The Cradle and Frontier
By Oliver A. Houck, Professor of Law, Tulane University

I have always had hope for water, lived my life by it and I believe that for all humans its wellsprings are too powerful to deny.

I grew up on the Hudson River, the cradle of the Waterkeeper movement. I skipped stones on the river off of Croton and crossed it, with my father, on the open ferries between Manhattan and Jersey City. We traveled over the skuzzy, garbage-strewn and foul smelling waters of the Hudson of that day and simply took them for granted. That was just the way rivers were. Finally, of course, some rivers started catching on fire.

What is striking, thinking back, is the extent to which the environmental movement arose from the water. At about the same time that Rachel Carson wrote Silent Spring, which had its own aquatic cast, she wrote The Sea Around Us, one of the first literary adventures into the deep since Jules Verne. Both brought the news of water in peril. Next came the reports from Thor Heyerdahl’s Ra expeditions, his rafts trapped for days in oil slicks and plastic junk, and then Jaques Costeau, whose ocean expeditions and television programs alerted the world. Environmental awareness came from the sea.

It also came from water on land. It was the falls of the Hetch Hetchy Valley that captivated John Muir, and the fight to save that valley from a huge dam converted Muir’s little collection of weekend hikers (men in suitcoats and ladies in full skirts carrying wicker picnic baskets up into the Sierra, imagine!) into a hard-charging and first-ever environmental organization, the Sierra Club. Half a decade later they would be tested yet again by another dam, even bigger, Glen Canyon on the Colorado River. Their fight to save this stretch of river led the IRS to cancel their tax exempt status, which they never recovered. Water projects were among the first causa bellae in America.

Then came the Santa Barbara oil spill and the closure of California’s famous beaches, the Cayauga river in Cleveland caught fire, the Houston Ship Canal caught fire, a jetport was proposed for the Everglades, the water of New Orleans was pronounced unfit to drink, Lake Erie was pronounced dead (they held a mock funeral for it in Cleveland), and on the Hudson there was trouble over a pump storage plant at Storm King Mountain. It was all about water, and it was coming to a boil.

It is also striking how environmental law, once out of the water, hit the land like a walking catfish and never looked back. The law was outlined by the case at Storm King, from a remarkable alliance between blue-blood aristocrats of the Hudson Valley and blue-collar Stripped Bass fishermen who didn’t care what Con Ed did to the top of that mountain, but cared a great deal about dead fish piled up on the grates of the water intakes of the plant like too much trash. They went to war, and out of the war came so many things: the Hudson River Fisherman’s Association, Hudson Riverkeeper, the Highlands Conservancy, the Natural Resources Defense Counsel, the Pace Law Clinic and, from the Second Circuit Court of Appeals, a pivotal legal precedent. Ordinary citizens, they said, had the right to sue their government over environmental decisions. How insulting! That principle still boggles the mind of government agencies, the business world and their adherents on the bench, including the Supreme Court.

Think for a moment about the explosions that followed, coming out of the water like Polaris rockets. First there was Calvert Cliffs, brought by John Hopkins University scientists worried about the effects of thermal discharges from a nuclear power plant on Chesapeake Bay. The case established the rigorous demands of just-enacted, completely opaque, National Environmental Policy Act. Then came a series of cases against Army Corps of Engineers water projects, and equally celebrated fights with other water bureaucracies in California, the Dakotas and Tennessee. Meanwhile, the notion of water protection and its primary tool — citizen litigation — was moving abroad.

They popped up in the most unlikely places — countries not known for activism, independent judicial systems or environmental concerns. In Spain, citizens defeated water projects that would have drained the north to build desert resorts in the south. In Greece, citizen suits stopped a plan to drain the western mountains so that farms in the east would not have to treat their wastes. In India, M.C. Mehta won a series of decisions forcing five thousand factories on the sacred River Ganges to clean up or shut down. And in Canada, Waterkeepers played a key role in opposing, in court and out, a hydro-electric project drowning the homeland of the Cree Nation. You may remember the flotilla that paddled from Quebec province down the Hudson River in kayaks and canoes to rally in New York’s Central Park and persuade the state to cancel its power contracts and save their heritage. Which New York did. The combination of water and people and litigation was proving very powerful.

These victories duly noted, the water fight continues against terribly long odds. Much of it is about money, but it is also about psyches. At one point, during a hearing on a Corps water project, an exasperated government attorney turned to me and said, “The thing that’s wrong with you is that you just like running water!” Of course, the man was absolutely right. But what was so startling about it was that he couldn’t conceive of such a person. To him, his accusation was a huge insult. His outburst told me that the idea of keeping waters goes up against a mindset so alien — and to which we, keepers of water, are in turn so alien — that it is hard to find a common bond. Over time in America, after decades of education on the impacts of pollution, we have forged part of that bond. We have now reached the point where pollution is “bad.” That is progress, and from this premise we can now move towards reform. But where the quantity of water and what passes for “water management” are at issue, we are no closer to finding common ground than we were fifty years ago. Water is money or water is wonder. The sides are drawn.

Here, now, is a darker story, written in levees, drainage canals, pump stations, chains of dams and diversion canals the size of interstate highways, all designed to make sure that water is cheap for some humans, at just about everyone else’s expense. We continue to assert a non-negotiable right to every liquid drop lest, God-forbid, any water escape to remain in the river, breed fish, cool bodies and reach the sea. The challenges here are on an order of magnitude greater than those with pollution. Think: bragging rights. Nobody these days goes around boasting, “I dumped 20,000 pounds of phosphorous into the Apalachicola last week”. But every politician wants his name on a water project — the Hoover Dam, the Thomas Bevil Lock, the J. Bennett Johnston Waterway (whose traffic is less than 10 percent of the benefits projected). We are building monuments, changing landscapes, doing manly things. These are the products of the U.S. Congress, tied by philosophy and campaign financing to the wealthiest industrial, agricultural and municipal water users, with their entourages of real estate developers and construction firms in close tow. Water conservation? Exactly who makes money doing that? No agency ever built a budget and no Congressman ever got reelected by not spending and not building something.

And then there is the obdurate fact of the law here. Western water law, unlike pollution control, does not harmonize use with anything else. It does not consider environmental impacts. Fish are irrelevant. Rivers are irrelevant. In the parts of the U.S. where water is the scarcest, the more you consume the more legal right you have to consume. Water left in the river is “wasted”. This is law written for settlers and pioneers. It is as anomalous today as indentured servitude. Whatever law we needed in order to settle this country, we need something quite different, quite soon, before we bleed ourselves dry. Examine history. It would not be for the first time.

Yet, I have hope. I have always had hope for water, lived my life by it and I believe that for all humans its wellsprings are too powerful to deny. Once upon a time, it is said, a sultan was asked to identify, in his wisdom, the three most beautiful sounds on earth. He replied: “the sound of coins tinkling, the sound of a loved one laughing and the sound of water moving … in reverse order.” Water is life. Every religion on earth knows it. It is where millions of believers in dozens of faiths go to wash their sins. It is where Siddhartha goes to lie down, transcend and die.

I believe that if we finally pass through this dark phase of treating the earth like a throw-away toy, if we stop looking at cockamamie schemes like calcifying the oceans and inhabiting the moon as a way out, if we return to the natural world as a friend rather than a conquistador, it will be in large part because of the pull of water. It is drawing us forward even today to renew ourselves, to leave as our legacy, to lie down beside and transcend. w