interviews
Water and the American West
by Richard Frank
October 25, 2021
This interview with Richard Frank, professor of environmental practice at the UC Davis School of Law and Director of the California Environmental Law and Policy Center, was conducted and condensed by franknews.
frank | Can you tell me a little bit about the story of water and how it's tied to the West, and to California in particular?
Richard | A friend of mine who's a Court of Appeals Justice here in California wrote an opinion on a water law dispute and started it with the quote, "the history of California is written on its waters." And I think that the point is true of the entire American West.
Water policy and legal issues are inextricably tied to the development of the Western United States; water is the limiting factor in so many ways to settlement, to economic development, to prosperity, and to the environment and environmental preservation.
Can you talk about the difference between groundwater and surface water– and the policies that regulate each?
There are really two types of water when it comes to human consumption. There's surface water: that is the water that is transmitted by lakes, rivers, and streams. Then there is groundwater, and a substantial amount of water that Americans and the American West rely on is groundwater. That is water that is stored in groundwater aquifers, which are naturally occurring groundwater basins. Both groundwater and surface water are critical to the American West and its economy and its culture.
Traditionally a couple of things are important to note, first of all, water is finite. Second, water gets allocated in the Western United States generally at the state level. There's a limited federal role. Primarily, policy decisions about who gets how much water for what purpose are made state by state.
I think allocation is really interesting in that it's more state-level than federal. How was water and the allocation of water in California designed? Is it a public-private combination? What goes on in terms of the infrastructure of water?
Another very good question. The answer is it depends. Most of our water infrastructure is public in nature.
Again, in the American West, the regulation of water rights is generally done at the state level, but the federal government, historically, has a major water footprint in the American West because it has been federal dollars and federal design and management that really controlled much of the major water infrastructure in the American West — you know, Hoover Dam, and the complex system of dams and reservoirs on the Colorado River in California, with the Central Valley Project that was built and managed by the federal government with Shasta Dam on the upper Sacramento River as the centerpiece of that project. But we also have a California State Water Project, the key facility being the Oroville Dam and reservoir on the Southern River that is managed by state water managers. If we were starting over, that kind of parallel system would make no particular engineering or operational sense.
But, we are captive to our history.
And then you have these massive systems of aqueducts and canals that move water from one place to another throughout the American West. They are particularly responsible for moving water from surface water storage facilities to population centers. In the last 50 to 75 years, these population centers have really expanded dramatically, so you need massive infrastructure to deliver water from those storage facilities, the dams, and reservoirs, which generally are located in remote areas to the population centers. So it takes a lot of time and energy to transport the water, from where it is captured and stored to where it is needed for human use.
California has faced continuous drought – what measures is the state taking now to manage water?
Just to frame the issue a little bit — we have, as I mentioned, a growing population in the American Southwest at a time when the amount of available water is shrinking due to drought and due to the impacts of climate change. We have growing human demand for residential and commercial purposes and at the same time, we have a shrinking water supply. That is a huge looming crisis.
And it is beginning to play out in real-time. You see that playing out in real-time. For example, several different states and Mexico rely on Colorado River flows based on an allocation system that was created in the 1920s, which is overly optimistic about the amount of available water. From the 1920s until now, that water supply has decreased, and decreased, and decreased. Now you have interstate agreements, and in the case of Mexico, international agreements that allocate the finite Colorado river water supplies based on faulty, now obsolete, information. It is a real problem.
What measures do you take now, knowing this information?
If you look at the US Drought Monitor, it is obvious the problem is not limited to the Colorado River. We are in a mega-drought, so cutbacks are being imposed by federal and state water agencies to encourage agricultural, urban, and commercial water users to cut their water use and, and stretch finite supplies as much as possible through conservation efforts.
In California, we have the State Water Resources Control Board, the state water regulator in California, and they have issued curtailment orders. Meaning, they have told water rights holders, many of whom have had those water rights for over a hundred years, that, for the first time, the water that they feel they are entitled to, is not available. Local water districts are also issuing water conservation mandates; the San Francisco water department is doing that, in Los Angeles, the metropolitan water district, is urging urban users to curtail their efforts.
And then agriculture. Agricultural users — farmers and ranchers — have had to get water rights in many cases through the federal government, as the federal government is the operator of these water projects. They have contracts with water users, individual farmers, ranchers, or districts, and they are now issuing curtailment orders. They're saying, we know you contracted for X amount of water for this calendar year, but we are telling you because of the drought shortages we don't have that water to supply. Our reservoirs are low at Lake Shasta or at the Oroville Dam.
