Miscellaneous provisions
Creation of the Administrative Body
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- B. Enforcement of the Great Lakes Compact
- Understanding the Need of an Interstate Compact
Creation of the Administrative Body A compact identifies a governing body to implement and fulfill the agreement’s goals.12 The Great Lakes Compact calls for the creation of a Council composed of the Signatories’ Governors. The role of the federal government in the agreement’s governing body varies by compact.13 Here, the compacters are trying to retain “the authority over Great Lakes water management,” so the federal government is not included as a Council member. The Great Lakes Compact Council is charged with the responsibility to “use the standard of review and decision procedures contained in or adopted pursuant to th[e] compact as the means to exercise their authority.” The Council must also “identify priorities and develop plans and policies” for the management of Basin resources. Finally, the Council is responsible for overseeing implementation and enforcement.
Here, there is no indication that the state legislatures will not ratify. Throughout the entire process the public and legislatures have been involved and the overall tone seems to be supportive. Thus far, six of the eight signatories have taken affirmative action in an effort to ratify the Compact in their respective states. Minnesota is the only state to pass bills in both legislative chambers. Illinois and Indiana have introduced bills in one chamber this session. Ohio and New York passed bills in only one chamber last session, but have yet to take action to revive these bills in the new year. Similarly, a bill was introduced in Michigan’s Senate last year but there has been no new action this session. Alternatively, Pennsylvania and Wisconsin have yet to take any affirmative legislative actions. When the States’ ratification process is finally complete, the compact will then go before Congress. According to Article III of the United States Constitution, to be an enforceable interstate compact Congress must consent. Once Congress consents, the agreement will be transformed into federal law and become enforceable in federal court. If any signatory fails to meet its obligations under such a compact, then enforcement actions can be brought against the violator. Understanding the Need of an Interstate Compact The Great Lakes compact was prefaced by a serious of unenforceable, voluntary agreements as well as two federal agreements, the BWT and WRDA. In short, the voluntary agreements were insufficient because they are not enforceable and implementation was often inconsistent.14 The more complicated issues are associated with BWT and WRDA. The need for a new management device can be illustrated by revealing the holes in these two agreements. 1. Boundary Waters Treaty Scope Limits its Ability to Protect the Basin The Boundary Waters Treaty is unable to sufficiently protect the Basin because, as mentioned above, its reach is fairly limited. The Treaty grants the IJC authority over proposed diversions from waters shared by the US and Canada only if it would affect water levels or flows. Nowhere does the Treaty call for a ban on diversions; it simply requires approval by both federal governments. Furthermore, this approval is only for direct diversions from the Lakes, it does not include underground water or tributaries. It is important to note that the Compact will supplement, but not change the Boundary Waters Treaty. This supplemental role should fill the holes the treaty left behind, ensuring effective management. For example, the compact is not limited to international waterways; rather, it applies to all Basin waters including groundwater and tributaries. In addition it applies to both large diversions that may impact levels and flows and smaller proposals, which the Treaty fails to address.15 2. The WRDA could not sufficiently protect the Great Lakes Those in opposition of the Compact may see the WRDA as an adequate means of protection for the Great Lakes. However delegation issues, enforceability questions and legislative vulnerabilities make the WRDA’s effectiveness questionable.16 As mentioned above, the WRDA provides no standards for decision making and there is no requirement that decisions be based on science. Because of this, the WRDA has allowed approval for diversions which are not backed by consistent reasoning.17 This blind decision making could be a target for a delegation doctrine or commerce clause challenge. For example, in Whiteman v. American Trucking Association, where the Supreme Court considered a delegation issue under the Clean Air Act, the court alluded to the fact that even though delegation issues were rare, too broad a delegation would be a violation of the Constitution. Unlike the WRDA, the Compact includes science-based and conservation-based standards, avoiding some of this blind decision making. Next, the fact that it would only take one sentence in any piece of federal legislation to dramatically alter or destroy the WRDA is an inherent danger of using management creatures controlled by Congress. For example, “[c]ongress may exercise its Commerce Clause powers … and simply change the law, allowing both Great Lakes water and Great Lakes water management authority to be diverted out of the region” is a real concern. While a compact is not absolutely