Whether outdated by centuries, generations or just decades, American environmental laws are about to crash into some major changes in the near future.
"Water law is an antiquated subject," Sarah Bates of the Center for Natural Resources and Environmental Policy told a roomful of Society of Environmental Journalists conference attendees on Wednesday. "Sometimes, we think it's fossilized."
Bates was part of an SEJ seminar on environmental law that the nationwide organization included in its annual conference, held in Missoula this year. Roughly 600 journalists, academics and government officials are attending the five-day gathering.
In the case of water use, Bates said many of our laws date back to the gold- and land-rush days of the 19th century. Then, the idea of "first in time, first in right" was an entrepreneurial strategy - a way to lock up advantages for mining camps or ranches or farms.
They didn't consider the needs of ecosystems, river fish or urban drinking water supplies. Nor did they acknowledge some other examples that existed at the same time, such as Hispanic or Mormon community water-sharing systems.
But the water supply that inspired those rules has changed. Whether it's called global warming or severe and sustained drought, agricultural water users know they can't rely on the amounts of water to which they have rights.
"They're not getting together and arguing about what's causing this," Bates said. "They're looking at what's happening and what's their risk."
The companies that provide insurance and financing for those water projects are also trying to see beyond the old-fashioned water laws to adapt to the new economic realities, she said. That could be educational efforts that make a Las Vegas lawn-grower at the tail-end of a watershed aware of the struggles a Colorado biologist has keeping beaver dams full at the watershed's source. Or research that determines how to draw enough irrigation water to grow crops without draining river systems.
Environmental justice laws face a similar sea change, said U.S. Environmental Protection Agency senior adviser Lisa Garcia. Many of the nation's landmark policies on clean air and water date from the 1970s. But the idea of using those laws to promote justice as well as health is just developing.
That includes things like reversing a practice of placing dangerous or polluting facilities in places where the residents are too poor or marginalized to resist, Garcia said. For too long, state and federal overseers have looked at each project in isolation, inspecting what effect it might have on a community. They haven't looked at what "one more" such facility might do to a place that already has become home to other polluters.
In the energy world, change happens even faster. Attorney and energy analyst Jason Johns of the Portland, Ore., firm Stoel Rives LLC said energy transmission policies set in the 1990s are already colliding with renewable energy demands they aren't designed to handle. For example, a growing push for more wind power is blocked by policies that discourage investment in new power transmission lines. And without the transmission lines, few are willing to invest in wind power.
Johns said finding ways for the government to reduce the risk of power investments would break that gridlock. But that involves revisiting many of the laws and policies that have kept energy companies working on individual, localized scales instead of coordinated, regional ones.
Ironically, all three speakers agreed the present U.S. economic downturn might be the best thing to modernize all these environmental laws. The pressure to feed an overheated bubble economy has kept many sectors from considering what they really need.
"The economic downturn is an opportunity to plan," Garcia said. "We can take this time to say what's a sustainable use of resources."
Reporter Rob Chaney can be reached at 523-5382 or at rchaney