When you drive from San Francisco to LA on the five, you see a lot of signage from the agricultural farming community about water. There's apparently some frustration about this. What are the other options for them?
About 80% of all human consumed water goes to agriculture. That is by far the biggest component of water use, as opposed to 20% used for urban and commercial, and industrial purposes.
Over the years, ranchers and farmers, and agricultural water districts assumed that the water would always be there — as we all do.
And the farmers and ranchers have, in hindsight, exacerbated the problem by bringing more and more land into production. You see on those drives between San Francisco and Los Angeles, particularly in the San Joaquin Valley, all these orchards are being planted. Orchards are more lucrative crops than row crops — cotton, alfalfa, and rice. But, if you are growing a row crop, you can leave the land fallow in times of drought.
We don't have to plant. If the water stopped there, or if it's too expensive to get, it may make economic sense, but if you have an orchard or a vineyard it's a high value, those are high value crops, you don't have that operational flexibility and they need to be irrigated in wet years and in dry years. Now, you see these orchards, which were only planted a few years ago, are now being uprooted because the farmers realized that they don't have the water necessary to keep those vineyards and orchards alive. For ranchers, the same thing is true with their herds. They don’t have enough water for their livestock.
The water shortage has never been drier than it is right now. Farmers and ranchers are being deprived of water that they traditionally believed was theirs and they're very understandably, very unhappy about it. They see it as a threat to their livelihood and to the livelihood of the folks who work for them. Their anger and frustration are to be expected, but it's nobody's fault.
To say, as some farmers do, that it is mismanagement by state and federal government officials, I think is overly simplistic and misplaced in the face of a mega-drought. Everybody's going to have to sacrifice. Everybody's going to have to be more efficient in how they use water. All sectors are going to need to be more efficient with the water that does exist.
Looking at this percentage breakdown of water use – is it actually important for individual users to change their water habits?
Well, every little bit helps. When you're talking about homeowners, about 70% of urban water use is for outdoor irrigation. So we're talking parks and cemeteries and golf courses and folks' yards. You know, that used to be considered part of that American dream and the California dream — you would have a big lawn in front of your house and behind your house. Truth be told, that has never made much sense in an arid environment. That's where the water savings in urban areas is critical in the way it really involves aesthetics rather than critical human needs, like water for drinking and bathing and sanitation purposes. There is a growing movement away from big lawns, and away from the type of landscaping that you see in the Eastern US — there is no drought in the Eastern United States. As Hurricane Ida and other recent storms have shown, the problem is too much water, or rather than too little in most of the Eastern United States. So it really is a tale of two countries.
We just need to recognize that the American West is an arid region. It has always been an arid region, we can't make the desert bloom with water that doesn't exist. We need to be more efficient in how we allocate those water supplies. And it seems to me in an urban area, the best way to conserve and most effective way is to reduce urban landscaping, which is the major component of urban water use.
You also write about water markets and making them better – for those who don’t know, what is the water market?
Water markets, that is, the voluntary transfer of water between water users, is more robust in some other Western states. Again Arizona and New Mexico come to mind. California somewhat surprisingly is behind the curve. We are in the dark ages compared to other states. Water markets are kind of anecdotal. There is not much of a statewide system. It is done at the local level, through individual transactions without much oversight and without much transparency. And I have concerns about all of those things.
I believe conceptually watermarks are a way to stretch scarce, finite water resources to make water use more efficient. I can, for example, allow farmers or ranchers to sell water to urban uses or commercial usage or factories in times of drought.
Farmers sometimes can make more money by farming water, than they can by farming crops.
There are efficiencies to be gained here.
The problem in my view is really one of transparency. The water markets are not publicly regulated, and some of the people who are engaging in water transactions like it that way, frankly, they want to operate under the radar.
In my opinion, water markets need to be overseen by a public entity rather than private or nonprofit entities. We need oversight and transparency, so that folks like you and myself can follow the markets to see who's selling water to whom, for what purpose, and make sure that those water transfers serve the public interests and not just the private interests.
There have been a number of stories in the New York Times and the Wall Street Journal and the Salt Lake City Tribune about efforts in some parts to privatize water transfer. Hedge fund managers are buying and selling water, as a means of profiting. And it strikes me that when you're talking about an essential public resource — and in California, it is embedded in the law that public water is an inherently public resource, that water is owned by the public and it can be used for private purposes, but it is an inherently public resource — the idea of commoditizing water through the private, opaque markets is very troublesome to me. I think it represents a very dangerous trend and one that needs to be corrected and avoided.
