Episode 58: Great Lakes Compact
“It would be almost impossible to transfer the kinds of quantities of water from the Great Lakes that you would need for to quench the thirsts in the Southwest. So legally speaking, I think we have a pretty good document”
A conversation with environmental attorney and clinical law professor Oday Salim (National Wildlife Federation, University of Michigan Law School) about the Great Lakes Compact. Released October 25, 2024.
guests on the show
Oday Salim
Professor Salim directs the Environmental Law & Sustainability Clinic at the University of Michigan Law School, where he also co-directs the Environmental Law & Policy Program and teaches Water Law and the Environmental Justice seminar. In addition, he is an attorney for the National Wildlife Federation in its Great Lakes Regional Center and the chair of the American Bar Association’s Environmental Justice Committee. Professor Salim has taught courses on environmental justice, water law, energy regulation, and mineral law. As an attorney, his most recent work has addressed water affordability, oil pipelines, Clean Water Act permitting, stormwater management, and the public trust doctrine. Before joining the clinical program at the University of Michigan Law School, Salim practiced environmental law in Pennsylvania and Michigan, focusing on stormwater management, water quality permitting, water rights, environmental justice, land use and zoning, utility regulation, mineral rights, and renewable energy. He has litigated in administrative and civil courts at the local, state, and federal level, and also has done transactional work for individuals and nonprofits. In 2018, he was named one of the Grist 50 Fixers for his work on environmental and public health protection in minority communities. He gives talks on various subjects, including green infrastructure in urban areas, water affordability and ratemaking, and conferring rights to natural resources.
TRANSCRIPT
Mallika Nocco
Today, I'm really excited because we haven't done a water law episode in a while, and we are going to talk with Professor Oday Salim out of the University of Michigan Law School about some topics that are just so interesting. One topic is the Great Lakes Compact. And when we were thinking about just national water issues together, like one thing or theme that came up that I think all three of us are interested is this idea of a Compact and just these types of water agreements that are across state boundaries, across international boundaries. And so this is the first of two episodes this season where we're going to talk about these Compacts.
We're going to start with the Great Lakes Compact. When you think about the Great Lakes, I mean, some of the statistics about the Great Lakes are just astounding, like they contain 21% of the world's surface fresh water. I know many of us have heard that, but just being there and visiting some of these lakes, it's just profound to look across them. And to the folks who listen in California, who you know, when I was moving back to the Midwest, say things to me like, oh, aren't you gonna miss the ocean and stuff like that. If you go to the Great Lakes and you look out, they're so expansive, it is like looking out at an ocean, and it just has a really similar majesty to me, and the fact that they are fresh water, and a fresh water resource is is pretty astounding.
The other thing that we've talked about is just this interest every time that there are exacerbated drought times in the West. There's like an eye looking towards the Eastern and Midwest United States, longingly coveting the Great Lakes water, which is very much tied to the Compact. So yeah. Faith, Sam, what do you think about Compacts in general? Or what are you excited to talk about today?
Sam Sandoval
So in my case, I've been studying Compacts, but mostly on the southern border. I mean, the Colorado River Compact, the Rio Grande Compact, the Pecos River Compact. And to me, this is kind of like a telescope when you have the bigger lens and then you go to the smaller lenses. So this is a kind of agreement between the states that then will go into agreements between different regions, and then into users and so on. But yeah, I think who was seated at the
table and what were the interests definitely defined these Compacts that perhaps were left out. We know in the Colorado all the tribal nations, they were not there. The environment was also not considered climate change. So most of these agreements are signed after a period of wet wet periods. So basically, all the water that was supposed to be there were happening to be in a wetter than usual period. And then climate change, now is changing a lot of these things, a lot of these perspectives that we have on these agreements. And while they are at a bigger scale, think of it that they will, they will affect each of us. I am really happy to expand our audience, expand our conversations to the Great Lakes. And, yeah, I've been there a couple of times. They are impressive, like this is, yeah, you cannot believe it. So anyway, happy, happy to be on this, on this episode here.
