How to Take Climate Change Into Account: A Guidance Document for Judges Adjudicating Water Disputes

• Date: 01 December 2010
• Author: Carolyn Brickey, Kirsten Engel, Katharine Jacobs, Julia Matter, Daniel F. Luecke, Marc L. Miller, Jonathan Overpeck, and Bradley Udall

12-2010 NEWS & ANALYSIS 40 ELR 11215

A R T I C L E S

How to Take

Climate Change

Into Account:

A Guidance

Document for

Judges Adjudicating

Water Disputes

by Carolyn Brickey, Kirsten Engel, Katharine

Jacobs, Julia Matter, Daniel F. Luecke, Marc L.

Miller, Jonathan Overpeck, and Bradley Udall

Editors’ Summary

is report is intended for use by federal, state, and admin-

istrative judges who are confronted with a legal dispute

involving a water resource that is alleged to be impacted by

climate change. It may be useful as well for attorneys litigat-

ing or experts working on water adjudications. e purpose

of this document is to summarize the manner in which cli-

mate change may impact rights and frameworks established

under state and federal law concerning water resources and

to anticipate the issues that water-related climate claims

will pose to legal decisionmakers. is report arose out

of the November 11-12, 2009, workshop, “Water Law

and Climate Change,” held in Reno, Nevada, and spon-

sored by the National Judicial College and Dividing

the Waters, a nonprot organization of federal and state

water adjudicators. No judge who attended the workshop

has reviewed or approved of the content of this document.

is document does not reect the personal opinion of any

individual judge.

Water management and the resolution of water dis-

putes have long relied on a simple and fundamen-

tal assumption: the past is a way to understand the

present and to predict the future. us, for example, water

allocation decisions—whether made by states in negotiat-

ing an interstate compact or by courts quantifying reserved

rights—were made based on the historic record of water sup-

ply availability.

Climate change undermines t he basic premise in water

disputes that the past is a fair predictor of the future. Cli-

mate change is already aecting some hydrological regimes,

and, in the f uture, such eects wi ll increase.1 Decisions that

depend on projections of what may occur in the future pres-

ent courts with a greater degree of uncertainty than they

faced in the past.

Climate change issues are being raised and increasingly

considered in water litigation and in environmental policy

more generally. is document notes the escalating impor-

tance for water management of the “climate change/hydro-

logic cycle” link and sketches implications for courts. e

general problem climate change presents to courts in water

disputes is how to deal with decisionmaking in light of

greater uncertainty. e report surveys several tools judges

can use to understand the new science of climate change, and

some of the options for resolving water disputes in ways that

reect a more rapidly changing and uncertain world.

Many courts are already deciding issues related to climate

change. In fact, climate change has been considered in doz-

ens of cases handed down by federal and state courts. Sev-

eral of the most signicant cases thus far involve actions to

compel federal agencies to regulate or consider the emissions

of greenhouse gas (GHG) emissions under existing environ-

mental laws. Of these cases, Massachusetts v. EPA2 is the most

important. A second important line of cases seeks to compel

1. Climate Change and Water. Technical Paper of the Intergovernmental Panel

on Climate Change (IPCC), IPCC Secretariat, Geneva, 210 pp. (Bryson Bates

et al. eds., 2008).

2. 549 U.S. 497, 37 ELR 20075 (2007).

Carolyn Brickey is Director of Government Relations for the Pew

-

fessor at the James E. Rogers College of Law, University of Arizona.

Katharine Jacobs is a Professor of Soils, Water, and Environmental

Science at the University of Arizona. Julia Matter is a 2010 gradu-

ate of the James E. Rogers College of Law, University of Arizona.

Daniel F. Luecke works with Dividing the Waters. Marc L. Miller

is the Ralph W. Bilby Professor of Law, James E. Rogers College of

Law, University of Arizona. Jonathan Overpeck is a Professor of

Geosciences and Co-Director of the Institute of the Environment,

University of Arizona. Bradley Udall is on the Research Faculty at

the University of Colorado and Director of the CU-NOAA Western

Water Assessment.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.