Professor Charles J. Meyers spent 1971-72 in Washington, D.C., as assistant legal counsel to the National Water Commission. As part of his work there, he contributed chapters to the Commission’s report dealing with improvement of federal-state relations in the law of water, ground water management, inter-basin transfers and improving efficiency in water use through legal reform. He participated in the 19th annual Rocky Mountain Mineral Law Institute in July, 1973, speaking to the water section of the Institute on the points of interest to practicing lawyers in the National Water Commission Report, emphasizing environmental protection, better use of existing water supplies, economic evaluation of water resources development, and proposed changes to the law relating to federal-state relations.
With Professor Howard Williams, Professor Meyers IS a consultant to the State of Alaska in its mineral resource litigation involving the Alaskan pipeline. He is also conducting a study of the feasibility of establishing a new law school in the Claremont Colleges complex.
I want to try to give you some brief insights into what goes on in a classroom in one course at the Stanford Law School, taking as my theme the Water Law course I have developed over the years I’ve been at Stanford. It takes a little bit of history to develop this. I was quietly working away on Oil & Gas Law in New York at Columbia in the 1950s; I used a little water in scotch and for bathing and that was about the extent of my interest in it. One day out of the blue Simon H. Rifkind, an eminent New York lawyer who had been on the Federal Bench and left to go into practice, called me and said that the Supreme Court had appointed him special master in Arizona v. California and would I be interested in working for him. I said, .”Well, what’s involved?” He said, “We’re going to try It every summer in San Francisco,” and I said “that’s.enough for me; I’ll sign on.” That was my introductIon to water law. The case, which involved the apportionment of the Colorado River, was tried in 1956 ’57, and ’58 in San Francisco as promised, and the report was written in ’59 and filed in ’60. It seemed approprIate durIng that perIod to try to learn something about water law, although the California defendants I think take the view that we did not learn enough. They lost.
At any rate I continued to work on water law intermittently, with time out for more oil and gas (some would say more gas than anything else) and in 1971 in collaboration with Professor A. Dan Tarlock, a Law School alumnus and a professor at Indiana, a water law course book was produced which embodies the course I had been developing over the years at Stanford.
What I really learned by being Judge Rifkind’s law Clerk in Arizona v. California is that there is an awful lot that lawyers have to know that is not found in judicial opinions. An attempt is made in the course book to introduce the student to the economics, politics, and administration of water. Water law lends itself to this treatment because it runs a wide gamut. We begin our book with the basic property systems in water, which are the appropriation system and riparian system. I won’t go into much detail, but what we tried to do was not to teach the black letter law of the system but rather its basic structure and how it works economically. Does it encourage investment? Is there a possibility for reallocation of rights to higher uses? In other words, we look at water law systems in the context of economic efficiency, trying to show law students that economics has an influence on the development of the law. Moreover, we try to ask questions about how the law can be improved to encourage a more efficient use of resources-something lawyers should know about as citizens and, from time to time, as decision makers.
The second part of the book contains case studies illustrating the politics of water. One could even, I think, make a pretty strong case that that’s almost all there is to water law-politics. Certainly in the case studies we have selected the political element comes through quite strong, with of course a lot of the political questions ending up in court, as de Toqueville says we like to do in this country.
One of the case studies is the California Water Plan. We go back to its antecedents, beginning with Los Angeles’ venture into the Owens Valley, then consider the Central Valley Project, and end with the Feather River Project. We try to examine the Department of Water Resources, where they get their influence, how they raise their money, the 1960 fight between the north and the 3 south over area-of-origin protection. We take a close look at the Central Valley Project, which started as a state project, went bankrupt in the ’30s, was taken over in 1935-36 by the federal government, and spawned extensive litigation thereafter.
A second case study concerns the Colorado River, partly because I know it best but also because it lends itself beautifully to the interplay between congressional action, executive action, administrative action, and judicial action. The story there goes back to the attempts to negotiate the Colorado River compact which were finally successful in 1922; it took six years to obtain ratification and Congressional approval, with Arizona not ratifying until 1944. Congress enacted the Boulder Canyon Project Act in 1928, which authorized construction of Hoover Dam, and that Act precipitated a whole series of Supreme Court litigations with Arizona trying to keep Hoover Dam off the River. Feelings ran pretty high. In the case of another dam downstream, Parker Dam, Arizona sent troops to try to keep the dam from being built. The 1963 Supreme Court decision in Arizona v. California finally set the stage for the most recent political fight over Arizona’s use of the River. It was a three-cornered fight, with Arizona on one side, California on another side, and the Upper Basin states on the third side. That fight went on in Congress until 1968 when the Colorado River Basin Project Act was enacted, authorizing the Central Arizona Project, a two billion dollar project now under construction.
We trace this history through, seeing how California won in Congress some of what it lost in the Supreme Court. We also look at the environmental aspects of these projects and the politics of environmental challenges. Here is where we examine benefit-cost evaluation. The book contains 60 or 70 pages of extracts of writings by economists and political scientists on benefit-cost. Some people, mostly economists, think that it was benefit-cost evaluation that beat the proposed dam in Marble Canyon, a dam that would have run some water into the Grand Canyon National Park. The environmentalists got very excited about it; their economist allies thought it bad economically and produced studies to back up their attacks. Although the studies were excellent, my own guess is that it was advertising not economics that beat the dam. The proponents claimed the dam had great environmental value because people could get closer to the canyon walls by boats on a lake surface. Dave Brower and the Sierra Club responded with full page ads in newspapers allover the country, asking: “Shall we flood the Sistine Chapel so the tourists can get nearer the ceiling?”
For whatever reason, the Marble Canyon project was defeated; we have the students look at all of the weapons used in the fight.
The objectives of the course are to try to bring to bear on an industry, specifically the water industry, some materials from other disciplines-hydrology, economics, political science, engineering. It helps, of course, to have students from the relevant disciplines in the class. I’ve been very fortunate to have the support of Ray Linsley of Civil Engineering; several of his students are in the course almost every year. There has been less success in attracting economists and political scientists, but perhaps there is some growing interest there. I would like to see more interdisciplinary classes at Stanford. A university should expose its students to interdisciplinary experiences in which people from different disciplines sit down together, study together, and do projects together. These projects need not advance the state of the art in order to be successful. What is needed is education about how to work with each other, what the language of other disciplines is, what each can contribute and what its limits are.
What we’re attempting to do at the Law School this year is to develop a pilot project in environmental studies. A core course in the law of environmental protection, covering both substantive and procedural law as well as some economics, is being offered in the fall. It will be followed by a seminar in the spring, purely interdisciplinary, to design a project for execution in the summer by students of law, engineering, economics, business, and any others we can interest. No project has yet been selected, and much will depend on the kind of persons we can attract. But a range of topics is under consideration, such as an analysis of the costs, benefits and alternatives of the Peripheral Canal, alternate solutions to the conflict between Truckee-Carson Irrigation District and the Pyramid Lake Indians, or a traffic plan for Stanford University. Whatever the topic, the effort will be to conduct a study that makes some contribution to the solution of a problem and that also contributes to an education in the process of getting disparate disciplines to work together.