Featured image: The 2015 Gold King Mine waste water spill in the Animas River, in southwest Colorado. The Animas is a tributary to the Colorado River.
Editor’s note: The first Rights of Nature lawsuit in the US was filed on September 25, 2017, in Denver, Colorado. The full text of the complaint can be found here.
“Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.” Supreme Court Justice William O. Douglas, Sierra Club v. Morton (1972)
Denver, Colorado–In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a “person,” with rights of its own to exist and flourish. The lawsuit, filed against the Governor of Colorado, seeks a recognition that the State of Colorado can be held liable for violating those rights held by the River.
The Plaintiff in the lawsuit is the Colorado River itself, with the organization Deep Green Resistance – an international organization committed to protecting the planet through direct action – filing as a “next friend” on behalf of the River. The River and the organization are represented in the lawsuit by Jason Flores Williams, a noted civil rights lawyer and lead attorney in a recent class-action case filed on behalf of Denver’s homeless population.
While this is the first action brought in the United States which seeks such recognition for an ecosystem, such actions and laws are becoming more common in other countries. In 2008, the country of Ecuador adopted the world’s first national constitution which recognized rights for ecosystems and nature; over three dozen U.S. municipalities, including the City of Pittsburgh, have adopted similar laws; and courts in India and Colombia have recently recognized that rivers, glaciers, and other ecosystems may be treated as “persons” under those legal systems.
Serving as an advisor to the lawsuit is the Community Environmental Legal Defense Fund (CELDF), a nonprofit public interest law firm which has previously assisted U.S. municipalities and the Ecuadorian government to codify legally enforceable rights for ecosystems and nature into law.
Attorney Flores-Williams explained that “current environmental law is simply incapable of stopping the widescale environmental destruction that we’re experiencing. We’re bringing this lawsuit to even the odds – corporations today claim rights and powers that routinely overwhelm the efforts of people to protect the environment. Our judicial system recognizes corporations as “persons,” so why shouldn’t it recognize the natural systems upon which we all depend as having rights as well? I believe that future generations will look back at this lawsuit as the first wave of a series of efforts to free nature and our communities from a system of law which currently guarantees their destruction.”
Deanna Meyer, a member of Deep Green Resistance and one of the “next friends” in the lawsuit, affirmed Flores-Williams’ sentiments, declaring that “without the recognition that the Colorado River possesses certain rights of its own, it will always be subject to widescale exploitation without any real consequences. I’m proud to stand with the other “next friends” in this lawsuit to enforce and defend the rights of the Colorado, and we’re calling on groups across the country to do the same to protect the last remaining wild places in this country and beyond.”
The lawsuit seeks recognition by the Court that the Colorado River Ecosystem possesses the rights to exist, flourish, regenerate, and restoration, and to recognize that the State of Colorado may be held liable for violating those rights in a future action. The complaint will be filed in the US District Court of Colorado on Tuesday.
Featured image: Lake Powell, photographed April 12, 2017. The white ‘bathtub ring’ at the cliff base indicates how much higher the lake reached at its peak, nearly 100 feet above the current level. Patti Weeks
The nation’s two largest reservoirs, Lake Mead on the Arizona/Nevada border and Lake Powell on the Arizona/Utah border, were brim full in the year 2000. Four short years later, they had lost enough water to supply California its legally apportioned share of Colorado River water for more than five years. Now, 17 years later, they still have not recovered.
This ongoing, unprecedented event threatens water supplies to Los Angeles, San Diego, Phoenix, Tucson, Denver, Salt Lake City, Albuquerque and some of the most productive agricultural lands anywhere in the world. It is critical to understand what is causing it so water managers can make realistic water use and conservation plans.
While overuse has played a part, a significant portion of the reservoir decline is due to an ongoing drought, which started in 2000 and has led to substantial reductions in river flows. Most droughts are caused by a lack of precipitation. However, our published research shows that about one-third of the flow decline was likely due to higher temperatures in the Colorado River’s Upper Basin, which result from climate change.
This distinction matters because climate change is causing long-term warming that will continue for centuries. As the current “hot drought” shows, climate change-induced warming has the potential to make all droughts more serious, turning what would have been modest droughts into severe ones, and severe ones into unprecedented ones.
