Ben Grumbles: That is a great question, and I think anyone who studies and practices the law asks herself or himself those questions in pursuing justice, environmental justice, recognizing that in one situation or another we all live downstream. And there are always going to be some more powerful, politically powerful players, who may be degrading or threatening some aspect of our quality of life.

I think the law can play a very important role in leveling the playing field, and in getting some - not total, but some degree of justice into the room and on the table. In the United States the environmental laws, such as the federal Clean Water Act, do specifically give downstream states some rights to get a federal higher-level umpire to step in and require the upstream state or the upstream discharger to comply with downstream standards.

Movie 1.3 Texas Water Rights

That is very difficult sometimes, and the wheels of justice move slowly, and also it's not a perfect system. In international law, I know that there is power to convening meetings, and even if you don't have a specific legally enforceable right, through the power of persuasion and public shame you can make change, and convince political parties sometimes, and organizations to change their ways.12

I think one very interesting area of environmental law is the use of legal rights such as in the United States for permits that can be enforceable even by parties who don't have the political clout that the polluter does. And so that's, I think, one of the most important aspects of environmental law is having citizen suits where citizen organizations or downstream states can petition their government to get another organization or party who's polluting their watershed to come to the table and sometimes be forced to meet standards that the downstream state has put in place. Politics is a reality. It certainly doesn't have to be the only factor involved, though, in improving an unjust environmental situation.

Ben Grumbles: Well, what I've learned in upstream/downstream battles among states, as well as countries, is that the first and most important tool that you have, particularly if you are at a political disadvantage, sometimes where you cannot get the attention of the other organization or country, is to have unassailable, scientific data, that clearly demonstrates there's a problem, and that it is not a figment of imagination. It is - and what I've also seen, when there are inter-state battles that I've been involved in, such as between a state  - Montana and Wyoming in the United States, which are often at odds, some of the rivers flow north from Wyoming into Montana, and a key to getting the two parties to engage is to find the scientific data, the monitoring. It requires an investment, but it is to present to the federal court, or the federal agency that has some stature in inter-jurisdictional disputes, that here are the following numbers, the types of pollutants that are the problem, we know where the problem is coming from - and that will then get you farther along in the discussions, and the bilateral discussions will be more constructive if one party cannot simply say, "Well, there's no data on this, you can't prove that we're causing the problem."

So good data is important. The other is finding some venue, some forum, and that's where international law can come into play, or the need for an honest broker, some type of neutral arbiter to step in.13

Movie 1.4 This Little River Went to Market

Ben Grumbles: Well that is a great question, and it makes me think about when a water body itself is the dividing line between different jurisdictions, how in the world can you move forward with an integrated approach when what you're trying to protect is the actual boundary, what amounts to the boundary? In the United States and other countries I know that one way to manage that, sometimes successfully, other times not quite as successfully as hoped, is to create another governing entity that is focused on the boundary itself, and the water body, and doesn't have particular allegiance to any one sovereignty or jurisdiction that is being divided by the line, and so you have associations that are formed in the United States, interstate compacts, interstate river commissions, they’re basin commissions that don't report to the governor of one state or entity of one state or the other, so you have some separate sovereignty.

And in the context of that forum, there is created an environment for more collaboration, but that doesn't always work either, because organizations can be very leery of giving up some of their sovereign rights to a new over-arching organization, whether it's called an interstate river basin commission, or an international river basin commission. But I find that in the world of governance, with difficult and delicate boundary questions, there needs to be some type of super entity that oversees both and is focused on protecting the water, not reporting to the political leader of one sovereign or another. We're all still struggling with that question, and will, increasingly, as populations grow and we see how water is a common linkage to all of us and to countries, so many countries are connected by their water bodies. So it's a question that needs attention, developing realistic solutions.14

Section Quiz