Bloomberg Law
June 30, 2021, 7:14 PM

U.S. Weather Extremes a ‘Flashing Red Light’ for Water Lawyers

Bobby Magill
Bobby Magill

Extreme heat, wildfire, and drought roiling the U.S. and connected to climate change could mark a turning point in environmental regulation and courtroom battles, experts told Bloomberg Law.

“The extremes of 2020 and now 2021 are a flashing red light for water lawyers” as heat and drought desiccate the West and its rivers and reservoirs, said Thomas Jensen, a partner at Perkins Coie LLP in Washington.

His comments came shortly before President Joe Biden met with Western state governors Wednesday and announced a pay hike for federal firefighters.

“Climate change is driving the dangerous confluence of extreme heat and prolonged drought,” said Biden, who called the meeting to discuss ways to cope with the effects of climate change that are becoming more tangible.

All-time record-breaking temperatures soaring above 115 degrees scorched the Pacific Northwest this week amid the most extreme period of Western drought in more than 20 years, straining water supplies and creating conditions ripe for another volatile wildfire season.

Those extremes follow a February cold snap that buckled electric power and water systems across Texas, and the 2020 Western wildfires that incinerated more than 10 million acres.

‘Really Drastic Things’

This “chaos” fueled by climate change will bolster the Biden administration’s climate regulatory agenda, including constraining oil and gas development, and provide compelling data points to argue in favor of those efforts in court, said Pat Parenteau, senior counsel at the Vermont Law School’s Environmental Advocacy Clinic.

The current heat wave “is one significant event or data point in a trend of greater weather extremes that federal land managers, utilities and utility regulators, regional power marketing authorities, local land use planners, and others will have to address,” said Murray Feldman, a partner at Holland & Hart LLP in Boise, Ida.

The events are likely to bolster the administration’s efforts to curtail federal oil and gas leasing in the face of courts and states that are skeptical of the Interior Department’s leasing “pause,” Parenteau said.

William Trachman, a former Trump administration appointee and associate general counsel for the Mountain States Legal Foundation in Colorado, said he anticipates the Biden administration citing climate and weather extremes to make “catastrophic arguments” in favor of regulating fossil fuels.

“I expect the administration to find a new excuse, whether that’s weather events or climate change, to do really drastic things,” Trachman said.

Parenteau said he expects the administration to re-start the oil and gas leasing program with a new base price for leasing—currently $2 per acre—that factors in the social cost of carbon and increases royalty costs for oil and gas operators.

“You’re going to see a change in the rules on leasing that’s going to result in a refusal to issue any more leases,” Parenteau said. “You can count on it.”

Environmental Regulation

Recent climate extremes could translate to new rules implementing the National Environmental Policy Act, which requires federal agencies to take a hard look at the environmental consequences of their actions, said Brooke Marcus Wahlberg, a partner at Nossaman LLP in Austin, Texas.

The Council on Environmental Quality’s expected revisions to NEPA and Endangered Species Act regulations are now more likely to include “heavy handed instruction” to account for the impacts of climate change, she said.

Droughts, wildfires, and floods underscore the urgency of climate change and accounting for it in federal decision-making, a CEQ spokeswoman said.

“If there’s more rigid instruction for how agencies should look at climate change when considering a project, then there’s a little bit more of a bright-line test for folks to challenge it if that instruction isn’t met,” said Wahlberg. “I think companies will feel heightened pressure to plan for a rare event in ways that weren’t there before—catastrophic wildfire planning, weather event resilience.”

‘Great Time’ for Water Lawyers

The Environmental Protection Agency said in a statement that extreme heat affects public water systems and water supplies, but it’s enforcing water safety regulations while pointing water systems and managers to possible federal financing to upgrade systems to make them more resilient.

“Because climate stress is often experienced as water stress, the agency is prioritizing tools and resources to support climate resiliency across the water sector,” the EPA said in a statement.

But Jensen said that the legal system supporting water availability isn’t equipped to withstand the current drought.

“None of the traditional approaches to allocation of shortages, including the ‘first-in-time, first-in-right’ prior appropriation system, truly anticipate the bottom falling out of available water supplies for the long term,” he said.

Western water law is based on the idea that whoever was first in line to use water from a given source gets to keep the right to use it from then on. Users who came along later have to give up their water as rivers and reservoirs go dry, while those first in line can keep consuming water.

As the heat and drought intensify, “lots of billable hours are going to go into trying to keep clients’ asserted water rights from evaporating,” Jensen said. “It’s a great time to be a water lawyer.”

With assistance from Stephen Lee.

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