immune from a Congressional amendment, it does have the added protection of approval from the state legislatures as well as increased public visibility. Additionally, “once [the] compact is adopted by Congress, [it] would be protected against challenges under the commerce clause.” Finally, the WRDA does not provide for any kind of citizen involvement nor does it include citizen enforcement provisions. For example, in Little Traverse Bay Bands of Odawa Indians v. Great Spring Water of America, the court held private parties could not take action if the Governors failed to act because the WRDA does not provide for an express or implied right for private action.18 It has been argued that to “make the [WRDA] an effective tool for conserving the Great Lakes, private parties should be given the ability to sue to enforce its provisions.” This is precisely what the Compact tries to do by allowing “any person” to seek judicial review of the Council’s actions, “any person” to bring action to compel compliance, and “any aggrieved person” to commence civil action. . . . . . . . [B]ecause a compact is permanent in nature, it is one of the few instruments that can adequately provide for regional stability and uniformity in decision-making. Since water quantity issues do not abide by political boundaries, these regional management characteristics are imperative for effective management in the Great Lakes Basin. A decision from within the region by all the regional bodies is likely to be “mutually beneficial” and more “sensible” then one handed down from a court. Furthermore, regional decision makers are better equipped to handle changing regional dynamics and economic needs. Additionally, because a compact is considered a contract among the signatory states, it can be tailored to meet the needs of each management project, which “afford[s] states the opportunity to develop dynamic, self regulatory systems over which the party states can maintain control … [and] adaptive structures that can evolve to meet new and increased challenges that naturally arise over time.” This flexibility has allowed compact to be successful in a number of management efforts including water pollution, migrating fish, and radioactive waste. Compared to previous diversion policies, the Great Lakes Compact provides the greatest protection against diversions by banning “all new or increased water diversions” out of the basin. There are limited exceptions for communities located near or on the Basin including straddling communities, straddling counties, and intra-basin transfers. However, before any of these exceptions can apply, a list of conditions and criteria must be met. For example, a diversion can only qualify for an exception if it “cannot be reasonably avoided through … conservation,” will be limited to “reasonable” quantities, and will not result in “significant individual or cumulative adverse impacts.” In addition, each state is required to “develop its own Water conservation and efficiency goals and objectives” and create a “program for the management and regulation of New or Increased Withdrawals and Consumptive Uses by adopting and implementing Measures consistent with Decision-Making Standards.” “The common decision making standard is only a minimum standard [and] states may impose more restrictive standards” allowing each party to “determine the scope and thresholds of its program,” which provides flexibility in implementation. . . . .
Some, however, feel that having two separate agreements, one which Canada is not a party to, is “a unilateral approach for dealing with an international problem.”20 There is a fear that multiple agreements could further divide an already fractured Great Lake’s governance structure. Such an effect is illustrated by the 1987 Protocol which removed certain IJC responsibilities. The result was “shifted power from a bi-national focus where the U.S. and Canada shared equal footing to a more asymmetric bi-lateral power sharing arrangement between the parties.”21 The Compact, should not however be dismissed immediately as an ineffective, bilateral instrument. The Compact attempts to address the bi-national objective of protecting the Lakes from water diversions, but simply does so on a level once removed from the federal government. Stepping down to the regional level helps avoid the danger of “under-representation of environmental interests [which] is likely to be more serious at the federal level.” Finally, the interstate compact is often criticized for its “inflexibility.” A compact creates a concrete, legally-binding agreement between states which can not be easily modified. If poorly drafted, a compact will not be able to adapt to changing conditions in environmental regulations, ecological changes, population growth, or First Nation needs and demands. Such changes can make it increasingly difficult to meet a compact’s terms and conditions, which can lead to expensive negotiations and court battles. A common example of unyielding permanency is in the Rio Grande and Pecos River Compact, where new mandates under the Endangered Species Act have caused extreme difficulties for the participating states to allocate water in compliance with the compact’s terms. However, as briefly discussed in the benefits section, permanency is not always a negative characteristic. Here, it is likely to be a virtue. The Great Lakes Basin is a vast, complex, multi-jurisdictional ecosystem where consistent and uniform management is difficult to achieve. For years, the Basin Signatories have been looking for some way to preserve their resource in perpetuity. Unlike some of the Western Compacts, where the permanency issue is clearly illustrated by unyielding allocation numbers, the Great Lakes Compact does not definitively establish numbers. Additionally, “the Compact provides for flexibility as to its implementation, administration, and interpretation when decisions are made at the State level.” If permanency and inflexibility issues do develop, then the compact can be amended. 