Law in the time of cholera.

• Author: Larson, Rhett B.

Thousands die each day from infections related to water, as evidenced in the ongoing crises of cholera in Haiti, Zika in the Western Hemisphere, and Legionnaires' Disease in Flint, Michigan. Yet water law focuses primarily on two agendas. First, the "Blue Agenda " aims to provide an equitable allocation of water to individuals and communities while encouraging sustainable water management. Second, the "Green Agenda " aims to efficiently protect water in the natural environment from pollution. These two agendas often ignore, and can be inconsistent with, the "Red Agenda. " The Red Agenda addresses prevention of waterborne infections, like cholera, and the habitat of water-related disease vectors, like mosquitoes transmitting malaria. Additionally, the Red Agenda focuses on access to water for sanitation and hygiene, with implications for epidemics like Ebola. In simplified terms, the Blue Agenda is about water quantity, the Green Agenda about water quality, and the Red Agenda about water diseases. Laws made in pursuit of the Blue Agenda, like building a dam or irrigation system, can interfere with the Red Agenda by bringing mosquito habitat closer to human communities. And laws made in the pursuit of the Green Agenda, like prohibiting discharges of pesticides into a river, can interfere with the Red Agenda by preventing a response to a malaria outbreak. This Article is the first to introduce the Blue, Green, and Red framework for water law, and explains why these agendas often conflict with each other and how to more effectively integrate these agendas into water law.

Introduction

In an epic example of insight and courage, John Snow saved countless lives and forged a heroic legacy. (1) His triumph in the face of crisis represented a turning point in history, tipping the balance in the ongoing battle between mankind and one of mankind's greatest threats. (2) In 1848, one of a series of massive outbreaks of cholera in the nineteenth century swept through London. (3) Snow observed that the patterns of the outbreak were not consistent with the then-prominent miasma theory of disease transmission--the theory that "bad air" was the cause of epidemics like cholera and bubonic plague. (4) Snow theorized that the mode of transmission was water, and distributed a pamphlet advising hand-washing and boiling drinking water. (5)

In 1854, another cholera epidemic struck London. (6) Snow observed that competing distribution companies delivered water within the Soho neighborhood of London. (7) One of these companies, Vauxhall, derived its water supply downstream of major sewer discharges into the Thames River. (8) The other obtained its water supply upstream of the sewer discharges. (9) Snow, in what is called the "Grand Experiment," compared data on households consuming water supplied from these two companies. (10) Snow noted that the cholera rate was 8.5 times higher in households supplied by Vauxhall than its competitor. (11) He further noted that nearly a quarter of all cholera deaths in London occurred within a short distance of a hand pump on Broad Street, which was installed on top of a cesspit. (12) After speaking with families near the pump, most had lost multiple members of their households to cholera, and all had taken water from the pump. (13) Legend has it that Snow removed the handle from the Broad Street pump, and saved the city. (14) In one of history's greatest examples of inductive reasoning and scientific acumen, Snow ushered in the germ theory of disease transmission and became the father of modern epidemiology. (15)

John Snow's work also began the integration of epidemiology with the development and implementation of law. (16) In March of 1855, Snow testified before Parliament regarding the development of laws to address sanitation. (17) At the time, a bill was proposed to regulate "offensive trades," including bone boiling and gas works, which many believed contributed to the miasma of bad air and thus to disease transmission. (18) Merchants within those trades called on Snow to testify as an expert witness. (19) Snow argued in favor of increased investment in public sanitation projects and protection of drinking water sources rather than regulation of offensive trades that impacted air quality. (20) In 1866, after opposition from political and professional opponents and following another devastating outbreak of cholera, Snow's proposals were finally enacted into law, resulting in regulation of sewage discharges and treatment requirements for drinking water. (21)