Why is California so behind?
There's no good reason for it. It's largely inexplicable that since the state was created on September 9th, 1860, we've been fighting over water. In the 19th century, it was miners versus farmers ranchers. In the 20th century, with the growth of urban communities, the evolution of California into one of the most populous states with 40 million Californians, it has been a struggle between urban and agricultural uses of water.
In the second half of the 20th century, there was a recognition that some component of water had to be left in streams to protect ecosystems, landscape, and wildlife, including the threatened and endangered wildlife. That suggestion has made agricultural users in California angry. You will see those signs that allude to the idea that food and farming are more important than environmental values. I don't happen to believe that's true. I believe both are critically important to our society. But the advocates for the environment have a proverbial seat at the water table. So that's another demand for water allocation that exists.
Do you maintain optimism?
Yes. I think it's human nature to look on the bright side. I try to do that through research scholarships and teaching. There are models for how we can do this better in the United States. Israel and Saudi Arabia and Singapore are far more efficient with their water policies and efforts. Australia went through a severe megadrought. They came out of it a few years ago, but they used that opportunity to dramatically reform their water allocation systems. That's an additional model. I think most people would agree in hindsight that their previous system was antiquated, and not able to meet the challenges of climate change and the growing water shortage in some parts of the world.
Here in the United States, we can learn from those efforts. There are also some ways to expand the water supply. Desalination for one. Again, Singapore and Saudi Arabia have led the world in terms of removing the salt content from ocean water and increasing water supply that way. In Carlsbad, California, north of San Diego, we have the biggest desalination plant in the United States right now, and that is currently satisfying a significant component of the San Diego metropolitan areas’ water needs. It's more expensive than other water supplies, but the technology is getting more refined, so the cost of desalinated water is coming down at a time when other water supplies, due to shortages and the workings of the free market are going up.
At some point, they're going to meet or get closer. Unlike some of my environmental colleagues, I think desalination is an important part of the equation.
In a proposal that came up in the recall election, one of the candidates was talking about how we just need to build a canal from the Mississippi River to California to take care of all our problems. That ignores political problems associated with that effort, as well as the massive infrastructure costs that would be required to build and maintain a major aqueduct for 2000 miles from the Mississippi to California. That's just not going to happen. Some of those pie in the sky thoughts of how we expand the water supply, I think, are unrealistic.
interviews
Citizens United: Explained
by Ron Fein
December 15, 2020
This interview with Ron Fein, the legal director of Free Speech For People, was conducted and condensed by franknews.
Ron | Free Speech For People a non-profit, non-partisan organization that was founded in January 2010. Our mission is to fight for free and fair elections, to fight against the influence of big money in politics, and to hold those in power in government accountable.
frank | Can we start with the Citizen United decision? How did that ruling impact the capacity for free and fair elections?
Before the Citizens United decision, the Supreme Court had allowed certain limits on campaign finance for several decades.
In Buckley v. Valeo, the Supreme Court said that the public could limit the amount of money being contributed to a campaign. They did so, not because there was an interest in pursuing the promise of political equality and “one person, one vote,” but because of an interest in preventing corruption, or preventing the appearance of corruption. Under that framework, the Court allowed for some meaningful campaign finance reform. The high watermark of that was the Bipartisan Campaign Reform Act, commonly called the McCain-Feingold Act, which was upheld by the Supreme court in 2003.
However, shortly after that decision, there were changes in the composition of the Supreme Court, and the Court began to cut back what restrictions were allowable. They did two major things. First of all, they said that the only reason that campaign spending could be limited was to prevent quid pro quo corruption, the narrowest possible definition of corruption, rather than corruption of the system in a broader sense. And secondly, the Supreme Court said that corporations, as well as labor unions, have the constitutional right to spend unlimited amounts of money in elections.
By doing that, the Supreme Court set in motion a retrenchment that has enabled wealthy and corporate interests to challenge more and more campaign finance reforms as violating their constitutional rights.
The SpeechNow.org v. Federal Election Commission decision is also known as a case that really solidified the reach that super PACs have. Can you talk about that case?
The Court of Appeals for the D.C. Circuit, a lower federal court that hears many challenges to federal laws, issued the SpeechNow decision just a few months after the Citizens United decision. The SpeechNow decision says that if a PAC (political action committee) promises to spend its money without coordinating with the candidate’s campaign, it is unconstitutional for Congress to limit the amount of money that can be contributed to that committee. That is what created super PACs. This decision has actually never been reviewed by the U.S. Supreme Court, but it has effectively become the law of the land in the decade since it was decided. And it will remain the law of the land until the Supreme Court or a federal court of appeals, that is not the D.C. Circuit, decides differently.
