Shortcomings in financial resources threaten the performance of our water and wastewater infrastructure and the law–including laws written by legislators, regulations written by agencies, policies/practices/guidance issued and/or followed by agencies, or utilities–plays an important role in determining that financial future. The role of law in supporting a strong financial future for water and wastewater infrastructure has not been comprehensively examined and is currently not well understood. Law lays the groundwork for determining rates, calculating tariffs, spending revenue collected from water and sewer ratepayers and protecting access to water services for low-income families. States may or may not set out general guidelines for rate setting and expenditure, but generally that authority is granted to municipalities, leaving room for significant diversity in approach. To guarantee that our municipal water needs are met, we need to understand the role law plays in ratepayer-generated water infrastructure financing. Stronger, more robust legal regimes will protect the long-term financial viability of utilities. Furthermore, significant consumer protection concerns are raised when ratepayer money is not spent toward water and wastewater operation and maintenance and instead, other municipal costs.
SUMMARY OF KEY ISSUES
There are two main issues raised. The first issue is examining the role and influence of law in guaranteeing the financial security of municipal water and wastewater utilities. The second issue is whether the failure to spend the money collected through water and sewer rates on water and wastewater infrastructure presents a consumer protection issue.
To conduct this analysis I will identify and evaluate how the law shapes water and rate-setting and controls the expenditure of ratepayer revenue. I will then examine whether there would be any claims under state or federal consumer protection laws if ratepayer money collected through water and sewer rates is not being reinvested into water and sewer infrastructure.
SUMMARY OF CONCLUSIONS
I am in the process of collecting the relevant information to conduct these analyses. I expect to find that state and municipal law infrequently sets base expectations regarding municipal water and sewer rates and that there are consumer protection implications when ratepayer money is diverted to non-water and non-wastewater infrastructure costs.
SUMMARY OF IMPLICATIONS OF THE RESULTS
In 2013, the American Society of Civil Engineers gave U.S. drinking water and wastewater infrastructure a “D” and estimated a need for $125.9 billion to maintain our water and wastewater infrastructure in 2040 (2013 Report Card for America’s Infrastructure). They also estimate an $84.4 billion gap in meeting that need. Given that the revenue to operate water and wastewater infrastructure is generated through ratepayers, understanding the role law plays in influencing rate-setting allows us to evaluate why rates are insufficient to meet our infrastructure needs. Furthermore, the research will allow for greater transparency and accountability in utility and infrastructure operation and service provision.
C8: WHAT DOES THE DUPONT LITIGATION HAVE IN
COMMON WITH ZENO’S (ARROW) PARADOX,
GREEK TRAGEDY, AND DOCTOR WHO,
AND WHAT SHOULD WE LEARN FROM IT?
Jane Maslow Cohen
University of Texas School of Law
This paper will follow its natural division into a three-part frame. The first part will be a highly condensed, factual account of a connected series of civil litigations against E.I. DuPont deNemours & Co. (DuPont), a Delaware conglomerate founded in 1802, one of the largest chemical companies in the world. The issues at bar arise out of DuPont’s long-term use, begun in the 1950’s, of C8, also known as PFOA, a toxic, carcinogenic perfluorochemical, in product manufacturing. The litigation began in federal court in West Virginia in 1999 and continues to this day in a multi-district federal litigation in Ohio. In the pending case, consolidated from claims filed in many states, there are 3,500 plaintiffs whose actions for individual relief, based on six terrible conditions and illnesses—some, fatal-- await the completion of four “bellwhether” trials now in the process of being heard. In the first of these to conclude, the plaintiff, a kidney cancer victim, was awarded $1.6 million. As the remedies litigation inches forward, DuPont is pursuing a corporate merger, having already spun off its chemical division and the potential liabilities and environmental fines from its C8 use into a new company (Chemours), which may not be able to carry those loads. (Market analysts are split.)
In the second part of the paper, I will look in on this riveting morality play from several sides that include interrogations of the long-term and current handling of the water sources contaminated by C8; the EPA’s responsibilities, actions, and inactions, throughout, involving PFOA levels in drinking water; the activities of the Science Panel that established the links between C8 exposure (at relevant levels) and the documented harms-- after seven years of study; economic and legal engagement of the water districts whose supplies, beginning in the 1980’s, were damaged by DuPont’s activities; the litigation-related and ethical maneuvers of the DuPont legal team, at various points; and the issues that arise out of the planned corporate re-structuring of DuPont, if it is allowed to proceed.
