Hydraulic fracturing in Québec

(BY HUGO)

The Environmental Working Group recently released a report on hydraulic fracturing in the USA concluding that extraction activities using this technique threaten groundwater quality and drinking water sources. According to EWG, fracking should be subject to regulation under the Safe Drinking Water Act.

Yesterday, Louis-Gilles Francoeur reported in Le Devoir (in French - earlier article here) that the Québec Ministry for Natural Resources recently issued 580 drilling permits to extract shale gas in the St. Lawrence River Valley. The official opposition in the Québec National Assembly suggests that the government is attempting to exclude the autorisations from the standard environmental impact assessment process.

In an academic context, Water Wiki raises legal questions stemming from fracking operations.

The Human Rights to Water and Sanitation and Private Sector Participation

(BY HUGO)

The right(s) to water and sanitation generate(s) interest in international development and water law.

Today, the UN independent expert on human rights and access to water and sanitation, Ms Catarina de Albuquerque, holds a public consultation in Geneva on private sector participation in the provision of water and sanitation from a humna rights perspective.

The independent expert does not tackle the issue of human rights obligations imposed on transnational corporations (TNCs). This appears justified because states bear the brunt of the obligations with respect to human rights in international public law, and because TNCs remain marginal actors among a variety of other small scale private providers.

This is sensible: regulation of natural monopoly by the state in water services is recommended as a cure to private sector excesses and potential violations of human rights.

However, it also leads to the overburdenning of developping states with very limited capacity. It is doubtfull whether developping states can devise, monitor and enforce a sophisticated reglatory system for drinking water quality protection while a contry as rich as the USA is failing in this task as de facto demonstrated by the Toxic Waters Series from the NYT.

Moreover, neglect of the TNCs as significant actors for the respect of human rights leads to neglecting new emerging normative frameworks such as the OECD Guidelines for Multinational Enterprises (in particular, see p.14, General Policies, §2) that could improve human rights compliance by non-state actors (on the positive effect of the Guidelines, see Larry Backer, «Rights and Accountability in Developement...», in particular p.283 & ff.)

The independent expert also takes particular care to state that human rights are neutral to economic models in general and models of service provision more specifically (for example, see UN HCHR §52). At face value, this is in line with orthodox human rights theory.

However, this apparent neutrality is tested when the independent expert declares that challenges to access to water and sanitation include lack of transparent and democratic decision making, power asymmetries in negociations processes between TNCs and host states, unaffordable or unavailable services for the poorest...

All these challenges imply value judgements at the economic and political levels. In the end, human rights are not neutral, and to pretend so might not be the most adequate position in the long term. Human rights need their substantive values to perform their reforming function.

Finally, the independent expert shows a clear departure from traditional international human rights law theory by orienting the discussion towards standards setting with respect to water quality, regularity of supply, safety of sanitation facilities and affordability of services.

This is an essential step towards concrete objectives, effective monitoring, and possible attainment of the objectives. However, ex ante standard setting for human rights is risky.

For example, the independent expert refers to the World Health Organisation Guidelines as standards for water quality. These guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

Through this approach, human rights become associated to regulatory frameworks that aim at saving a majority by sacrificing a minority, something that could arguably be considered anathema to a more traditional vision of human rights.

In summary, building an entire water resources management regime on human rights appears unworkable and leads to inherent contradictions. The international development community should focus more on human rights when they perform their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.

Rainwater harvesting in LA

(BY HUGO)

As discussed in a recent post, rainwater harvesting is indeed gathering momentum in Western USA.

The Legal Planet Blog has a post on this water supply augmentation method.

Basically, urban rainwater harvesting transforms water proof city areas (paved roads, roofed perimeters,...) into small artificial watersheds superimposed on natural watersheds. Rainwater that runs off in the artificial watershed ends up in a cistern and gets disconnected from the environment.

Rainwater harvesting is certinaly a good idea and an improvement on wasting water through unitary sewers. However, water is a limited resource: there is only a limited volume of it in one place at one point in time. The implementation of large scale rainwater harvesting should be coupled with residual environmental flow protection (as in Australia) to avoid further water deprivation for environmental uses.

Given the American penchant for big absolute solutions, it would seem adequate to remain extra cautious about implementing rainwater harvesting on a huge scale before the safeguards are there to protect environmental water uses. Is there legal environmental flow protection in California?

Asian Carp litigation: preliminary injuction dismissed

(BY HUGO)

The US Supreme Court dismissed Michigan's motion for preliminary injunction today (see previous posts and Dan Egan's article).

Hearing on the merits will pake place on February 19, with judgement rendered possibly not before a few months.

In the meantime, it is reported that DNA sampling taken on December 8th would confirm the presence of Asian Carp in Lake Michigan...

Is this the demonstration that article 20 of the UN 1997 Convention on non-navigational uses of international watercourses is not customary international law?

Rainwater harvesting as a cheap option for water management

(BY HUGO)

One quote from an article about extreme drought in the LA Times attracts the attention on a water resources management method that is underused (exept in India?) but fast gaining ground and attracting increased inerest:

«Griggs cited rainwater harvesting and demand management as the least expansive options for increasing water supplies. Pipelines and dams were among the most expansive options he said.

"Urban storm water is a large untapped source of water generated close to where it is needed. ...In most Australian cities, as much water falls on that city as the city needs", Griggs said.