Faith Kearns
I mean, just to follow up on what Sam was saying, Mallika, when you were talking about, you know how large these lakes are, I was just reflecting back to a semi recent experience I had swimming in the Georgian Bay, which is part of Lake Huron in Canada, and it was seriously one of the most beautiful places I have ever been in my life. And so, yeah, it's just interesting to reflect on the geographies and sort of the fact that there is beauty everywhere, right? And you know, the other thing that's so interesting to me, as I was kind of looking up the Great Lakes Compact is, it looks like it was only signed in 2008, which is super interesting. I will be curious to hear a little bit more about, you know, the reason for that coming up because, you know, the Colorado River Compact is over 100 years old at this point. And so it's just interesting thinking about what led to, maybe, you know, wanting to do and signing a Great Lakes Compact in 2008.
I'm just super curious to hear because, of course, you know, one of the the things that we hear all the time whenever we write, particularly about Western water, and then posted on social media, in particular, there tend to be a lot of responses that are sort of like, well, why don't you just build a pipeline from the Midwest? And so it comes up constantly, and every single time we get into a discussion about Western water, as if it's the solution that nobody has ever thought of or talked about. And so yeah, I'm just curious to kind of hear more about if that would even work from a legal perspective, much less all the other sort of like reasons that is a fairly far fetched idea. So yeah, I'm just really looking forward to hearing more about a place I don't know that much about.
Mallika Nocco
Welcome to Water Talk. In today's episode, we are talking about the Great Lakes Compact with Professor Oday Saim. Professor Salim directs the Environmental Law and Sustainability Clinic at the University of Michigan Law School, where he also co-directs the Environmental Law and Policy Program and teaches water law and also teaches the environmental justice seminar. In addition, he is an attorney for the National Wildlife Federation in its Great Lakes Regional Center, and also the chair of the American Bar Association's environmental justice committee. As an attorney, his most recent work has addressed water affordability, oil pipelines, the Clean Water Act, permitting, stormwater management and the public trust doctrine. Professor Salim, we are so excited to have you as a guest on Water Talk. Can you just please tell us a little bit about your path to environmental law and also environmental justice?
Oday Salim
I came to law a little bit late in life, at least later than most these days. I started off in a graduate program in the humanities, and I made the switch. I think I was always interested in environmental law and environmental justice. I mean, the real story, the real origin, is that I was actually born in Iraq, and when we came to the United States in the early 1980s we were still very much following the developments in my home country. And I think everyone knows that in 1990 Iraq, led by the dictator Saddam Hussein, decided to invade Kuwait, the neighboring country. And when Iraq invaded Kuwait, the armed forces were repelled back into Iraq by an international coalition.
But the reason why that was the sort of origin story of my interest in environmental law and environmental justice is that the dictatorship in Iraq was always vulnerable to two different challenges from the north and the south. The challenge in the north came from the Kurdish population, and the challenge from the south came from the Shia Arabs, and after the Armed Forces of Iraq were weakened by the international coalition on their way back to Iraq, both sides decided, from north and south, decided to essentially engage in a rebellion to gain better autonomy and maybe even independence. The way that the Kurdish rebellion in the North was put down was through chemical gas attacks and other really horrendous types of warfare. And there, in part, the rebellion in the South was put down. And then after it was put down, that Southern population was essentially punished by the Iraqi military drawing down the Tigris and Euphrates rivers; that area where the two intersect is actually the world's second largest marshland.
When the rebellion was put down, the decision was made to punish that population in part, by dewatering that area significantly, because that population of Arabs was really very much reliant on the water, their cities and way of life was really very much on the water in those wetlands, in those rivers, and those two acts of terrorism, the chemical gas attacks in the north and the way that the rebellion was put down and punished in the south, obviously, the main thing was that they took many human lives and they caused a lot of casualties. But of course, there was significant harm to the ecosystem in the north, there was very significant pollution of natural resources and from those chemical weapons.
And in the south, of course, the dewatering of the marshlands caused many, many, many years of suffering for the people there and for the ecology there. So we were glued to our radios and our television sets at the time and listening to and watching all of this play out. And I was, I guess, 12 or 13 years old at the time, and was just seeing in my native country, this very close relationship between humans and their ecology, wow, and the way that humans really rely on their ecology, and the devastating impacts of polluting or mismanaging that ecology impacts that you know that that ended up lasting many, many years.
So I sort of had that connection very early on, and even as I pursued other things that interest and passion for environmental law and justice was always there. And so when I decided to go to law school, the first organization I joined was the environmental law society. The first professor I met with and eventually befriended was the person responsible for teaching environmental law and related courses. I didn't do anything else, really in law school. I just took everything that I could possibly take involving environmental natural resources management law, and then decided to pursue a career.