Greater integration of epidemiology and water law is still required, including in ex ante procedural rules for the prevention of epidemics, and improved ex post rules to ensure adequate care for infected persons and containment of outbreaks. (22) In Haiti, for example, an ongoing cholera epidemic has killed over 8500 people and sickened over 600,000. (23) In the wake of the catastrophic earthquake of 2010, UN relief workers from Nepal brought a particularly virulent form of cholera into Haiti. (24) The disease was introduced into the Haitian population by poor waste management at the UN camp. (25) A U.S. district court judge recently dismissed a lawsuit against the UN, stating that the UN is immune from liability associated with the cholera outbreak in Haiti. (26) The UN came to restore and improve Haiti's water infrastructure and protect its water resources, and such immunity arguably facilitates the UN's efforts. (27) But because of a failure to integrate epidemiology into water planning, the UN introduced a fatal outbreak to an already reeling nation, an outbreak that has potentially shifted from an epidemic to an endemic crisis. (28)

The recent cholera outbreak in Haiti illustrates only one way in which law can fail to integrate epidemiology. (29) Water is both a major avenue through which pathogens infect people, either directly by ingestion or indirectly by vectors like mosquitoes, and a major factor in the prevention and treatment of infectious diseases, including through improved hygiene and sanitation. (30) Currently, 2.3 billion people live without access to adequate clean water supplies and approximately 6000 children under the age of five die every day from waterborne diseases. (31) Officials throughout the Western Hemisphere are currently struggling to contain the growing Zika virus outbreak, spreading by mosquitoes and resulting in serious birth defects and death. (32) The deadly and ongoing water crisis in Flint, Michigan, has included a spike in Legionnaires' Disease. (33) The serious threat to human health posed by such diseases is likely to be aggravated by global climate change. (34) As such, water law should have a heightened emphasis on the prevention and mitigation of disease epidemics.

Nevertheless, water law largely concentrates on two agendas that are not directly related to disease prevention or mitigation--what I call the "Blue Agenda" and the "Green Agenda." The Blue Agenda is concerned with water quantity and drought resiliency. (35) In particular, the Blue Agenda deals with the allocation of water rights, the development of water delivery infrastructure, the sustainable management of water consumption, and the apportionment of water resources between people and jurisdictions. (36) The Green Agenda is concerned with water quality. (37) In particular, the Green Agenda deals with the prevention of water pollution, the protection of aquatic ecosystems, and the effective treatment of toxic or carcinogenic chemicals in drinking water. (38) While both of these agendas have important implications for human health, they may at times be pursued in ways that interfere with the prevention of epidemics or that aggravate disease outbreaks. (39)

For example, the Green Agenda may prioritize pollution prevention in a way that interferes with the expeditious application of pesticides to kill mosquito larvae to mitigate a malaria or West Nile virus outbreak. (40) The Blue Agenda may prioritize bringing a reservoir or irrigation infrastructure into a community, but in doing so, may also bring mosquito habitat closer to that community. (41) In such instances, the Green and Blue Agenda conflict with the aim to prevent and mitigate disease outbreaks, what I call the "Red Agenda." The Red Agenda deals with the control of habitats of disease vectors, like mosquitoes and snails, and the effective treatment of drinking water to address waterborne pathogens, like cholera or typhoid. (42) Additionally, the Red Agenda concentrates on the development of sanitation infrastructure to prevent diseases related to fecal contamination, like Cryptosporidium and E. coli, and improved access to water to prevent hygiene-related epidemics, like Ebola. (43) The three agendas overlap and are mutually reinforcing in important ways. However, water law practitioners and scholars, and water policymakers, tend to be focused on Green and Blue. The tri-colored framework seeks to make water law and policy more holistic and integrated by bringing more attention to the Red Agenda.

This Article is the first to introduce this tri-colored agenda framework of water law and policy, and argues for improved integration of the Red Agenda into water law in ways that are consistent with the Blue and Green Agendas. This Article proceeds in three Parts. Part I describes the Blue and Green Agendas in water law, and idendfies the Red Agenda as another critical aim of water law. Part I also identifies epidemiological concepts, including Bradley Classifications of diseases, which form essential trans-disciplinary bridges between law and epidemiology. (44) Part II explains the ways in which laws that were developed in pursuit of the Blue and Green Agenda conflict with or frustrate the aims of the Red Agenda in the implementation of water policy. (45)

Part III discusses how "silo thinking" and "attenuated decision-making" explain why the Blue and Green Agenda are...