Climate Change Politics: Calling Junior Appropriators!
“Whiskey is for drinking. Water is for fighting over.”
At least that’s the old saying (incorrectly attributed to Twain), and it is true. You can’t study water law for more than a moment without seeing conflict. In the west, water law is particularly conflictual due to the system of prior appropriation: rivers are divided into senior and junior appropriators, with the former taking priority in dry times. That means that conflicts do not simply arise between uses, e.g. agriculture and domestic use, or between farmers and ranchers, but even appropriators within one use, because during a shortage winners and losers are starkly divided.
And that, it seems to me, provides something of a political opportunity for climate change advocates.
We know that climate change will make droughts and heat waves, of the type we have had this summer, more common and more intense. Obviously, this means that farmers will suffer. In the water context, though, that begins to look more and more like every appropriator for himself. It is one thing to say, “here is this impending environmental crisis, and people like you stand to suffer from it.” It is quite another for someone to say, “here is this impending environmental crisis, and you yourself stand to suffer from it.”
During a drought, when a river is “called”, i.e. when senior appropriators start enforcing their priority, water is not divided equally, or equitably adjusted: junior appropriators are cut off. That means climate change will affect them substantially, and directly, and much more acutely than other farmers. They are a particularly vulnerable group.
It seems to me, then, that one place where climate change advocates could pursue support are among those appropriators on rivers and other water sources who have junior priority because their claims are later in time. These don’t figure to be the sorts of people who have traditionally allied themselves with the environmental community. They are involved in agriculture, most often in arid interior west of plains states that show up very red on electoral maps. And precisely because of this, they represent constituencies who have not — yet — lent their voice to climate politics.
Fully appropriated rivers, like the Rio Grande and the Platte, have very public lists of the appropriation ranks. Environmental organizations might want to start looking closely at them in their search for political allies.
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…READ more