Mallika Nocco
Wow. I mean, that's such an incredible story. And I am curious, when did you first hear and start using the term environmental justice related to your own work, and kind of think about that in the frame of your own story, you know, because it's almost like you had such experiences of it. But then I feel that maybe you can tell us when the term started to become more widely used.
Oday Salim
So there are all kinds of categories of civil rights issues, but there are times when environmental matters and civil rights intersect. So I think I'd always just thought about it as a civil rights issue, that term, environmental justice, I don't think, came into my vocabulary until I was pretty late into law school. I think environmental justice, generally, as a term, probably started in the 1970s and 80s, with the birth of the modern American environmental justice movement, which was mainly a civil rights litigation movement. It was largely communities of color, black and brown communities in the south, but also in other places in the United States, bringing legal challenges to, you know, for example, local government decisions on where to place landfills. And for, you know, for all kinds of reasons, landfills kept getting placed in or very close to communities of color and very far away from other communities, especially predominantly white communities, or predominantly high income or moderate income communities, and they always seem to end up in the low income areas, in the in the areas with people of color who predominated the population. And so there were legal challenges based on the Constitution, based on the Civil Rights Act and and I think that's when the term environmental justice came into being in the American lexicon. At least it was when those legal challenges were being brought starting, I think, in the 70s and definitely into the 80s and 90s.
Mallika Nocco
That is a very interesting history to think about and consider, and just the intersection of civil rights and and all of the environmental history in the United States. So we have been thinking a lot about water compacts this season on the podcast that involve interstate and international governance. Can you please tell us and our audience a little bit more about what a compact is and how we should be thinking about them?
Oday Salim
Sure a compact is at its simplest, a contract between two or more American states that is also enshrined into federal law. So it has those two elements to it. There's a contractual element to it, but then there's also a legislative element to it. Congress actually votes on these contracts to make them compacts. Compacts themselves are named in our constitution. So there's, there's a provision of the American Constitution that specifically identifies compacts as an instrument that can be utilized, and sometimes a compact is a purely domestic instrument, but sometimes a compact can be paired with a binational or multinational agreement that is striving toward the same goal that involves a lot of the same parties. Those international agreements are just that. They're either treaties or they're something other than a treaty.
A compact is basically a contract between two or more states that happens to have, that happens to be enshrined, I should say, in federal legislation, which is important, because our Constitution, in particular, the commerce clause, and what we sometimes call the Dormant Commerce Clause often restricts the way that states can interfere with interstate commerce. So the idea is that the presumption is that there should be free flowing interstate commerce, that one state should not be able to restrict the activities of another state. But what a compact does is two or more states can agree that there will be some kind of restriction in interstate commerce, and now two states can just get together and do that anytime they want. But when it becomes a compact, that is when it becomes federal legislation that essentially takes away that constitutional, legal restriction.
In other words, it's okay to restrict interstate commerce and to impact interstate commerce in various ways if the Federal Congress approves it. And so the difference between just any old agreement between two or more states and a Compact, which is an agreement between two or more states that's enshrined in federal law, is that it has congressional approval and it can overcome some of the hurdles that exist in our constitutional system. So anyway, that's what a compact is.
Sam Sandoval
Thanks, and I think it's like a long term contract or long term agreement. And as you're saying, in the goods and the bads, where how things are related. So let's now turn to the Great Lakes. So how did the Great Lakes Compact come about?
Oday Salim
I think it depends on what origin story you're reading. But I think it's fair to say that as early as the 1980s maybe earlier, but certainly by the 1980s you begin to see stories in newspapers and magazines about the current desire, and then they were also talking about the potential for a future desire, especially the drier western states, the southwestern states, their desire to have more water resources, and there was only so much surface water that they had access to. The aquifers there only contained so much water, and there was concern that there wouldn't be enough fresh water for those places.
And so you start to see in the 1980s discussions about bringing Great Lakes fresh water to the southwest. And I think the basic idea was, if the Great Lakes region is going to boast about having an abundance of fresh water, then surely they have more than they can put to use. And because we're the United States of America and and we're all in it for a common cause, it might make sense if in one particular time of you know of the country's history, if there are certain areas that lack fresh water resources and other areas that have an abundance of them, maybe we can transfer fresh water from one place to another.