The Colorado River is about 1,400 miles long and flows through seven U.S. states and into Mexico. The Upper Colorado River Basin supplies approximately 90 percent of the water for the entire basin. It originates as rain and snow in the Rocky and Wasatch mountains. USGS
How climate change reduces river flow
In our study, we found the period from 2000 to 2014 is the worst 15-year drought since 1906, when official flow measurements began. During these years, annual flows in the Colorado River averaged 19 percent below the 20th-century average.
During a similar 15-year drought in the 1950s, annual flows declined by 18 percent. But during that drought, the region was drier: rainfall decreased by about 6 percent, compared to 4.5 percent between 2000 and 2014. Why, then, is the recent drought the most severe on record?
The answer is simple: higher temperatures. From 2000 to 2014, temperatures in the Upper Basin, where most of the runoff that feeds the Colorado River is produced, were 1.6 degrees Fahrenheit higher than the 20th-century average. This is why we call this event a hot drought. High temperatures continued in 2015 and 2016, as did less-than-average flows. Runoff in 2017 is expected to be above average, but this will only modestly improve reservoir volumes.
High temperatures affect river levels in many ways. Coupled with earlier snow melt, they lead to a longer growing season, which means more days of water demand from plants. Higher temperatures also increase daily plant water use and evaporation from water bodies and soils. In sum, as it warms, the atmosphere draws more water, up to 4 percent more per degree Fahrenheit from all available sources, so less water flows into the river. These findings also apply to all semi-arid rivers in the American Southwest, especially the Rio Grande.
The combined contents of the nation’s two largest reservoirs, Lake Mead and Lake Powell, since their initial fillings. The large decline since 2000 is shaded brown for 2000-2014, our 15-year study period, and pink for the continuing drought in 2015-2016. The loss was significantly influenced by record-setting temperatures, unlike a similar 15-year drought in the 1950s which was driven by a lack of precipitation. Bradley Udall, Author provided
A hotter, drier future
Knowing the relationship between warming and river flow, we can project how the Colorado will be affected by future climate change. Temperature projections from climate models are robust scientific findings based on well-tested physics. In the Colorado River Basin, temperatures are projected to warm by 5°F, compared to the 20th-century average, by midcentury in scenarios that assume either modest or high greenhouse gas emissions. By the end of this century, the region would be 9.5°F warmer if global greenhouse gas emissions are not reduced.
Using simple but strong relationships derived from hydrology models, which were buttressed by observations, we and our colleagues calculated how river flows are affected by higher temperatures. We found that Colorado River flows decline by about 4 percent per degree Fahrenheit increase, which is roughly the same amount as the increased atmospheric water vapor holding capacity discussed above. Thus, warming could reduce water flow in the Colorado by 20 percent or more below the 20th-century average by midcentury, and by as much as 40 percent by the end of the century. Emission reductions could ease the magnitude of warming by 2100 from 9.5°F to 6.5°F, which would reduce river flow by approximately 25 percent.
Large precipitation increases could counteract the declines that these all-but-certain future temperature increases will cause. But for that to happen, precipitation would have to increase by an average of 8 percent at midcentury and 15 percent by 2100.
The American Canal carries water from the Colorado River to farms in California’s Imperial Valley. Adam Dubrowa, FEMA/Wikipedia
On a year-in, year-out basis, these large increases would be substantial. The largest decade-long increases in precipitation in the 20th century were 8 percent. When such an increase occurred over 10 years in the Colorado Basin in the 1980s, it caused large-scale flooding that threatened the structural stability of Glen Canyon Dam, due to a spillway failure not unlike the recent collapse at California’s Oroville Dam.
For several reasons, we think these large precipitation increases will not occur. The Colorado River Basin and other areas around the globe at essentially the same latitudes, such as the Mediterranean region and areas of Chile, South Africa and Australia, are especially at risk for drying because they lie immediately poleward of the planet’s major deserts. These deserts are projected to stretch polewards as the climate warms. In the Colorado River basin, dry areas to the south are expected to encroach on some of the basin’s most productive snow and runoff areas.