1 Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement, Dec. 13, 2005, available at http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Sustainable_Water_Resources_Agreement.pdf [hereinafter Sustainable Water Resources Agreement]. 2 Great Lakes-St. Lawrence River Basin Water Resources Compact, Dec. 13, 2005, available at http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_River_Basin_Water_Resources_Compact.pdf [hereinafter Compact]. 3 See International Joint Commission, Protection of the Waters of the Great Lakes 5 (2000). 4 See Marcia Valiante, Harmonization of Great Lakes Water Management in the Shadow of NAFTA, 81 U. Det. Mercy L. Rev. 525, 531 (2004). 5 See e.g. MCWC v. Nestle Water, 269 Mich. App. 25 (2005) (discussing the dispute over the regulation of groundwater and the standard for determining whether or not withdrawals should be allowed). 6 See MacAvoy, supra note 8, at 57. 7 Water Resources Development Act, Pub. L. No. 99-662, 100 Stat. 4230 (1986) (current version at 42 U.S.C. § 1962d-20 (2000)). 8 The Council of Great Lakes Governors, The Great Lakes Charter Annex 2001, June 18, 2001 [hereinafter Annex 2001]. 9 See Jeffery E. Edstrom et al., An Approach for Identifying Improvements Under the Great Lakes Charter Annex 2001, 4 Tol. J. Great Lakes’ L. Sci. & Pol’y 335, 336 (2002). 10 The Compact does provide for three exceptions. Compact, supra note 14, at §4.9. 11 The average time “from the actual signing or the first ratification, whichever is earlier, to the date of federal consent, without including the period of negotiation” for interstate compacts dealing with natural resources was six years and nine months. See Frederick L. Zimmermann & Mitchell Wendell, The Law and Use of Interstate Compacts 54 (1976). 12 A compact can be administered and implemented in a variety of ways including administration by existing agencies, the creation of compact administrators and associations, the establishment of intergovernmental agencies. See Zimmerman & Wendell, supra note 84, at 29-31. For additional, more recent information on compact governing bodies see Broun et al., supra note 17, at 133-146 (discussing structures for administering interstate compacts) 13 For example, the Upper Colorado River Compact designates the commission will be made up of a member of each state and, if the President so desires, one representative for the United States whereas the Atlantic State Marine Fisheries Compact Commission consists of three representatives from each state each of which is designated an official role. See ZIMMERMAN & WENDELL, supra note 84, at 58-9. See also e.g. Broun et al., supra note 17, at 66-68 (discussing federal participation in compacts). 14 Problems often associated with voluntary agreements are discussed in more detail see infra pp. 21-22. 15 Larger proposals are regulated through Regional Review in section 4.5 whereas smaller diversions will be subject to water conservation and efficiency programs in section 4.2. Id. at §§ 4.5, 4.2. 16 See Annin, supra note 32, at 151 (stating “[m]any governors began to wonder about the effectiveness of WRDA as a piece of water-management law”). See also id. at 199 (citing James Lochhead stating the WRDA would not be able to stand legal challenges because it is “unconstitutional and a violation of international trade agreements”). 17 Major diversion approvals under the WRDA include Pleasant Prairie, Wisconsin and Akron, Ohio. See Diversions of Great Lakes Water, Our Waters (Great Lakes Water Institute University of Wisconsin-Milwaukee, Milwaukee, Wisc.), 2006, at 2-3 available at http://www.glwi.uwm.edu/ourwaters/documents/DiversionsWeb_000.pdf. For additional information on the Pleasant Prairie and Akron diversions see generally Annin, supra note 32, at chs. 7, 10 18 203 F. Supp. 2d 853, 863-64 (2002). 19 However, it should be noted that the Sustainable Water Resources Agreement is non-binding, so the level of representation is not equivalent between the States’ Compact, which is binding, and Canada. This is still a point of contention for many Canadians. 20 See Steven Shrybman, Our Sovereignty at Risk, Canadian Perspectives, Winter 2005, at 5-6. 21 See id. Directory: faculty faculty -> Dsci 3870: Management Science faculty -> Handling Indivisibilities faculty -> Course overview faculty -> Curriculum vitae wei chen professor faculty -> Digital image warping faculty -> Samples of Elements Exam Question III contains All Prior Exam Qs III except faculty -> 【Education&Working Experience】 faculty -> References Abe, M., A. Kitoh and T. Yasunari, 2003: An evolution of the Asian summer monsoon associated with mountain uplift —Simulation with the mri atmosphere-ocean coupled gcm. J. Meteor. Soc. Japan, 81 faculty -> Ralph R. 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