I think that's also the time when you begin to maybe see politicians, experienced politicians, discussing it. And so I think as early as the 1980s you know, we see newspaper and magazine reports, you can actually find quotes and that kind of thing. And I think that's when people really begin to think a lot about it. The federal government took it seriously enough that at some point they tried to, you know, they did pass some federal legislation that, you know, that could address the issue. If I'm not mistaken, I think it was in 1996 when the federal law was passed. And I'm not talking about a Compact, I just mean Congress passing a law that the President signed. That was a very short law, not very detailed, but that had the same idea of, let's make sure that Great Lakes fresh water stays in the Great Lakes basin.
But for various reasons, that law was insufficient. It lacked detail, it lacked all kinds of other things. It wasn't clear how much input came from the governors of the Great Lakes and the state legislatures. So in the early 2000s a number of politicians and water law attorneys and scientists and other policy experts began having much more serious discussions about a related strategy. So a federal law strategy made sense, because it would probably be good to have the Federal Congress say states may act in their own interests first, but the Federal Congress can maybe act as as a kind of referee, and so the idea was, let's still have some kind of federal legislative effort, but let's go the route of a Compact, which, you know, interstate Compacts for water resources had definitely existed already and but I don't know that there was ever, I can't think right now, at least, of a major interstate Compact that was not just about a particular river system and its basin, its drainage basin, but about a series of lakes and their drainage basins, which would include, obviously, all the rivers and all the aquifers within it. So it was a pretty, you know, audacious effort at the time.
The reason why it happened at all was that there were some very serious and from the Great Lakes regional perspective, scary discussions about having to send fresh water because, of course, what a water scientist would tell you is that there isn't an overabundance of fresh water in the Great Lakes. There's the amount of water that there should be in the Great Lakes. The Great Lakes are a particular kind of geological feature. They have a certain amount of water. Obviously, water levels fluctuate over time, but you know they have a certain amount of water, and once you begin to get really close to the edges of how much water should be in the Great Lakes, and then even past those edges, you begin to create very significant ecological impacts. Some of them are foreseeable, but doubtless many of them will be unforeseeable.
And so the idea is, before we even get there, let every region in the country you know think about what water resources are available to it. And if they don't think that they currently or in the future, are going to have enough water, then they should be thinking about conservation and efficiency measures first before they attempt to go and transfer water from one place to another. So that was the main reason the Compact was born. It was a combination of fear that the southwestern states which, by the way, were also gaining in political strength and momentum as the economies in the southwestern states were expanding and growing very, very significantly and becoming real powerhouses.
The opposite was happening in some of the Great Lakes economies. You started to see population centers like Detroit, for example, you started to see their populations either decline or plateau, and economic activity, you know, not as robust as it used to be, and so I think especially with this, with the fear that the political influence of the Great Lakes politicians may decline over time, let's strike while the iron is hot, and let's not forget that this was a Compact that was signed into law by President George W Bush. So oftentimes these come and the governors of the eight Great Lakes states who had to sign off on it were from different political parties. And even within their political parties, they represented different factions of their political parties. The state legislatures were all in very different places. Some of them were very left, very right, mixed in the middle.
So in many ways, this really transcended politics as well. This was just seen as a good measure to protect the Great Lakes from the, you know, the desire to transfer water out of the basin and to correct what they thought was a very weak federal law that was passed in the 1990s or 90s that they did not believe would protect the requests for transfer at Great Lakes water in the future.
Mallika Nocco
We were talking a little bit just because we all have connections to these western states. And one of the things that we had noticed is that those calls still happen, and we see them in very publicized and reputable media outlets from very public figures in the southwestern states. And I guess my question is, it seems like in the 80s, before the Compact existed, when the West and the Southwest got thirsty for Great Lakes water, it was scary, but now those calls are still happening. And you know, when I read those articles, I see in the comments section, people are like, no way, the Great Lakes Compact is protecting us. And like, there's all these comments like that. And I guess, do those calls that happen now have any teeth, or do they have the same kind of fear, or is the Compact just fully protecting from that? Are they just empty calls?
Oday Salim
I think in the Great Lakes region, you'll find a spectrum of opinion. Some opinions might come off as a little alarmist, where people think that the calls for water transfer today are just as scary as they were 30-40, years ago, and that Great Lakes water is just as vulnerable as it was then. And then on the other extreme, I think you have a lot of people who have decided, no, we're very comfortable with what we've got right now, we think there's maximum protection, can't really get much better, and then there's everybody in between. I think generally speaking, it's hard to look at the Great Lakes Compact and say that there is a significant legal vulnerability.