In Queensland, Australia's fastest-growing state, with 2.7 million residents, about 20% of the population has installed rain-catchement tanks since 2006, when the area received just 7.4% of its average annual inflow to the major dam that supplies it. In 2007, that flow had declined to just 4%.»

In these 3 paragraphs, it's possible to find all the reasons that will make rainwater harvesting a very important component of all water management regimes in the near future: 1) supply side oriented (allowing overall water use increase to some degree); 2) cheapest; 3) locally managed.

In the last few years, rainwater harvesting has already attracted interest in US Western states and Texas. Some German cities are metering residential storm runnoffs to encourage rain harvesting and domestic use (toilet flushes, laundry...). New Building regulations may force rainwater harvesting in large building project in the South of England...

In short, rainwater harvesting will become a big issue in water law and management, especially since it may result in conflicts with prior downstram users and environmental uses.

Water Energy regulation by international law in offshore operations

(BY HUGO)

This link is to a conference held in Edinburgh on the global challenges of effective water management in the oil field.

The role of the regulator was stressed in reservoir preparation to maximize economic recovery factors and in compliance with environmental laws.

With respect to the regulation of marine discharges of produced water, Michael Hannan of the UK department of Energy and Climate Change «encouraged operators to keep abreast of future risk-based discharges limits being proposed by OSPAR - the Northeast Atlantic Convention that sets limits for marine discharges.»

This appears to constitute another example of regulation translating environmental externality from water use into internalised business costs for energy operators.

The CEPMLP could be interested in this.

Article on Water Energy Nexus

(BY HUGO)

A recent article by Professors Robert Abrams and Noah Hall to be published in the Natural Resources Journal and available online here, gives an overview of issues related to the Water Energy Nexus in the USA.

Whereas most peer-reviewed articles in law on the water energy nexus up to now seem to examine only particular issues such as desalination or coal bed methane extraction, this article provides a very thorough study of (and an excellent source of references on) most of the issues related to increased competion for water resources in a context where energy demand increase requires more water as a productive input.

Particularly interesting from a legal perspective is the example of oil shale exploitation in the Colorado basin (p.40-45).

It also provides reflections on the emerging concept of water security (see p.16-29) which ties to current research by Professors Patricia Wouters and Sergueï Vinogradov as well as Bjorn-Oliver Magsig to be published in the Yearbook of International Environmental Law.

Ontario's brief in the Asian Carp dispute

(BY HUGO)

Ontario has filed a brief before the US Supreme Court in the dispute regarding the closing of the Chicago Sanitary and Ship Canal to prevent the invasion of the Great Lakes and St-Lawrence River Basin.

Ontario supports Michigan's motion and notably argues that:

- The introduction of the Asian Carp to the Great Lakes poses the threat of immediate and irreparable environmental harm;

- Damages suffered as a result of an Asian Carp invasion would be crippling to Ontario's fishing economy;

- Prevention of the invasion is preferable and more effective than after the fact erradication and control;

- The ecosystem approach to Great Lakes management must be consensual and collaborative, and involve Canadian authorities, as shown by the transnational legal framework currently in place.

Of note is the fact that all parties appear to have agreed to Ontario's intervention as Amicus Curiae to the Court.

Asian invasion in the North American Great Lakes

(BY HUGO)

The possible invasion of the Great Lakes and St-Lawrence River Basin by the Asian Carp has re-ignited a dispute between riparian American States.

This invasive species artificially introduced in Southern U.S.A. for fish farming purposes has colonised the Mississippi and its tributaries since the 1970s.

The Asian Carp is now in a position to invade the Great Lakes basin through the Chicago Sanitary and Ship Canal piercing the continental divide. Recently, DNA traces of the Carp have been found beyond the Canal's electrified barriers blocking access to Lake Michigan.

To prevent colonisation of the Lakes by the Carp, which would wreak havock on their ecosystems, the State of Michigan recently filed a petition to the Supreme Court of the United-States in order to modify the decree governing the Chicago Canal water withdrawal as per Wisconsin et al. v. Illinois et al.

Michigan seeks an order from the Supreme Court to close the locks on the Chicago Canal and ultimatly to modify the means by which water is withdrawn from the Lakes in order to prevent the Asian Carp invasion.

This has generated intense media coverage in the last month (New York Times - ABC News - Great Lakes United). A comprehensive investigation from Dan Egan providing background to the issue was published in 2006 by the Milwaukee Wisconsin Journal Sentinel.

Excellent legal coverage is provided here by Professor Noah Hall, a promient North American water law expert involved as counsel in the dispute.

One issue raised by this dispute pertains to the marginalisation of the two Canadian provinces in the Great Lakes St-Lawrence River Basin, Ontario and Québec. Because the conflict will be settled in the U.S.A. before the Supreme Court in the context of a pre-existing inter-state dispute to which the provinces are not party, the possibility for the Provinces' meaningful involvement in a solution to the problem is remote.

This sheds another light on the consensual nature of the framework for management of the Great Lakes that materialised further to the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement.

According to article 207, §10 & 11 of the Agreement as well as Section 4.14, §1 & 2 of the 2008 Compact, some current water withdrawals such as the one from the Chicago Canal are still governed by the terms of the United States Supreme Court Decree in Wisconsin et al. v. Illinois et al.

Under these paragraphs, when an application is made to the Supreme Court, States shall seek formal input and use best efforts to facilitate participation of the Provinces to the proceedings, or at least restrain from unreasonably impeding their participation.

An interesting question would be to study the potential use of the recourse provided under Section 7.3 of the Compact by one of the Provinces.