Law, Environmental Dynamism, Reliability: The Rise and Fall of CALFED

Abstract

This article examines conceptual frameworks often used to understand and resolve controversies involving scarce and legally protected natural resources. It proposes that those traditional frameworks, though ingrained in legal structures and conventional expectations, fail to adequately address tensions between resource consumption, environmental protection, and the reliability of resource allocation patterns, and thus can induce the adoption of solutions that prove fragile in contexts of environmental uncertainty and change. It then proposes a different conceptual approach capable of facilitating more lasting solutions. The article illustrates the importance of that conceptual shift by analyzing an important environmental controversy in California. Efforts to resolve that controversy, though widely praised in the legal academic literature, have not succeeded, and this article proposes that those failings partly reflect conceptual frameworks ill-suited for dynamic and uncertain environmental conditions.

Keywords: CALFED, water supply, endangered species, Bay-Delta, water rights