California's Human Right to Water Law at 10 Years: the Limits of Narrative Aspiration and Policy Incrementalism

JurisdictionCalifornia,United States
AuthorWritten by Max Gomberg
CitationVol. 32 No. 1
Publication year2023
CALIFORNIA'S HUMAN RIGHT TO WATER LAW AT 10 YEARS: THE LIMITS OF NARRATIVE ASPIRATION AND POLICY INCREMENTALISM

Written by Max Gomberg1

California's Human Right to Water Law (HRTW law), passed in 2012, marked the first successful state statute to define water as a human right and ushered in subsequent legal and policy actions that materially improved the lives of hundreds of thousands of people.2 The HRTW law itself, however, created no requirements for action and no local responsibility for its implementation.3 Rather, the law, like many human rights frameworks, is aspirational.4 The law uses universal language and includes a broad range of goal categories but does not include any language regarding transparency and accountability. As a result, there is no narrative foundation for understanding violations of the enumerated rights. This article examines the narrative and legal framework of human rights violation and assesses whether it could be applied to the HRTW law to accelerate its implementation.

BACKGROUND ON CALIFORNIA'S HUMAN RIGHT TO WATER LAW

Several international and California-specific reports from 2002-2012 laid the groundwork for the HRTW law. In 2002, the United Nations held the World Summit on Sustainable Development, which was a milestone in the lead up to the Sustainable Development Goals adopted in 2015.5 On July 28, 2010, the United Nations General Assembly adopted Resolution 64/292, recognizing a human right to water and sanitation.6 In California, both research and advocacy organizations were sounding the alarm about unsafe drinking water for residents living near agricultural and industrial contamination. Different organizations published reports about the impacts of nitrates in drinking water,7and the Community Water Center, an advocacy organization founded in 2006 began organizing residents in the San Joaquin Valley to advocate for safe drinking water solutions.8 Drawing from the international framework, California advocates drafted legislation that enumerated safe, accessible, and affordable water as human rights and directed relevant state government agencies to consider how to advance them in agency decisions, such as regulatory and funding actions.9

INTELLECTUAL AND LEGAL ANTECEDENTS TO CONTEMPORARY HUMAN RIGHTS STATUTES

The concept of human rights and their violations has been part of different world

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cultures for millennia.10 After World War II, through the United Nations, the language of human rights was more explicitly codified in declarative documents such as the universal declaration of human rights.11 Moreover, legal accountability regimes were developed for the worst human rights violations (e.g., genocide).12 Perhaps the most important precedent emerged through the Nuremberg trials; namely, that soldiers were responsible for their crimes even if they were following orders.

Through the 1960s, as many former European colonies achieved independence and sought to establish democratic governments, the narrative of human rights was widely used and seen as a way to expand individual and collective freedoms.13 However, in recent decades, legal regimes meant to provide people with safe harbor against human rights violations (i.e., asylum) have faced significant backlash from people and politicians invested in white supremacy. Nevertheless, curing human rights violations continues to be the pretext for international interventions and after-the-fact tribunals, in places such as the former Yugoslavia and Rwanda.14

While the worst human rights violations (e.g., mass killings, forced displacement) are most often carried out by national governments, the more mundane day-to-day violations take place through power dynamics at the local level. These normalized violations manifest as direct and institutionalized discrimination and violence against Black, Indigenous, and communities of color (BIPOC), women, and other marginalized groups, such as religious minorities and people who are not heteronormative (e.g., people who are Lesbian, Gay, Bisexual, Transgender, and Queer). Institutional human rights violations include those perpetrated by law enforcement agencies, local governments (i.e., housing policy and industrial zoning with disproportionate negative impacts on BIPOC communities), private enterprise (i.e., banks through redlining), and all levels of government through due process violations such as cash bail.

HRTW VIOLATIONS IN CALIFORNIA

In California, HRTW violations are characterized as policy failures. They include living without access to safe or reliable drinking water and losing access to drinking water through the accumulation of debt and service disconnection. While the perpetrators of these violations are often identifiable,15 the establishment narrative16 is not one of violation, but rather one of unmet need and a societal necessity to weigh violations (impacts) against public and private institutional interests. For example, in establishment discussions around Sustainable Groundwater Management Act (SGMA) implementation, domestic wells that go dry due to nearby agricultural well use are not the result of human rights violations but rather a side effect of private enterprise that can be mitigated through provision of water from alternative sources.17 In the affordability and access context, service disconnections for unpaid bills are not human rights violations, but rather necessary actions to preserve institutional finances and authority. In these instances, we see the clear gap between an aspirational statute enumerating human rights and the political narrative and legal frameworks governing land and resource management that do not recognize those rights.

Without a narrative of violation, government officials face relatively little pressure to devote enforcement resources towards upholding the law. Absent enforcement, institutional and private actors who wield power (i.e., water and agricultural agencies) focus their resources on securing public monies to "socialize the losses" stemming from their actions.18 Moreover, when governments face pressure to cure highly visible impacts, such as water contamination and empty taps, they focus on use of existing resources to treat symptoms rather than causes.19 In effect, as administrative, funding, and legal processes drag out over years, the results in marginalized communities are a variation on the phrase "justice delayed is justice denied."

The slow and incremental pace of change to redress causal factors (contamination, groundwater depletion, and unaffordability) is evident in the laws and policies adopted to advance HRTW. Resources dedicated to safe drinking water have been allocated to temporary (interim) solutions, including delivery of clean water and support for operations and maintenance, rather than permanent solutions that require governance, financial, and enforcement actions. For example, despite the passage of legislation (SB 552, 2016) granting the State Water Resources Control Board (Board) additional authority to mandate system consolidations in disadvantaged communities, the Board has only exercised that authority in a handful of cases.20 Moreover, the Board has not attempted to assert authority over groundwater pumping relating to the common law doctrine of public trust protection and the doctrine of reasonable use enshrined in the state Constitution.21

As a result, dozens of communities are years (if not decades) away from having clean and reliable drinking water while there is no guarantee of funding for long-term solutions after 2030. In addition, while water affordability received

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significant attention during the initial years of the COVID-19 pandemic, political will to establish a low-income water assistance program is still lacking.22 Thus, for the foreseeable future, HRTW outcomes will remain a function of local willingness to prioritize the HRTW goals. At the state government level, the narrative is no longer about solving an unacceptable injustice with haste, but rather about making progress.23

THE NARRATIVE OF LOCAL CONTROL

In California, institutional actors wary of HRTW requirements benefit from another narrative advantage: the narrative of local control. The local control narrative is a relative of the federalism narrative that animated the U.S. Constitution. The premise for federalism is that too much centralized power (such as a monarchy) leads to the worst outcomes.24 (Of course, that reasoning was also used as a pretext to allow for the worst outcome for Black people (slavery) in the Southern states, proving that its assertion should always be viewed as suspect.)25 Under the narrative of local control, state governments cede significant authority over land use, law enforcement, housing production, transportation systems, and water management (groundwater pumping, drinking water, wastewater, and stormwater) to local governments (including agricultural water districts). Local governments, backed by powerful business interests and property owners, have successfully framed the situation as one of allowing for variation due to community character and preventing state government overreach.26 As a result, the state cannot easily cure human rights violations...

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