There is certainly always going to be political vulnerability. This is a federal law. We know that federal laws can change. A federal law can come along next week and revise the Great Lakes Compact. So if there's a willing Congress, and you know, and if there's, you know, if they're willing, I mean, you could, first of all, you could revise the Compact itself, but you could also potentially just pass a federal law that that modifies or gets rid of the Compact. So you know how much political vulnerability there is. I really couldn't speak to that. I'm not a political expert. I don't know political science very well. I'm not sure where the political winds are right now, and how likely that would be, especially when you hear all the time that Congress faces real challenges in getting anything passed, really, because there's just so much disagreement within Congress. But I don't know what kind of political vulnerability there is.
Legally speaking, there are some issues, but for the most part, it's a pretty powerful document. The authors of the Compact did a fairly good job of sealing off the Great Lakes water from leaving the basin, except under very exceptional circumstances. So I think anybody who thought that, I guess I'll put it this way, if there is some investor out there who is considering, you know, who's listening to a proposal to transfer Great Lakes water, and the investor, you know, I get these calls sometimes right from investment banks and from other investors who want to talk to me about the way the law works so that they can understand whether a particular kind of investment request is a safe one or not. I think any kind of investor hearing a proposal to transfer Great Lakes water, if they went and talked to a competent attorney about the Great Lakes Compact and the likelihood that their investment would have a return on investment, the answer would be no. There's no likely return on investment.
Any kind of project that would be designed in New Mexico or Arizona or anywhere else would fail because it would be almost impossible to transfer the kinds of quantities of water from the Great Lakes that you would need to quench the thirst in the southwest. So legally speaking, I think we have a pretty good document. Politically speaking, who knows, but like any federal law, it could change.
Faith Kearns
I totally appreciate hearing this perspective, because I've been born and raised in Arizona, and I've certainly heard of the Great Lakes Compact but it’s not commonly mentioned. So it's really interesting that Mallika you were saying the comments on these news articles say, oh, this thing is protecting us, whereas, like, my sense in the Southwest is nobody is engaging with, like, legal potential of some of this stuff. Like, I never hear it that way. You know, like my objections to it have much more to do with infrastructure and how that would actually work. And just seeing the cost of maintaining infrastructure, even within the state of California, to transfer water from north to south, is such an impossibility in so many ways. And then also actual people live in these places and like their water. So anyway, it's just an interesting thing.
The other thing that occurs to me is just that, you know, the 70s, the mid 70s, were such an important time in the southwest, because the federal government was investing a lot in sort of growing these states, and energy and water were sort of the interesting limitations. And so, yeah, the timing of everything. It's just very interesting to hear that since I was younger when all of that happened. So thank you for all of that.
And then just speaking of sort of more, I guess, modern issues, you know, just thinking about climate change and the Great Lakes Compact, you know, do you see any issues?
Oday Salim
Yeah, good question. I mean, let me just say a little bit more about the way the Compact works generally, because it relates to the climate change question. I mean, the Compact, it's a long document. There are a lot of provisions. There's a lot of detail, but at its essence is section 4.8 which basically prohibits any new or increased diversions of water. So that is to say, anytime that water is gonna be diverted, if there's any proposal for diversion, it's presumptively prohibited unless it meets one of the exceptions. So that means that, basically, water cannot leave the basin.
There is a loophole, the famous bottled or infamous bottled water loophole, is the major loophole. So water can be diverted away from the basin, so long as it's in containers that are smaller than 5.7 gallons. And so this was basically the bottled water exception. There are a lot of people who don't like that, but I think at the time, it was seen as a political necessity to appease various business interests.
And then there are some exceptions for what we call straddling counties and communities. So if a community or a county is located partially in the basin and partially outside of the basin, so it's a limited number of these communities, but if a community straddles the Great Lakes basin or a county, then, then they can apply. And this has happened before. One of the more well known examples is Waukesha, Wisconsin, which requested an increase in or a diversion to Waukesha, and it was approved. But it was a, you know, very, very lengthy process, very contentious process. And I think the fact that that was a contentious process, and that there have only been a handful of these diversion applications, and for each one of them, there's a lot of attention paid to it, I think that kind of tells you that, in terms of the vulnerability question that I answered earlier, people in the Great Lakes Basin are very attentive to the Compact to its restrictions, and they don't take anything for granted.
