The (Almost) All-American Canal: Consejo de Desarrollo Economico de Mexicali v. United States and the Pursuit of Environmental Justice in Transboundary Resource Management

Since its construction in 1940, the All-American Canal (AAC) could hardly be considered "All-American." Instead, for over sixty years a substantial portion of the AA C water seeped from the canal into the ground and crossed the border into northern Mexico. In the mid-1990s, the United States Bureau of Reclamation developed a project to replace a portion of the AAC with a parallel, concrete-lined canal, which will prevent this water-seepage loss and recover the water for use by hundreds of thousands of Southern Californians. At the same time, however, the lining project is expected to cut off the water supply to,farmers in the Mexican Valley who have been using the water for irrigation for decades, and will also dry a flow of seepage water that has been sustaining wetlands habitat in the Colorado River Delta. In 2006, a coalition of community and environmental groups in the United States and Mexico brought suit in federal court against the Bureau of Reclamation to halt further construction on the project. Yet their claims were ultimately precluded by a 1944 treaty that fixed the apportionment of Colorado River water between the United States and Mexico and intervening legislation passed in December of 2006 mandating that the project proceed "without delay." The rigid terms of these acts provided no room for the courts to devise a flexible or equitable remedy for those harmed by the unilateral lining project. This Note argues that the disposition of the CDEM litigation, while perhaps proper as a legal matter, is unsatisfying. The material and social investment the people of the Mexican Valley expended on reliance of the seepage water from the AAC, whether or not buttressed by a viable legal claim, should not be so easily disregarded. Instead, bordering nations should develop legal regimes that can adapt to changed circumstances and adjust obligations over time. This would encourage parallel rather than unilateral action by riparian states, and prevent private parties from needing to resort to litigation to advocate for their rights to shared resources.