Moreover, climate models do not agree on whether future precipitation in the Colorado Basin will increase or decrease, let alone by how much. Rain gauge measurements indicate that there has not been any significant long-term change in precipitation in the Upper Basin of the Colorado since 1896, which makes substantial increases in the future even more doubtful.
Megadroughts, which last anywhere from 20 to 50 years or more, provide yet another reason to avoid putting too much faith in precipitation increases. We know from tree-ring studies going back to A.D. 800 that megadroughts have occurred previously in the basin.
March of 2017 was the warmest March in Colorado history, with temperatures a stunning 8.8°F above normal. Snowpack and expected runoff declined substantially in the face of this record warmth. Clearly, climate change in the Colorado River Basin is here, it is serious and it requires multiple responses.
It takes years to implement new water agreements, so states, cities and major water users should start to plan now for significant temperature-induced flow declines. With the Southwest’s ample renewable energy resources and low costs for producing solar power, we can also lead the way in reducing greenhouse gas emissions, inducing other regions to do the same. Failing to act on climate change means accepting the very high risk that the Colorado River Basin will continue to dry up into the future.
Featured image: Afro-Colombian communities along the Patia River plundered by corporate privatization of water sources.
by Mary Louisa Cappelli
Colombia’s infrastructure development projects have led to privatized water grabbing and the marginalization and displacement of many indigenous and Afro-descendent communities living along the Patia River Corridor. Ingeneria de Vias SA (VIAS SA), a private civil engineering company specializing in the execution of urban infrastructure works and water supply networks appears to be directly responsible for a visible pattern of environmental racism in which sand and gravel mining has led to the critical deterioration of wetlands, ecosystems, and, more importantly sustainable livelihoods, along the Patia River.
According to local Galindez spokesman from the Pan Corridor Community Council, “VIAS SA originally received a permit in 2005, but failed to renew it when it expired in 2009.” Since 2009, trucks have been operating nonstop from 4 a.m. to 6 p.m. hauling away 14 square meters of material daily without governmental authorization. For 11 years, VIAS SA has been excavating sand and gravel to be used in the construction of roads and buildings. The excavation of the river has resulted in deterioration of water resources and bed degradation leading to the depletion of water tables, and the devastation of aquatic and riparian watersheds once inhabited by fish, waterfowl and other local species. Galindez spokesman explains, “I was born and I was raised here, and we have never seen this river look like a stream. And they want to continue drying it, just by extracting all these materials, they want to dry the river.”
The river has been a vital source of life for the socio-economic reproduction and traditional livelihoods of Afro-descendent communities. When neoliberal development projects emerged in the mid 1990s along with the sale of Empresa de Energía del Pacífico (ESPA) to an international consortium of Houston Industries, the needs of the local community were subordinated to privatized interests, which instigated unequal power relations and triggered an observable pattern of cultural disruption.
134 families from Galindez, 60 families from Palo Verde, 120 families from El Pilon and 15 families from Hamaca were dependent on the river for their sustainable livelihoods. In the name of development, habitats have been destroyed and families now suffer from food and water insecurity. According to Galindez Spokesman, “In the past, people didn’t have to buy plantains, corn, cassava, and fruits like papaya – but now because we can’t grow our food anymore, we have to work out how to get the money to buy the things we traditionally grew.”
While the Regional Autonomous Corporation of Cauca is supposed to give approval for development projects or projects with environmental impact, community members allege that Ingeneria de Vias SA has been operating outside Article 70, which states: “The State has the obligation to promote and foster access to the culture of all Colombians equally by means of permanent education and scientific, technical, artistic, and professional instruction at all stages of the process of creating the national identity;” Article 72, which states: “Ethnic groups settled in areas of archeological treasures have special rights over that cultural heritage, which rights must be regulated by law;” and Article 246, which provides that “the authorities of the indigenous peoples may exercise jurisdictional functions within their territories, in accordance with their own standards and procedures, provided they do not conflict with the Constitution and laws of the Republic.”
According to the community, they were not consulted about the excavation project and were denied a political voice about the development projects taking place on their ancestral rivers. While some community members are afraid to speak up for fear of physical reprisal, other community members strongly allege that the day-to-day excavation is being protected by paramilitaries who ensure a daily excavation quota. Justicia y Paz spokesperson observed the importance of considering the “role of the police and the role of the army” in the excavation processes. “Because a lot of the money that funds these institutions come from the United States. And in many cases the army and the police have violated the rights of the communities.”