And every time there's any talk of any kind of diversion, even if it's, you know, we're not talking about diversions to New Mexico. We're talking about diversions to, you know, one of the Great Lakes states, just a portion of the Great Lakes state that happens to be a little bit outside of the basin, even those receiving a lot of attention and significant resources go toward reviewing those, those requests. So, you know, the main thing that the Compact does is it prohibits any new or increased diversions of water.
It also requires, which I think is important, it's a very scientific document. I mean, all water compacts are but this one really is very science based, science led. That's very science forward. It talks a lot about conservation and efficiency measures. One of the things the Compact does is it says, let's get an inventory so we know that there are some diversions and withdrawals of water that were happening before 2008 when the Compact was enacted. So those are legacy water uses. It's only fair that we leave them in place, and so we're only talking about new or increased diversions or other transfers of water. And the Compact says, let's take it. Let's take inventory. Let's make sure that every state in the Compact jurisdiction has a set, a very good sense of which water is being withdrawn, where it's being withdrawn. What are the, if any, approval processes that that withdrawal has to go through? So let's take inventory. Let's make sure that you know on any given day, at any given time, if we ask ourselves, where are the withdrawals happening in Michigan and Wisconsin and Minnesota? You know, the answer can come up very quickly.
So that's been a huge benefit, is just having that water resources inventory and knowing where water is being used, where it's being withdrawn, how much of it, etc. And that's just the registry. And then on top of that, there are mandates for states to set a particular threshold for water withdrawals and then have some kind of approval process. Now, to get to your point about climate change, the reason I brought all of that up is to say that in an era of climate change, this Compact that already requires us to think about conservation and efficiency, and to have every state commit to good water conservation and efficiency practices, and to make sure that certain kinds of water withdrawals that meet, you know, a particular minimum threshold are going to be safe for the local ecology that in the context of climate change, all of that just makes life more difficult, right? And all of those things become more difficult.
It's harder to think about conservation and efficiency. It's harder to think about how much water withdrawn will have an impact on the ecology of the area. Because climate change causes things to be less predictable. The Great Lakes, for example, have water level fluctuations all the time. It's part of the Great Lakes cycle, because we're relatively in geological time, a relatively young geologic feature. You know, we don't exactly have tides, but we do have these water level fluctuations that occur in 10 year cycles. Climate change makes all of that more extreme. Our highs are even higher, our lows are even lower. Our flooding that's always occurred is worse, droughts that have occurred get worse and then the ecological impacts are harder to assess, because we have an ecology. That's under more stress as a result of climate change. And so if you have, for example, a certain habitat for a species, well, climate change is already putting stress on that habitat.
So then if you take, you know, water from the system, maybe taking that same amount of water 50 years ago would have been sustainable for the system, but maybe that same amount of water today would actually harm the system because of the stresses that climate change is adding. Now, although the Compact was written in 2008 we already knew about climate change. It was very much in the news in politics, and the Compact actually expressly addresses climate change. I'm just looking at my screen here. Section 4.15, of the Compact is about cumulative impacts, and one of the subsections there says that the parties did the Compacts, or the eight states, and then the Compact Council, which is the Council of Governors, that implements the agreement, have to give substantive consideration to climate change or other significant threats to the basin waters, and always essentially update scientific knowledge of those threats.
So the Compact itself expressly, which I think is relatively rare because many water resources compacts, you know, came about decades ago, and so I don't know that many of them have climate change expressly there in the compact language. The Great Lakes Compact does. And so the nice thing about the Compact is it requires regular reporting. There are all of these assessments and reports that have to be done by each individual state and by the Compact Council. And you know, different reports have to be released at different times, but it seems like every year or two years or five years, we have some other Compact required report coming out, assessment coming out. And part of that process, or part of the reason, I should say, for that process, is to continually update our knowledge about what's happening with all the threats to the basin, including the climate change threat, and to make sure that states are being responsive to it at the Compact council level, only so much can be done.
I mean, you know what needs to be done is that essentially was already done in 2008 with the language of the Compact. Really what has to happen now is the states who operationalize the Compact need to be the ones who are really thinking through these issues of climate change and making sure that their water withdrawal assessment methodologies and their approval processes are accounting for the increased threats to climate change. And of course, the public plays a role, because many of these approval processes invite public input, and everyone is invited to, you know, to communicate during those processes, but it's especially those groups that have expertise and something like climate change that are, you know, that are invited to, to communicate their concerns and their questions.
