I’ve just returned from Ecuador, which is famous among environmentalists across the world because it has “rights of nature” enshrined in its national constitution. Ecuador is the only country in the world to have such a constitutional provision which allows for nature to be a “plaintiff” in a court of law. Further, Ecuadorian activists are very excited that the national parliament has passed a new law to allow citizens to sue the government and corporations for environmental harms. Much like laws in the United States – such as the Clean Water Act – that allow for public enforcement, the new Ecuadorian law gives the public the right and responsibility to protect their environment and the public’s health from polluters.
These legal-rights approaches to protecting nature in Ecuador coincide with “river rights” movements that are escalating across the world. In the last few months, rivers in New Zealand, India and Colombia have been granted rights equal to that of humans. In all three countries, certain rivers can now have human legal guardians, and the river can be named as a plaintiff in court, potentially against a polluter or a dam builder.
With these environmental law enforcement and rights of nature movements in mind, I’m increasingly concerned that many U.S. environmental groups – driven by the big foundations that support these organizations – are moving away from these legal approaches and towards a more capitalistic concept of “free-market environmentalism” and “water markets” as a tool to try and protect rivers.
Over the last decade, tens of millions of dollars have poured out of big foundations into efforts to create water markets in the Western U.S. and California. The largest environmental groups in America are using the money and transforming their environmental work into a nearly single-minded effort towards promoting water markets to protect rivers. Further, the foundations pushing the water markets approach have funded graduate schools, law schools, university water centers and research institutes and a whole flock of water lawyers, consultants and media representatives. Entire conferences now exist focused on water markets, and investors are eyeing big gains by creating hedge funds focused on water to take advantage of the water-market approach.
I have three big concerns with the water market approach to protecting rivers.
First, I have deep concerns about the water-market approach because it further turns the environment into a commodity that can be bought and sold by the highest bidder. By further entrenching the commodification of nature and rivers, we create an elitist system where nature exists when and only if people can afford to pay for it. This is exemplified by land protection efforts where extremely wealthy environmental groups have bought vast stretches of land and restrict public access and give priority access to their funders and members. In a river protection circle, while some funders or communities may choose to pay for the existence of rivers in some places, other places – especially those that are poorer and marginalized – will likely be ignored. I believe that no river or community should be sacrificed, and that rivers have an ethical right to exist everywhere, not only in places where wealthy people or communities can bid high to pay for it.
Second, the material test of the water-market approach is the amount of “wet water in rivers” (or actual water instead of “paper water”) that is created. A more lengthy analysis is needed to quantify this test, but the water-markets approach appears to have only so-far yielded very small, temporary transfers of water away from the biggest diverters (farmers) and back to short stretches of rivers while costing large amounts of money. To be convinced that water markets are a useful tool, I would need an analysis of the cost per acre-foot of how much money has been spent and how much wet water in rivers has been permanently protected or restored. Those numbers should be compared with rights of rivers approaches and likewise similar big investments in law enforcement.
Third, the tactics of the water-market approach has been for the foundations to throw millions of dollars at individual environmental groups, thereby turning those groups and their staffs into arms of the foundations while starving the smaller, more aggressive groups that are focusing on law enforcement and a rights-based approach. The funding flowing into groups that support water markets is so vast that it has completely warped the entire Western American environmental movement. The funding undermines the diversity that is necessary for a healthy movement – systems are healthier when diversity is maximized, biologically and culturally, and that includes the health of the ecosystem of environmental groups. Further yet, change, innovation and diversity is maximized in the liminal spaces of a river as well as in the culture of the environmental movement. Change happens at the edge.
So far, I don’t see evidence to support the idea that water markets will save the rivers of the American West. Alternatively, to save our rivers, I believe we need to more heavily invest in a legalized rights of nature approach. We need to bolster and enforce environmental laws whenever possible. We need to send a strong message to the public that we are not only enforcing existing laws, but we are working to pass new laws that are just, ethical and democratic to entrench the rights of nature and rivers for all the species that depend on them, human and non-human alike, everywhere.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Water Deeply.