The racialized dispossession of Afro-descendent peoples by privatized water grabbing projects testifies to the privileging of political and international elites, which has led to a trajectory of displacement, deterritorialization, and physical vulnerability. This type of racialized dispossession must be addressed in Colombia’s Post Accords Peace Process and most certainly taken into consideration in the US Congress’s final decision on Obama’s $450 million Peace Colombia Plan— a hefty financial package to support socio-political and environmental justice in the region.
In the words of Afro-Colombian spokesman, he wants the United States to be aware of the water grabbing, as he would like “to get back to a life of dignity.”
In the early morning hours before daybreak on May 2 in the fire-impacted conifer forest near Seiad Valley in the Klamath River watershed, 27 people including Tribal youth, river advocates and forest activists blocked the road leading to the Klamath National Forest’s Westside salvage logging project.
Demonstrators held banners that read ‘Karuk Land: Karuk Plan,’ recited call and response chants, and testified to the timber sales’ impact on ailing salmon populations. Work was delayed for approximately four hours, according to a news release from the river advocates.
The protesters said the Westside Salvage Logging Project would clear cut more than 5,700 acres on steep slopes above Klamath River tributaries and along 320 miles of roads within Klamath National Forest. Post-fire logging and hauling began in late April, before legal claims brought forth by a lawsuit led by the Karuk Tribe could be considered in court.
“The Forest Service should follow the Karuk Plan on Karuk Land. Traditional knowledge of fire helps everything stay in balance because it’s all intertwined,” said Dania Rose Colegrove of the Klamath Justice Coalition. “When you destroy the forests, you destroy the rivers.”
The protesters said the Westside plan, unlike the Karuk Alternative, calls for clear cut logging on steep slopes right above several of the Klamath River’s most important salmon-bearing streams, at a time when returning salmon numbers are reaching record lows.
Members of local Tribal youth councils who participated in the protest see Westside salvage logging as a threat to their future.
“Today I showed up and stood up for what is right for future generations,” said Lacey Jackson, a 16-year old Hoopa Tribal Youth Council member. “My cultural and traditional livelihood is being threatened, and the way they are going about this logging is a big part of that. I will continue to stand up for me, my people and future generations.”
River advocates say the Forest Service plan to clear-cut thousands of acres above the Klamath River disregards the reasonable Karuk Alternative and hurts at-risk salmon and river communities. They believe a healthy Klamath River requires sensible forest restoration that addresses the needs of both fish and people, like that laid out in the Karuk plan.
Federal and state fisheries agency scientists estimate that there are only approximately 142,200 Klamath River fall-run Chinook salmon in the ocean this year, based on the returns of two-year-old salmon, called “jacks” and “jills.” The salmon from the Klamath and Sacramento River make up the majority of salmon taken in California’s ocean and inland fisheries.
The low numbers of Klamath and Trinity River fish expected to return to the river and tributaries this year will result in more restricted seasons for both the recreational and commercial fisheries on the ocean and recreational and Tribal fisheries on the rivers this season.
During a meeting on Klamath dam removal in Sacramento in March, Thomas Wilson, a member of the Yurok Tribal Council and owner of Spey-Gee Point Guide Service, described the dire situation that the salmon fishery is in this year.
“This season will be devastating for fishermen and people on the river. Usually we get around 12,000 fish for subsistence on the river and what’s left goes to the commercial fishery. This year our entire Tribal quota is only about 5,900 fish,” he explained.
“The people are praying that the science predicting the low numbers is wrong. If we don’t protect the fish now, it will hurt us down the road. As Yuroks and natives, we are conservationists. We want make sure enough to keep seed for the all of the resources for future generations,” Wilson said.
The last thing that the watershed needs, at a time when the fishery is in crisis, is a Forest Service-approved clear cutting plan that further threatens salmon and steelhead habitat.
