 years of water law without a clear path forward.
“The basic fundamental [premise], that an individual, a person or a city or a municipality can have a property right to use the water for beneficial use is key to our water law in the state of Colorado,” says Don Shawcroft, president of the Colorado Farm Bureau. In Colorado, agriculture accounts for 90 percent of the state’s water use, and farmers own a majority of water rights. “The biggest danger is that if you establish that a river has a right, then who is going to determine what that right is?”
The net result would be more lawsuits, says Doug Kemper, executive director of the Colorado Water Congress, a Denver nonprofit representing water users throughout the state. “The practical effect would be, someone’s going to have to make decisions on water projects [and] what you’re going to end up doing, in my opinion, is you’re going to end up having the courts just making all the decisions, which is not very effective.”
Establishing that the river has rights in and of itself, while also holding the State accountable for its harm, leaves too many questions unanswered, Kemper says.
“I don’t know as though we’re really clear as to what the true outcome of that means. Does that mean water quality standards are going to change? Is permitting going to change?”
Critics of the lawsuit also argue it could also undermine the reliability of our water system and cause uncertainty for water providers and users throughout the state. Plus, it has the possibility of violating the state constitution, if water-rights owners aren’t properly compensated.
“A lot of it quite frankly does in fact go back to this concept of reliability. It’s been since even before 1876 when the state was established that individuals filed for a water right to use water in a specific way from a specific stream,” Shawcroft says. “That reliability has value to it. Any change that would come back would diminish that value, would certainly be a taking of value and at least the guarantee of the constitution that even public entities can’t take something away from you without compensating you for that loss in value.”
Furthermore, Shawcroft adds, the rights of nature concept has little legal standing and has been rejected by courts in various forms already. He doesn’t expect this latest case to go any differently.
He does acknowledge, however, that water scarcity issues are a concern in the West, especially for farmers and ranchers who see water and land resources as integral to an entire way of life. He remains optimistic that humankind can figure out how to meet our demand for water within the current legal system, pointing to the use of desalination technology in other arid climates like the Middle East. But methods such as this aren’t without challenges either, as examined in the first installment of this series (“The new gold rush, Part 1,” Sept. 14 ). The use of water markets is another approach, Shawcroft says. Although this approach is still based on the fundamental premise that water is a commodity that can be bought and sold, not an entity that has rights in and of itself.
“Whether or not our legal system recognizes that nature has rights, it does,” says Grant Wilson of Earth Law Center, and also a member of Boulder Rights of Nature (BRON), a citizens group advocating for rights of nature laws in jurisdictions throughout Boulder County. He is not involved in the current lawsuit, but works on similar campaigns throughout the world.
The rights of nature approach to water is not advocating for rivers to go untouched and water unused, or for nature to “revert back to something that’s already gone, which is a natural state of the world,” he says. And it’s not about prioritizing the health and well-being of the river ecosystem over that of humans. Rather, it’s a rebalancing of resources so that both the basic needs of humans and ecosystems are met. The two aren’t mutually exclusive, Wilson argues.
“I think if you look at any environmental area where it’s been majorly degraded, it’s impossible to separate the health of nature with the health of humans,” he says. “Pollution in water is harming people’s health in communities. Lack of water because it’s used irresponsibly means some communities don’t have it. If we manage it responsibly and have adequate supplies of clean water through the rights of nature approach, it will benefit human health.”
If the Colorado River were granted personhood through this lawsuit, humans would still need to be involved in its management. In other countries like India and New Zealand where rivers have been given these rights, the courts have appointed a permanent legal guardian to protect the river’s interests, and one could expect a similar approach in the U.S. Wilson for one, would advocate for Native Americans to hold this role, as the rights of nature approach is based on indigenous people’s relationship to the natural world and they have traditionally relied on the Colorado River long before Europeans settled the West.
Although the environmental laws of the 1970s had their time and place, it’s time for our legal system to evolve as our understanding of ecological health and environmental crises grows, he says. If the U.S. District Court rules in favor of the Colorado River in this case, it would be a major step toward establishing rights of nature throughout the U.S. But it would also guarantee the continued existence of the river and its ecosystem on which humans depend, he argues.
“It isn’t what some people fear, which is that rivers will be untouchable, pristine, off limits areas and that humans are going to suffer. I think it will be a rebalancing and a period of adaptation,” Wilson says. “And people will find that their needs are still being met and the well-being of rivers will be improved and they’ll be happy about that for themselves, and their children and future generations.”