Equity and the Colorado River Compact
Robison, Jason A., Kenney, Douglas S., Environmental Law
V. REALIZING EQUITY
In our view, the Colorado River Compact's commitment to "equitable division and apportionment of the use of the waters of the Colorado River System" (185) constitutes a venerable precedent that should guide Colorado River governance on an intergenerational basis. We acknowledge that people hold diverse views on the meaning of equity in the context of water allocation--both in terms of the factors associated with the norm and their relative priorities. We recognize (and embrace) the fact that these views change across time. We likewise make no originalist claim that our conception of equity mirrors exactly ideas about the norm held by the commissioners who formed the Compact almost a century ago. Notwithstanding these caveats, we subscribe to the basic notion that our society's varied, evolving ideas about fairness should shape schemes apportioning water use from the Colorado River System, including governance structures devised for these schemes. The Law of the River's ongoing evolution should not proceed simply based upon the principle of might-makes-right translated into political or economic terms. (186) Positioned as the cornerstone of the Law of the River, equity should be a lodestar for dialogue about the future of the Compact (187)--a dialogue of critical importance to the Colorado River and the roughly 30 million people dependent on its water. (188)
To what extent does the Compact fulfill its commitment to equity? What equity-related concerns need to be taken into account if we are serious about honoring this commitment in contemporary times? How should we move forward in light of these concerns? What exactly should be done to address them? The questions are majestic ones that we can only begin to engage in this Part. We do so by focusing on the principles of equity set forth in Part III. (189)
Relying on these equity principles, we highlight three salient issues below, each of which bears significantly on the perceived equity of the Compact's apportionment scheme and warrants consideration in contemporary discourse about Colorado River governance. Two of these issues pertain to the principles of substantive equity and are examined in the first section. We begin this section by drawing attention to the questionable distributional fairness of the Compact's apportionment scheme--specifically, in relation to how the scheme (depending upon how its key terms are interpreted) calls for allocating water between the Upper and Lower Basins in light of current and projected future hydrological conditions. After fleshing out this initial issue, we proceed to evaluate the Compact's apportionment scheme in relation to the principle of flexibility, illuminating the arguably skewed balance struck by the scheme with respect to this principle and the principles of fidelity and reliability. Subsequently addressed in the second section, the final issue broached below relates to the principles of procedural equity as they bear on the need for a functional governance structure to ensure the apportionment scheme is implemented. We broadly discuss the potential creation of a formal governance entity for this purpose.
A. Substantive Equity
The principle of reciprocity can be summarily stated as follows for our purposes: Apportionment schemes should strive for distributional fairness in terms of how they define entitlements (permitted types and amounts of water use), allocate entitlements among different types of water users, and establish the relative priorities of entitlements. (190) This principle is relevant for considering a wide range of matters associated with the Law of the River, including historical and contemporary issues related to entitlements held by American Indian tribes in the Colorado River Basin as well as entitlements held for environmental purposes (e.g., for national parks and other federal lands). (191) Stemming from our core interest in the Compact, we focus on reciprocity in this section solely with respect to relations between the Upper and Lower Basins as they are defined by the Compact. …