In the time after, the buffalo come home. At first only a few, shaking snow off their shoulders as they pass from mountain to plain. Big bulls sweep away snowpack from the soft grass beneath; big cows attend to and protect their young. The young themselves delight, like the young everywhere, in the newness of everything they see, smell, taste, touch, and feel.
Wolves follow the buffalo, as do mallards, gadwalls, blue-winged teal, northern shovelers, northern pintails, redheads, canvasbacks, and tundra swans. Prairie dogs come home, bringing with them the rain, and bringing with them ferrets, foxes, hawks, eagles, snakes, and badgers. With all of these come meadowlarks and red-winged blackbirds. With all of these come the tall and short grasses. With these come the prairies.
In the time after, the salmon come home, swimming over broken dams to forests who have never forgotten the feeling of millions of fish turning their rivers black and roiling, filling the rivers so full that sunlight does not reach the bottom of even shallow streams. In the time after, the forests remember a feeling they’ve never forgotten, of embracing these fish that are as much a part of these forests as are cedars and spruce and bobcats and bears.
In the time after, the beavers come home, bringing with them caddisflies and dragonflies, bringing with them ponds and pools and wetlands, bringing home frogs, newts, and fish. Beavers build and build, and restore and restore, working hard to unmake the damage that was done, and to remake forests and rivers and streams and marshes into who they once were, into who they need to be, into who they will be again..
In the time after, plants save the world.
In the time after, the oceans are filled with fish, with forests of kelp and communities of coral. In the time after, the air is full with the steamy breath of whales, and the shores are laden with the hard shells and patient, ageless eyes of sea turtles. Seals haul out on sea ice, and polar bears hunt them.
In the time after, buffalo bring back prairies by being buffalo, and prairies bring back buffalo by being prairies. Salmon bring back forests by being salmon, and forests bring back salmon by being forests. Cell by cell, leaf by leaf, limb by limb, prairie and forest and marsh and ocean; they bring the carbon home, burying it in the ground, holding it in their bodies. They do what they have done before and what they will do again.
The time after is a time of magic. Not the magic of parlor tricks, not the magic of smoke and mirrors, distractions that point one’s attention away from the real action. No, this magic is the real action. This magic is the embodied intelligence of the world and its members. This magic is the rough skin of sharks without which they would not swim so fast, so powerfully. This magic is the long tongues of butterflies and the flowers who welcome them. This magic is the brilliance of fruits and berries who grow to be eaten by those who then distribute their seeds along with the nutrients necessary for new growth. This magic is the work of fungi who join trees and mammals and bacteria to create a forest. This magic is the billions of beings in a handful of soil. This magic is the billions of beings who live inside you, who make it possible for you to live.
In the time before, the world was resilient, beautiful, and strong. It happened through the magic of blood flowing through capillaries, and the magic of tiny seeds turning into giant redwoods, and the magic of long relationships between rivers and mountains, and the magic of complex dances between all members of natural communities. It took life and death, and the gifts of the dead, forfeited to the living, to make the world strong.
In the time after, this is understood.
In the time after, there is sorrow for those who did not make it: passenger pigeons, great auks, dodos, striped rocksnails, Charles Island tortoises, Steller’s sea cows, Darling Downs hopping mice, Guam flying foxes, Saudi gazelle, sea mink, Caspian tigers, quaggas, laughing owls, St. Helena olives, Cape Verde giant skinks, silver trout, Galapagos amaranths.
But in those humans and non-humans who survive, there is another feeling, emerging from below and beyond and around and through this sorrow. In the time after, those still alive begin to feel something almost none have felt before, something that everyone felt long, long ago. What those who come in the time after feel is a sense of realistic optimism, a sense that things will turn out all right, a sense that life, which so desperately wants to continue, will endure, will thrive.
We, living now, in the time before, have choices. We can remember what it is to be animals on this planet and remember and understand what it is to live and die such that our lives and deaths help make the world stronger. We can live and die such that we make possible a time after where life flourishes, where buffalo can come home, and the same for salmon and prairie dogs and prairies and forests and carbon and rivers and mountains.
Originally published in the Spring 2016 issue of YES! Magazine.
It takes years to implement new water agreements, so states, cities and major water users should start to plan now for significant temperature-induced flow declines. With the Southwest’s ample renewable energy resources and 