Sam Sandoval
Before I pivot into a different topic, I do want to say that, in addition to conservation and efficiency, I think the Compact brings something that even in many places in the states might might not be the rule, which is living with their own means, living within our own means of water. And I think that is very important, because some of these compacts have been arranged in a way that some resources are borrowed from other states and move around and so on. And I think this, this really shows a good idea of trying to live with their own means. I mean, Faith can talk about that enough will never be enough in terms of water. So anyway, I just wanted to say that living with their own means is a good policy.
Oday Salim
I think one of the questions, of course, is who it means, and we're not just talking about, you know, what most people consider kind of the American community. We're talking about Quebec and Ontario, because there's a separate international agreement that is part of the Compact that invites Quebec and Ontario to play a role. They are not parties to the Compact. They can't be because they're not American states, but they're part of this international agreement, and they have a say, and they can provide their input, and they're part of the scientific assessment and reporting process, and those two provinces in Canada have their own system for being, you know, conserving and achieving deficiency and living within their means.
And then the other nice thing about the Compact, in terms of which communities, you know, whose means are we talking about, it's definitely not implemented the way it should be. But thankfully, there is an express provision in the Compact on Tribal Consultation. And now this is on the American side, obviously, to be honest, I don't know exactly what the two Canadian provinces do with regard to First Nations consultation, but on the American side, at least, again, it's not often an interstate Compact on natural resources that you would see tribal consultation expressly called out in. It's definitely not implemented the way it needs to be there. There needs to be deeper consultation and more respect for the tribes, but the fact that it's in there is certainly a good start.
Mallika Nocco
We are really excited to just have an environmental legal scholar on today, and though it's switching gears a little bit, we wanted to ask you about the recent reversal of the Chevron Doctrine. It just feels like it's going to have a tremendous impact on water governance throughout the country. And we were wondering if you could just tell us a little bit more about the doctrine and the decision.
Oday Salim
I think it's worth bringing other scholars on and to ask them the same question, because I think there might be slightly different answers. But briefly, the Chevron Doctrine. The Chevron case was a United States Supreme Court case from the 1980s and essentially the holding of that case was that if a statute that Congress passed that already directs an administrative agency in the executive branch to implement it. That this is very common, right? That Congress passes laws, but then they rely on executive branch agencies to fill the gaps in those laws. Because Congress can't get into all of the technical details and can't foresee everything that has to happen in the future.
So Congress provides, you know, broad direction, and then agencies fill the gaps. And the question that the Chevron case resolved, if it's not clear you know whether an agency you know can do something or not, or if the statute is not clear on what exactly needs to be done, or maybe the statute is silent about what needs to be done. The old rule under Chevron was that the agency is allowed to interpret the statute, and so long as their interpretation of the statute is reasonable, then courts defer to the agencies. In other words, if a statute can be interpreted by a court, then then that interpretation stands.
But if, for whatever reason, there's ambiguity or silence, then agencies would get a lot of deference from courts, and that basically means that courts would allow it to put a thumb on the scale of the agency if the agency's interpretation was totally unreasonable would an agency decision get overturned. And the reversal that we saw, or the overturning that we saw in the last Supreme Court term, was in a case called Loper Bright.
I think it's important very just briefly to get into the facts of Loper Bright, because I think it'll help elucidate the point. Loper Bright was really about fisheries management, so another kind of natural resource management, and the statute in Loper Bright said that there were times when government inspectors or government monitors could ride along on fishing expeditions, in order to make sure everything was was going okay, in order to inspect, etc and the idea was that those fishing expedition companies would pay part of the cost for the government monitor, you know, to be on the vessel.
And the statute talked about different kinds of fisheries, the Pacific Ocean fishery, various other fisheries, but it did not specifically mention the Atlantic Ocean fishery. For whatever reason, I don't actually know why the statute didn't talk about the Atlantic Ocean fishery. So the agency in this case, promulgated a rule that said, if it's an Atlantic Ocean fishery, this is the way that cost sharing is going to work. And one of the fishing companies, expedition companies, decided they don't want to pay. They don't want to pay toward this because they thought it's not fair. It's not in the statute. The statute doesn't say anything about Atlantic Ocean fisheries. So why should the agency in its rulemaking say, well, there's a gap in the law, and we're going to interpret that gap in law, in the law to mean that the Atlantic Ocean was always supposed to be there, and they won. You know, the Supreme Court sided with them and said, yeah, it's not okay.
