Sunday, September 27, 2015

Great Lakes Water in the U.S.: Treating a Union as a State

Squabbling amongst states in a federal system may be an inherent feature of federalism. How much the jealousies and petty interests manifest in terms of policies may depend on the balance of power between the federation itself and its member-states. In the case of the E.U., the spat at the state level over how to allocate the tens of thousands of refugees from the Middle East and Northern Africa effectively stymied federal action that could have assuaged the angst. It is no accident that the state governments hold most of the governmental sovereignty in the E.U. federal system. By contrast, the case of the U.S. demonstrates that nearly consolidated power at a federal level can obviate, or stifle, strife between state governments. This alternative is not optimal either, for interstate differences tend to be ignored, resulting in increasing pressure on the federal system itself. How to handle municipal requests for drinking water from Lake Michigan is a case in point.

City officials in Waukesha, Wisconsin—with a population of about 70,000—sought in 2015 to address an increasing contamination problem in the aquifer by drawing on Lake Michigan, located 17 miles away. The Great Lakes altogether hold one-fifth of the Earth’s fresh surface-water; even so, the request for just a drop in the bucket “stirred up a colossal struggle” between the states bordering the lakes.[1]

Waukesha’s city officials ran straight into the Great Lakes Agreement—a compact of the same type as the Shengen Agreement (on open interstate borders) in the E.U.(i.e., an agreement between some of the state governments rather than a federal law, regulation, or directive). In 2008, the eight member states bordering the Great Lakes agreed to prohibit “large amounts of water from the five Great Lakes from being pumped, trucked, shipped or otherwise moved beyond the system’s natural basin.”[2] Any of the heads of government could veto a proposal to make an exception. As Waukesha lies just outside of the natural basin of Lake Michigan, the request was at the mercy of any squabble or jealousy between the states that might be triggered. 

The basins of the five Great Lakes. Wisconsin is to the left of Lake Michigan (the lake to the southwest in the picture). (wikipedia)

The extended reach of the federal interstate-commerce clause had done much to remove potential conflicts between states from arising. In the E.U. as well, the corresponding basic law had resolved and even forestall conflicts between the states. Germany, for instance, could not block out-of-state beer simply because an ingredient was different. The German Constitutional Court bowed to the federal European Court of Justice, demonstrating that some governmental sovereignty had indeed been transferred to the federal level from the states. In the case of Waukesha, Wisconsin’s head of government would have to deal with his counterparts in the seven other states. This is very unusual in the American federal system; the typical dynamic consisted of a state government appealing to a federal-level institution. That habit also comes with at least one downside.

Specifically, appealing to an empire-level institution—one whose coverage literally spans a continent and beyond—can lead to the mistaken assumption that that level is essentially that of a state, and that of a state is in turn tantamount to being regional or local. Unlike most E.U. states, most U.S. member states do not have governments at the regional level. So treating the U.S. as if it were the state of France with a large back yard and the American states as if each were a few localities or even just a locality can result in faulty policy prescriptions.

For example, the historic drought in California at the time—the snowpack in the Sierra Nevada mountains (source of 30 percent of California’s water) being at a 500-year low (ouch!)—made the heads of government subject to the Great Lakes Agreement “more protective than ever of their increasingly valuable resource.”[3] The head of state and chief executive of the government of Michigan, Rick Synder, said, “Obviously I have concerns about the usage of the Great Lakes in any capacity.”[4] He characterized the lakes as “one of the world’s most precious assets.”[5] This could well be true, with the rising sea-level contaminating drinking water in the limestone beneath Miami in Florida, for example, and the drought in California.

On the other hand, with Lake Michigan being 1,740 miles (2800 km) from Los Angeles, and 1,192 miles (1919 km) technically from Miami, we are not talking about Berlin borrowing water from Munich or London from Edinburgh. Put another way, at least eight other towns and cities just outside the lakes’ basins yet in the states bordering the Great Lakes wanted lake water at the time. Is it not absurd to assume that water needs thousands of miles away might justifiably shut out those localities? That’s what many residents in Waukesha thought—“worries that dry Western states might one day try to pipe into Great Lakes water [being] absurd.”[6] According to Nancy Vogel, a spokeswoman for the California Natural Resources Agency, government leaders there were “already pressing regions of [California] to rely less on imported water. Besides, she said, “there are extreme legal, environmental and financial hurdles.”[7]

To be sure, a California company proposed a North American Water and Power Alliance in the 1960s to “divert water from numerous sources—the Great Lakes were to be a connecting channel—to feed the West. Another plan would have redirected water into the Canadian prairies and the Southwestern United States.”[8] Such plans on a continental scale, tellingly unrealized, a qualitatively as well as quantitatively different from requests such as Waukesha in Wisconsin. For one thing, continental plans would have to involve the federal institutions of the U.S., which take into account huge cultural and political differences between the member states as a matter of course (unlike the case of a state government), and over a thousand miles (two to three thousand kms) are far from clustering with Waukesha’s 14 miles.

In short, the unique aspects of federal institutions comprising an empire-scale “extended republic,” and the related sheer vastness in territory of such a Union as the U.S. (and E.U.) are much different than the governance and territory of the comprising states. Montesquieu referred to them as wheels within a wheel. Treating hypothetical demands from California as of equal force (and legitimacy) as that of Waukesha in Wisconsin, causing the actual request to arduously swim upstream against a driving current of concern, is just one problem with treating an empire-scale (and political type of) federal Union as if it were akin to one of its member polities/republics. Put another way, if the U.S. has forgotten what it is, then it is bound to err. Likewise, to the extent that the E.U. is subject to denial on the part of its citizens, that Union too is compromised from within.

[1] Monica Davey, “Request for Pipeline Tests a Multistate Compact,” The New York Times, August 26, 2015.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.