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.
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6 Replies to “Climate Change Politics: Calling Junior Appropriators!”
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About Jonathan
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…
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Jonathan – This is an intriguing argument. My question – what would the climate change advocates then try to enlist the junior appropriators to do? What is the action they need to engage in?
My fear is that climate change commitment – the climate change already in the pipeline – means any action related to greenhouse gas reduction might seem irrelevant because the expected climate change on decadal scale means the junior users are screwed no matter how successful we are in reducing greenhouse gas emissions.
Also, as a practical matter (and speaking with first hand expertise in New Mexico’s water situation), we don’t have appropriation rank listings for most of the Rio Grande in New Mexico. The lower part of the river is in the midst of a laborious adjudication as we speak to determine such rankings, some northern parts of the river are nearing completion of adjudication, but the middle part of the river, where most of the water is consumed, is unadjudicated. The lack of any such rankings is the central problem right now in New Mexico water management.
Jonathan – This is an intriguing argument. My question – what would the climate change advocates then try to enlist the junior appropriators to do? What is the action they need to engage in?
My fear is that climate change commitment – the climate change already in the pipeline – means any action related to greenhouse gas reduction might seem irrelevant because the expected climate change on decadal scale means the junior users are screwed no matter how successful we are in reducing greenhouse gas emissions.
Also, as a practical matter (and speaking with first hand expertise in New Mexico’s water situation), we don’t have appropriation rank listings for most of the Rio Grande in New Mexico. The lower part of the river is in the midst of a laborious adjudication as we speak to determine such rankings, some northern parts of the river are nearing completion of adjudication, but the middle part of the river, where most of the water is consumed, is unadjudicated. The lack of any such rankings is the central problem right now in New Mexico water management.
jrfleck — All good points. I suppose my first reaction is to say that climate change advocates are trying to show new constituencies why this issue matters to them. It could also spur them to start asking some very pointed questions to their Congressmembers: “so, Senator Inhofe, if you think that this is fake, you wouldn’t mind holding us harmless in all of this, right? You will do something to make sure that we aren’t the ones who get screwed, right?”
You are correct that since climate change will take time to manifest itself fully, then it puts advocates in a bind. Either it is far away, in which case no action is relevant, or it is right upon us, in which case it is too late to do anything. Perhaps the better way to approach the issue to 1) assume that junior appropriators care about their grandchildren and want to give them the option of continuing their way of life; and 2) make it clear that that will not be possible unless we start to turn the aircraft carrier around now.
I am suggesting that junior appropriators are in a similar position to residents of low-lying areas close to the ocean: they are the ones who are going to be most directly and sharply affected. Even if the most massive impacts are decades away, even small impacts now will have a salient effect on junior appropriators.
Interesting about the Rio Grande. Jeez — appropriators have been drawing from that thing for over a century, and it still isn’t adjudicated? Wow. I know that the Platte is fully adjudicated. Call the ghost of Steve Reynolds and have him take care of it!
jrfleck — All good points. I suppose my first reaction is to say that climate change advocates are trying to show new constituencies why this issue matters to them. It could also spur them to start asking some very pointed questions to their Congressmembers: “so, Senator Inhofe, if you think that this is fake, you wouldn’t mind holding us harmless in all of this, right? You will do something to make sure that we aren’t the ones who get screwed, right?”
You are correct that since climate change will take time to manifest itself fully, then it puts advocates in a bind. Either it is far away, in which case no action is relevant, or it is right upon us, in which case it is too late to do anything. Perhaps the better way to approach the issue to 1) assume that junior appropriators care about their grandchildren and want to give them the option of continuing their way of life; and 2) make it clear that that will not be possible unless we start to turn the aircraft carrier around now.
I am suggesting that junior appropriators are in a similar position to residents of low-lying areas close to the ocean: they are the ones who are going to be most directly and sharply affected. Even if the most massive impacts are decades away, even small impacts now will have a salient effect on junior appropriators.
Interesting about the Rio Grande. Jeez — appropriators have been drawing from that thing for over a century, and it still isn’t adjudicated? Wow. I know that the Platte is fully adjudicated. Call the ghost of Steve Reynolds and have him take care of it!
Independent of the lack of adjudication and therefore clarity about who’s junior here, a variant of your point still stands – water availability is still the salient point with respect to climate change. It’s tangible and immediate, and as a result it’s the area I focus on the most (I’m a journalist covering climate change here in New Mexico).
Independent of the lack of adjudication and therefore clarity about who’s junior here, a variant of your point still stands – water availability is still the salient point with respect to climate change. It’s tangible and immediate, and as a result it’s the area I focus on the most (I’m a journalist covering climate change here in New Mexico).