A Canal Runs Through It

A federal district court in Nevada last week issued an interesting international environmental law decision that is worthy of note. The case is Consejo de Desarrollo Economico de Mexicali v. United States, 2006 WL 1875380, and is not available online. Quick facts: A canal known as the All-American Canal provides a route for the delivery of water from the Colorado River to the Imperial Valley in California and the Mexicali Valley in Mexico. This is the canal that is the lifeblood of southern California, with Los Angeles, San Diego and dozens of other cities depending on it for a significant part of their water supply.

The problem is the canal is not lined, so there is tremendous seepage resulting in significant loss of water. The United States has committed by treaty to deliver 1.5 million acre-feet of Colorado River water to Mexico. But California is using way too much of the Colorado River water. The proposed solution is to line the canal to prevent the unnecessary loss of water. So Congress passes a statute to that effect. Great idea, right! Apparently not.

Plaintiffs in Mexicali say that lining the canal will have an adverse environmental impact on Mexico. How so? Well, you see there’s a wetland in Mexico. In fact, it’s an All-American Canal seepage wetland. That’s right, the wetland didn’t exist before the canal was built and may not survive once the canal is properly lined. So the destruction of this seepage wetland is a sufficient reason to stop lining the canal. Far better to lose the extra Colorado River water and save the seepage wetland. Or so say the plaintiffs. But the court isn’t buying it. It finds that the National Environmental Protection Act (NEPA) doesn’t protect foreign harms, including Mexican seepage wetlands just south of the border. Statutes don’t normally have extraterritorial application and there’s nothing in NEPA to suggest Congress wanted to protect these foreign environmental harms.

Okay, that argument didn’t hold water, so the plaintiffs try for trans-boundary harm. Harms in Mexico will have trans-boundary harms in the United States. Like what? Well, the loss of seepage in Mexico will reduce crop importation to the United States, and thereby reduce trade from Mexico, and thereby increase illegal immigration because of the loss of farming jobs. That’s only a few degrees of separation between the loss of canal seepage and a massive influx of illegal immigration. No more water seepage means no more seepage wetland, which means no more wetland farmers, which means no more imported crops, which means too many illegal aliens. Ok. That works right? Wrong again. The court concluded that those arguments were just too speculative.

So the plaintiffs try one last argument: domestic harms. More precisely, drowning large American mammals. Yes, at various points along the canal the large mammals, a.k.a. American deer, are prone to drown if they don’t have an escape route. Makes sense right? And lining the canal will require eliminating the escape routes and that will have an adverse domestic impact on the deer population in the United States. Under the lining project the proposed solution in lieu of escape ridges was, I’m not making this up, to install mammal ladders. The ladders are scheduled to be 375 feet apart with hazard signs in English and Spanish (apparently not every canal-crossing large mammal is bilingual). But ladders won’t cut it, plaintiffs argue, and many more deer will drown if they are forced to climb canal ladders rather than traverse escape ridges. That argument works, right? No. Why not? Well, the problem is there are no large American mammals trying to cross the All American Canal! The court concluded that following a year of deer tracking and aerial surveillance there was no sign of deer in the area in question. Accordingly, the court found that given the absence of deer, the elimination of deer escape routes and the use of large mammalian ladders would not have an adverse impact on the non-existent deer.

In the end, the court concluded that lining the All-American Canal does not have the adverse environmental impact plaintiffs allege. Besides, to display undue concern for Mexican seepage wetlands and non-existent American large mammals rather than focusing on reclaiming millions more of the Colorado River would be akin to, well, throwing the baby out with the canal water.