My purposes include the examination, using this C8 litigation as a lens, of legal and moral obligations, including imperfect duties, that have struggled to achieve significance, given the relaxed regulatory environment for water pollution that has stubbornly endured.
My method includes a mix of narrative elements with legal and policy analysis. But it also will include interviews with the lead plaintiffs’ lawyers; water district managers; and corporate law experts.
Conclusions and implications (part 3) will draw from these interviews. They will also draw on the fact that perfluorochemicals have been found in municipal water supplies located within twenty-seven states.
My conclusion will, of course, unpack the meaning of the title of this project, inspired by Bertrand Russell’s solution to Zeno’s paradox: “Motion is a function of position with respect to time.”
Chile is a country with a long history of conflicts over access to water resources. This study considered a multidimensional analysis based on Data and Text Mining of prosecuted legal disputes over water rights through the entire territory and over the years to track and categorize events related to water, conflicts, and disputing parties; together with an analysis of the state's capacity, particularly the role of institutions related to water regulations and its implementation. The analysis shown not only a substantial increase in the number of legal disputes over the years, but also clear patterns of conflict types in some specific geographic locations, and noticeable regularities of used legal resources, arguments and strategies. We also found, through a Topic Analysis and Natural Language Processing, an increased diversification over time of the topics contained in legal claims, suggesting an increment in the complexity of conflicts, going beyond the simplistic statement that reason for the increase of conflicts is because of the scarcity of water resources. The analysis has shown that Chile has many institutions with diverse degree of competences and interferences in the decisions on water use and whose uncoordinated actions have produced inefficiency and a notorious decline in the State's capacity to solve conflicts. There has been a manifest problem of governance and lack of a national water policy that would prevent water use from becoming a source of conflict. An analysis of the capacity of state's institutions to solve water conflicts based on metrics that measures state bureaucracy and suitability of the authorities, staff and decision makers suggested a strong correlation between these indicators with the number and complexity of these conflicts.
The goal of this paper is to introduce the Spanish legal developments regarding water resources and urban planning over the last few decades. As a consequence of these developments, it is mandatory nowadays that the competent public authorities report on the existence of sufficient water resources to fulfil projected needs from the expected urban developments (new residential areas, industrial zones, etc.).
For decades Spain suffered and unsustainable economic growth based on the building industry and property speculation. That unsustainable economic growth, together with climate change, led to the overexploitation of aquifers and problems of water supply in some geographic areas.
As a result, in 1999 the legislator introduced the need for the competent territorial authority to provide a report on the existence of sufficient water resources during the process of elaboration of the urban plans. Data and information provided by the engineers and other scientists integrated into the State Public Administration are an essential part of those reports.
Ever since, the combination of the will of the legislator – although with a poor legislative technique - and judicial criteria have been gradually reinforcing the requirement for the report, and now it is mandatory and binding
In this research conclusions have been deduced from the analysis of legislation (2001 Water Act, 2008 Soil Act, and Additional Provision 2.4 of the 13/2003 Act), case law (several judgments until 2015 resolving conflicts in several Spanish basins, especially in the Mediterranean area), and legal-scientific doctrine.
Four main conclusions can be drawn from this analysis:
First. Today no urban plan can be lawfully passed in Spain without an official report that ensures the existence of sufficient water resources (i.e. Judgement of the Spanish Supreme Court of 15/07/2015).
Second. Qualified technical staff (scientists, engineers) must participate in the elaboration of those reports together with legal staff.
Third. There is still some reluctance among some operators, public authorities included, to consider that report as binding and mandatory. However, the Spanish Supreme Court has firmly supported the binding and mandatory nature of the report.
Fourth. The joint confluence of several factors is needed to try to prevent violation of the legal protection of the water:
a) Social awareness and education on sustainable development.
b) Public authorities that serve objectively the general interest and provide a high level of technical preparation through highly-skilled engineers and scientists who can transmit that knowledge to other people (e.g. judges) lacking that technical preparation.
c) Independent judicial bodies that take into account the constitutional principle of sustainable development when interpreting and applying the law.
d) The existence of a popular action, so that anyone can access judicial processes.
e) Clear and precise legislation.
An understanding of the Spanish experience, its legislative and judicial evolution and its difficulties may be helpful for other States. In this way, this study is meant to contribute to the balance between urban planning and the rational use of water resources in the context of sustainable development.