I'm not suggesting whether I agree or disagree with any of this. This is just, you know, objectively describing what happened. And the Supreme Court said, yeah, you can't do that. If a statute is silent or ambiguous in some way, then it's the role of the courts of the judiciary to interpret those silences and ambiguities. We shouldn't allow an executive branch agency to interpret those silences and ambiguities.
So in many ways, Loper Bright the case that overturns Chevron is about separation of powers, the authority of the judiciary versus the authority of the executive branch. I mean, let me say a few things. One, this Chevron Doctrine has been on the decline for the last 10 years, it was not being utilized as much as it had been before, so it was already a little bit on the decline. Number two, this only involves the federal government, and water management is largely done at the state level, so this has zero impact on what state legislatures and state courts and state executive agencies do when making decisions about water management, no impact at all.
Now, each of the states has some kind of doctrine that's either more like Loper Bright or more like Chevron right. Each of the State High Courts has expressed some preference with regard to whether agencies are going to get deference or not, but, the Supreme Court decision itself has zero impact on state agencies and those decisions at the state level, it's all federal. So in that sense, I actually don't think it's going to have a significant impact on water governance across the country, because so much water governance takes place at the state level.
Now, if there's a federal agency that, for example, administers a Compact, so if there's a federal agency like the Pacific Northwest, you know, with the Bonneville Dam, and you have a lot of federal agencies that are in the hydropower business and are making water management decisions based on hydropower, it's conceivable that those federal agencies could promulgate a rule that interprets a statutory gap or silence or ambiguity, and that federal agency will no longer get deference. It'll be respected, and its arguments will be respected, but it won't get like a presumptive deference anymore.
But I mean, it's just they're not going to be many of those, because a lot of those, you know, federal statutes, you know, I don't think have as much ambiguity, you know, as other federal statutes do. So I honestly don't think it's going to there are other areas of the law, forest management, pollution control, you know, where I can see a lot of disputes arising, but in water management, honestly, so much of it is at the state level, and what exists at the federal level isn't always accomplished through federal rule making. It's accomplished often in other ways that I think at least I mean, again, please bring another scholar on with a different opinion, because I'd love to hear an opinion that diverges from mine. But I think that compared to other sectors of government and of the economy, I don't know that we'll see this coming up quite as often in water management.
Mallika Nocco
That actually is kind of relieving, at least for the water folks. I mean, I also, you know, obviously think forests are important and some of these other ecosystems are important. But, you know, on Water Talk, we think about water so, I really appreciate that perspective.
Faith Kearns
So our final question we always like to ask our guests is if there's anything more that you want people to know about your work and how we can all support your efforts.
Oday Salim
I appreciate that. I would just put in a plug for two organizations, three organizations. The University of Michigan Law School has this amazing environmental and energy law program that I'm a co director of. And I would encourage people to follow along our web page to see the events that we have coming up. We have a conference every two years. We just finished our conference on climate change and the future of clean energy. We have lunchtime lectures. We have other events. So especially for those who are geographically close to the University of Michigan, people should definitely follow our ELP web page to keep up with programming.
I am also very lucky to be an attorney for the National Wildlife Federation. The National Wildlife Federation is one of the main organizations that was around that shaped the way the Great Lakes Compact would be developed and would be authored. And many people who work and used to work for the National Wildlife Federation were significantly involved in the development and the implementation of it ever since. And so I would certainly follow the work of the National Wildlife Federation. And of course, they're a nonprofit organization, so you can always, you know, give a tax deductible donation to them.
And then, of course, there's the American Bar Association. I'm the chair of their environmental justice committee. The Environmental Justice Committee puts on various events. Almost all of our events are virtual events, and you don't necessarily have to be a member of the American Bar Association, or specifically of the committee, to join those events. And so we try to market them widely through social media and other platforms. And so if you go to the American Bar Association, environmental justice committee website, you can see some of those events getting marketed, and hopefully some of your listeners who were not lawyers, can join.
So I would just kind of plug those three organizations and the programming that that they put on, because a lot of it will be about water and I'll be assigning this particular podcast session and other podcasts of yours to my water law students next semester, because I'll begin teaching water law at the University of Michigan next next semester, including the Compact and so this will be a great podcast to revert people to. So thank you absolutely.
Mallika Nocco
Yeah, I love, I love to hear that synergy. Professor Salim, it's just been such a pleasure to have you on today, and we really appreciate you taking the time to talk with us.