Environmental flows in the UK: ecosystems vs. humans

(BY HUGO)

An article from Louise Gray in the Telegraph warns that one in three rivers in England and Wales is in danger of dying out due to demand for drinking water. According to the article:

«The Environment Agency estimate that river flows in some areas could be reduced by 80 per cent by 2050 and ecosystems in a third of river catchments are already in danger of drying out in a hot summer.»

This is interesting from a legal perspective because of a heavy trend noticeable in water allocation frameworks where water uses must be authorised by an administrative agency. Under such regimes, it is common to find that the criteria guiding the administrative discretionary power to authorise a water use must prioritise public health and access to drinking water. For example, the recent Act 21, 2009 (Québec) provides that:

19 (...) 31.76. The Minister’s power of authorization under this subdivision must be exercised so as to ensure the protection of water resources, particularly by fostering sustainable, equitable and efficient management of the resources in light of the precautionary principle and the effects of climate change.

In addition, every decision in the exercise of the Minister’s power of authorization must give priority to satisfying public health, sanitation, civil protection and drinking water supply needs. Every such decision must also aim to reconcile

(1) the protection needs of aquatic ecosystems; and

(2) the needs of agriculture, aquaculture, industry, energy production and other human activities, including recreation and tourism. (Emphasis added)

This section is not in force yet, and it is not possible to determine the result of its implementation as well as the tribunals' interpretation of it.

However, a preliminary reading of §2 of article 31.76 appears to establish a priority in favour of human uses for drinking water. This is entirely consistent with the political push for the materialisation of a human right to water throughout the world.

However, as seen from the UK situation, human water uses for drinking purposes might destroy ecosystems. This raises many questions:

1 - Must human water uses for drinking purposes be prioritised in all situations? Even accepting that they must always be prioritised, are such human uses sustainable without a functioning ecosystem?

2 - How is it possible to reconcile the human right to water for domestic usages and the emerging human right to a clean, or healthy (etc) environment? In developing countries where a majority of poor people is disenfranchised and living directly off ecosystem services, is it not appropriate to prioritise the right to a healthy environment to ensure access to water in order to preserve the natural purification of water function performed by the environment?

It seems appropriate to finish this post with a quote from Professor John Merrills, «Environmental Rights» in Daniel Bodansky, Jutta Brunnée & Ellen Hey, eds., International Environmental Law (Oxford: Oxford University Press, 2007) 663 at 666-668:

«Rights and preferences tend to be confused - sometimes it must be said deliberately - because when there are conflicting demands, whether in relation to jam tarts or the environment, having the desired objective recognized as a right is a crucial means of establishing priorities. When preference confronts preference the result in moral terms is a stand-off. When right confronts preference, on the other hand, the holder of the right has a trump card with which to pre-empt preferences and other non-moral considerations. What is true here of moral rights is true a fortiori when such rights are translated into law.

[...] If rights are a good way of ensuring that something is taken seriously, designating an entitlement a human right is even better, on account of the status of this class of rights in legal and moral discourse. [...I]f a preference can be turned into a right, the position of the new rights-holder is much strengthened, especially in comparison with rivals whose preferences have not been so transformed.

There may also be other effects, however. Suppose that instead of being confronted with a mere preference, our rights-holder is confronted with another rights-holder. We are now back to the same position of preference being confronted with preference, with the important difference that, as Lomasky has explained, since both parties are armed with rights, accommodation through compromise may now be much less appealing. The tendency for disputes to become more acrimonious when rights are at stake can also be seen elsewhere. A rights-holder confronted by a rival with a mere preference will expect to get his way, and, although the purpose of rights is to ordain such priorities, the natural tendency to 'stand on our rights' cannot be said to do much to promote social harmony or, in some cases, social welfare. When there are only competing preferences, we can try to maximize social welfare by utilizing a cost-benefit analysis. However, once a preference is converted into a right, trade-offs can no longer be considered in the same way. Moreover, a proliferation of rights and rights holders not only multiplies the opportunities for rights-holders to come into conflict with each other, but also generates a tension between rights as a basis for actions and other moral considerations.» (Reference omitted)