Water Courts: The Way Forward?

Abstract

Definition of property rights is not useful unless there is an enforcement system, either public or private, that backs it up.  While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked.

Enforcement has been conceived as a public good provided by government. It may take different forms: from administrative agencies’ decision to judicial decisions. Given the existing backlog in the judicial system and the complexity of environmental law, specialized courts have gained traction in recent decades. At least 42 countries have specialized environmental courts (for instance, the Green Tribunal was established in India in 2010) and while not common in the United States, they are not unheard of in the United States either (consider for instance the experiences of the Vermont Superior Court Environmental Division and the Shelby County-Tennessee Environmental Court). In addition, in the United States there is specialization at the administrative adjudication level with the EPA administrative law judges and the environmental appeals board. Last, whenever drought strikes, the need for water courts become one of the issues under discussion in jurisdictions such as California.

First, the article covers how the literature has analyzed specialized tribunals across different legal areas. Second, it establishes the need for specialized water courts. Factual and legal complexity of water disputes demands specialization both at the trial and at the appellate level. In this vein, the pervasive use of special masters in water cases illustrates the challenges ordinary courts face when deciding water cases. Additionally, like in patent law, some trial judges seem to have organically specialized in water issues. Third, the article existing examples of water courts and highlighting the lessons and guidelines that can be learned from those. Two water courts are being analyzed to a greater detail: Colorado Water Courts and Southeastern Spain consuetudinary water courts. Fourth, the lessons drawn from them are applied to Montana, where the Water Court in charge of adjudication may become a permanent judicial body.

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