Specialization Trend: Water Courts

By Perez, Vanessa Casado | Environmental Law, Spring 2019 | Go to article overview

Specialization Trend: Water Courts


Perez, Vanessa Casado, Environmental Law


I.     INTRODUCTION                                  588 II.    SPECIALIZED TRIBUNALS                         591        A. Benefits                                   592           1. Celerity                                592           2. Quality of Adjudication                 593        B. Costs                                      594           1. Establishment and Operational Costs     595           2. Risk of Capture                         595        C. Institutional Design                       597           1. Expertise                               597           2. Connection with Other Areas of the Law  599           3. Courts' Structure                       601              a. Separate or Hybrid Models            601              b. Levels                               603              c. Tenure and Promotion                 603           4. Procedure                               605 III.   WHY WATER COURTS?                             606 IV.    SOUTHEASTERN SPAIN WATER COURTS               611 V.     COLORADO WATER COURTS                         618 VI.    SOUTH AFRICA WATER COURT                      622 VII.   MONTANA                                       625 VIII.  CONCLUSION                                    628 

I. INTRODUCTION

Definition of property rights is an essential solution to the tragedy of the commons (1) from which many of our natural resources suffer. The scholarship analyzing how property rights are created and how they evolve often takes for granted the enforcement of those rights. (2) Enforcement is key. Enforcement is a public good often, but not exclusively, provided by government. Enforcement takes many different forms: from ostracism in self-governed property rights systems to administrative agencies' resolutions and judicial decisions in formal property right systems.

This Article focuses on the last step in the enforcement of water rights: the courts. In particular, it analyzes whether the introduction of water courts is advisable in western United States. Currently, water rights are first enforced by administrative agencies, and the decisions of those agencies may be challenged in court. For example, a water rights holder may challenge a water agency's denial of a location change for their water right. (3) Additionally, private parties may bring claims against other water rights holders to court. Presently water cases are heard by generalist state courts. However, water law cases may unduly burden the dockets of those generalist courts. (4) Courts decide on many different areas and the complexity of the facts and the law in water law cases suggests that a different institutional design, one with specialized courts, may be more efficient. (5) The gains in efficiency will come from a faster, more accurate resolution of cases. (6)

Specialized courts are quite common from a comparative perspective in areas as varied as corporate matters, tax issues, gender violence, administrative law, family law, or patents. (7) One such area is environmental law. Forty-two countries have specialized environmental courts. For example, India created the Green Tribunal in 2010, (8) New South Wales (Australia) has the Land and Environmental Courts that hear environmental and land use cases since 1979. (9) Sweden, in 2011, replaced property and environmental courts for a system of Land and Environment Courts which also hears water cases. (10)

In the United States, the generalist judge is celebrated. (11) Judge Posner wrote in defense of the generalist judge in 1983. (12) While in 1990, the United States Judicial Conference qualified them as "exotic," (13) around that time the Vermont Superior Court Environmental Division (14) and the Shelby County-Tennessee Environmental Court (15) were created. Setting aside the specialization of administrative law judges such as the United States Environmental Protection Agency administrative law judges or the environmental appeals board, (16) there are plenty of examples of specialized courts in the United States, such as bankruptcy courts or Federal Circuit Court of Appeals. …

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