I think it's important to layout just what a super PAC is.
As an individual, how much you can contribute to a candidate is still limited by federal law. You cannot contribute $6,000 directly to the Biden campaign or the Trump campaign, or to anybody running for Congress. But, you can contribute $6 million or $60 million or $600 million to their super PACs, as long as the super PAC promises not to “coordinate” their efforts.
There are still the old fashioned PACS whose contributions to candidates are limited to $5,000 per year. But they've become less and less relevant as super PACs have come to dominate and swallow up the older form of political spending.
How is coordination defined legally, and what does it look like in practice?
As long as a super PAC does not talk to the campaign manager or the candidate’s campaign about where exactly to buy ads, the money they are spending is considered to be “independent” spending. The constitutional idea that the Supreme Court has set forth is that if the spending is done independently of the campaigns, then it can't be limited constitutionally.
Under Federal Election Commission regulations, you could technically have a super PAC that is run by a relative of the candidate or their former campaign manager, who knows exactly where the candidate is buying their ads. The candidate is even allowed to appear at fundraisers for the super PAC and encourage people to contribute.
Do you think that there should be tighter rules about what “coordination” is defined as?
Some of this could be fixed by the Federal Election Commission tightening rules around coordination, but even if it were to do that, no coordination rules could ever solve the fundamental problem, which is that political operatives can toe whatever lines the regulatory agency might set forth. As long as the rule coming from the courts is that big donors have a constitutional right to contribute unlimited amounts of money to the super PAC, we have a giant loophole to work around contribution limits to the candidates. Why would you stop at giving $6,000 to a candidate when you can give, if you have it, $6 million to their super PAC — or $60 million or $600 million?
Where does the money that runs through super PACs come from for the most part? Is it mostly large corporations or wealthy individuals?
Some of it is directly from corporations. A lot of it comes from wealthy individuals. And some of it is actually harder to trace. The contributors to a super PAC must be disclosed, but in some cases, those contributors themselves are entities that raise money and they don't have to disclose their donors, such as 501(c)(4) groups, sometimes called dark money groups. And you will know which dark money group gave money to the super PACs, but you don't know who gave money to the dark money group.
On a basic level, what do people get from giving large sums of money to super PACs?
Particularly if it's a super PAC that the candidate is connected to, donors get the benefits of influence and access to that candidate. If you give a million dollars to a super PAC supporting a candidate, you're going to be able to have a phone call with that candidate to talk about your particular policy priorities — whatever tax favor you're looking for or whatever regulatory favor you need for the business that you run.
Do you see an opportunity for getting past the narrow definition of corruption?
There's a long-term goal and a shorter-term goal. The long term goal is a constitutional amendment to overturn Citizens United and other cases that came before it. We want to go back to before Buckley v. Valeo and reset the framework for how courts consider questions of campaign finance on an entirely different footing that places the principle of one person, one vote, and the promise of political equality at center stage.
Until that happens, we're dealing with courts operating under the framework that was established in Buckley and worsened under Citizens United. We want to lay the groundwork for a future Supreme Court that may be amenable to revisit some of those decisions. And we also want to look for any spaces where the Court has not yet committed itself on a particular point, such as with Super PACs.
How was the case that your team tried to bring to the Supreme Court, Lieu v. FEC, part of that effort to lay a new groundwork?
The Lieu case was a challenge filed by several members of Congress, Ted Lieu, Democrat of California; the late Walter Jones, Republican of North Carolina; and Senator Jeff Merkley, Democrat of Oregon, as well as some 2016 congressional candidates, who sought to raise the question of the constitutionality of limits on contributions to super PACs. This went through the D.C. Circuit, the very federal court that issued the SpeechNow.org v. Federal Election Commission decision in the first place. The framework for that case was an action seeking to enforce the existing federal limits on contributions that had been struck down in SpeechNow and to have the Supreme Court declare that SpeechNow was incorrectly decided in the first place.
The Supreme Court, ultimately, decided not to take the Lieu case. We filed the petition in June of 2020. The untimely passing of Justice Ginsburg and the elevation of Justice Barrett in her place changed the dynamic of the Supreme Court. While we're disappointed that the Court did not take this particular opportunity to review SpeechNow, the question is still open and it can be brought again to the Court under different circumstances.