Ringside: Would Suing the Bureaucracy Bring Us More Water?

There isn’t a major water project in California in the last 30 years or more that hasn’t been subject to relentless litigation. Usually the litigators represent powerful environmentalist organizations, sometimes they represent social justice groups, and sometimes they represent labor. But in every case, they hit water projects from every legal angle imaginable, either completely derailing them, or delaying construction for decades.

Although environmentalists, social justice activists, and labor unions all tend to file lawsuits against water projects on environmental grounds, there is no natural alliance between these three groups.

For example, labor union leadership must know that the reason there aren’t more jobs on water projects, or on any big infrastructure projects, is because the regulatory burdens and the cost of litigation prevent most projects from ever getting started. And by the time projects finally do begin, half the budget has already been blown on litigation and bureaucratic compliance and finance charges during wasted decades of delay.

The alliance of social justice groups with environmentalist organizations is perhaps even more inexplicable. California’s water scarcity impacts low income communities more than any other sector of the state’s population. According to a 2024 report released by the State Water Resources Control Board, we now have almost 400 municipal water systems serving nearly a million Californians that don’t meet state requirements for safe and reliable drinking water supplies. The report also finds that two thirds of these failing systems serve communities of color, half of them also coping with poverty and pollution. Social justice groups should be fighting for more water supply projects, not helping environmentalist groups kill them.

Which brings us to the question of what must be done. Why haven’t the proponents of water projects made more use of litigation? It may be the only option. The state legislature will not help. Our politicians are committed to solving water scarcity through water rationing. A ballot initiative campaign could easily cost $50 million and still lose. So why not sue?

I’ve spent the last few weeks asking this question and have spoken with several experts on the topic, all of whom insist on anonymity. Their answers are convincing and daunting. The overall perception is that no matter what happens with water supply projects, until management of the Delta is changed, very little water from new water supply projects will ever make it to farms or cities. So how could litigation completely overhaul delta management?

Over the past 20 years the volume of water delivered to farms and cities by the State Water Project has gone down at the same time as native species in the delta have declined. The two things that delta management is meant to achieve – provide water for food and people, and at the same time increase the populations of threatened species – have not been achieved.

In order to change how the delta is managed, it is necessary to identify who manages the delta. It turns out, nobody and everybody manages the delta. Literally hundreds of local, regional, state, and federal boards and districts and interest groups play a role in managing the delta, but nine groups stand out: U.S. Fish & Wildlife, California Fish & Wildlife, National Marine Fisheries, the National Oceanic & Atmospheric Administration, the U.S. Bureau of Reclamation, the California Water Resources Control Board, the California Department of Water Resources, CalEPA and U.S. EPA.

How can this Hydra manage anything? Each of these agencies have their own experts, they get their money from different sources, and they have different tasks and priorities. Moreover, they are all bureaucracies, which means they always risk less by doing nothing than by approving something that might not work.

This is a system built for failure. Nine bureaucracies all making their own rules and regulations, all of them inherently designed to operate at a glacial pace. If we awakened tomorrow in a California where not one outside litigant wanted to challenge water supply and conveyance projects, every one of these nine powerful agencies would still be trying to outdo each other putting obstacles in the way.

If the target of lawsuits to compel better delta management and more water supply projects is an amorphous Hydra, the bringer of lawsuits is equally elusive. Who would do this, and risk the wrath of agencies that are tasked with approving and helping to fund water supply projects? The people most victimized by the regulatory swamp also have to live in it, which makes them understandably hesitant to try to drain it.

And so, against these odds, Californians who want more water are trying to find a case that would make a difference. But whose behavior are they going to change, and will it be enough?

One avenue of hope is the possibility that labor unions, social justice activists, and reasonable environmentalists will join the fight for more water. If that happens, a potentially irresistible force could be brought to bear on this challenge.