Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources

Abstract

Climate change regulation has proven a fertile ground for debates on federalism. To date, however, these debates have concentrated on climate change mitigation and the “proper” roles of the states and the federal government in regulating to reduce greenhouse gas emissions.

This Article posits that climate change adaptation also has federalism implications for environmental regulation and natural resources management. In particular, the federal and state governments have always asserted overlapping – and sometimes conflicting – interests in water, and, as a result, water regulation and management have always been subject to an uneasy federalism balancing. For example, water allocation and water rights are generally considered issues of state law – but if the water crosses state lines, or state regulation affects navigation, the federal government asserts a superior and preemptive role. In between these endpoints, the federal Clean Water Act adopted an intricately structured cooperative federalism that imposes certain minimum federal requirements for water quality but allows states to choose water quality goals, while aquatic species protection remains a largely unstructured mishmash of overlapping state and federal interests and authorities.

In light of existing shortages of water and the imminent need to adapt to climate change impacts on water resources, reconsidering the proper federalism balance in water resources management is inevitable, as several congressional bills attest. Specifically, the traditional assumption of state superiority over matters of water allocation has come into question in light of the intimate connections between water availability and national energy policy, national food security, and interstate conflicts. This Article explores the potential for climate change and the increasing need to adapt to its impacts on water to alter traditional notions of water federalism, concluding that an increased federal role in water management is likely but could take many forms, some more attune to the multiple interests in water than others.

Keywords: climate change, adaptation, federalism, water law, energy policy, food security, water