An Evolutionary Theory of Administrative Law

Southern Methodist University | May 25th, 2018

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a jud

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last 35 years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law.

Applying the Public Trust Doctrine to River Protection

California Department of Water Resources (DWR) | June 9th, 2004

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air,

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea.” In medieval England this notion was picked up and turned into a declaration that the shores of the sea are common to all and inalienable. The concept was adopted in the United States. As early as 1821, a New Jersey court held that the state could not convey into private ownership the public lands covered by tidal waters, and that any grant purporting to do so was void. These waters are vested in the sovereign state, the court held, not for its own use, but for the use of its citizens for “passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products...” Arnold v. Mundy, 6 N.J.L. 1 (1821). Although the legislature may build dams, locks and bridges in the general interest of improving navigation, the court stated, “they may not consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.” That, said the Chief Justice, would be a grievance “which never could be long borne by a free people.” Id at 78. The public trust, like the ten commandments, has traditionally been phrased in terms of prohibition: “Thou shalt not abdicate the State’s control over its navigable waters.” More recently, however, this hoary common law creature, with roots in the civil laws of the Roman emperors, the English monarchs and the Spanish kings, has emerged from its long submerged home to impose new protections for the environment and new duties on governmental agencies.

Appropriative Water Rights in California: Background and Issues

California State Water Resources Control Board (SWRCB) | May 1st, 1977

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTEN

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTENTS I. Introduction II. Historical Background of Appropriative Rights III.  The Mechanics of Prior Appropriation IV.  Statements of Water Diversion and Use V.  Disputes Over Rights to Water VI.  Enforcement VII.  Loss of Appropriative Rights VIII.  Criticisms of Prior Appropriation Doctrine IX.  Water Use Planning and Allocation Issues  

Arizona v. California

United States Supreme Court | March 9th, 1964

Assembly Bill 1337

State of California Office of Legislative Counsel | February 16th, 2023

Assembly Bill No. 2108, Chapter 347, An act to add Sections 189.7 and 13149.2 to the Water Code, relating to water

State of California Office of Legislative Counsel | September 16th, 2022

Authority and Effectiveness of the State Water Resources Control Board

Delta Vision Blue Ribbon Task Force (Delta Vision) | July 1st, 2008

This report addresses issues related to the effectiveness of the California State Water Resources Control Board (“State Board” or “Board”) in carrying out its rol

This report addresses issues related to the effectiveness of the California State Water Resources Control Board (“State Board” or “Board”) in carrying out its roles and responsibilities, with particular reference to the Sacramento-San Joaquin San Francisco Bay-Delta (“Delta”). Section 1 presents an overview and evaluation of the authority and responsibility of the State Board. Section 2 describes actions of the State Board over many years in connection with the Delta, and in summary form, the Mono Lake basin and the Yuba River. Based on the preceding sections, Section 3 evaluates the effectiveness of the Board with particular reference to the Delta and sets forth some observations related to the Board’s authority and effectiveness.

Beneath the Surface

Environmental Defense Fund (EDF) | November 1st, 2020

In a state where water is a limited and vital resource, it is imperative to wade into the difficult issues associated with groundwater management in Texas. More specifica

In a state where water is a limited and vital resource, it is imperative to wade into the difficult issues associated with groundwater management in Texas. More specifically, this report, with the input of a diverse group of experienced professionals, provides an overview of the groundwater landscape in Texas, describing some of its key features, and then identifying five of the most important challenges to holistic, proactive groundwater management for Texas.  To set the stage for the groundwater scenario, we list and briefly discuss some key features of Texas groundwater: 1) it is private property; 2) it is primarily managed by groundwater conservation districts; 3) its levels are declining; 4) its legal regime is not the same as the laws governing surface water; 5) it is viewed as an extractable and transferable resource; and 6) its current management framework is challenged. These aspects of Texas groundwater raise interesting and often difficult questions at many levels, in a wide range of settings, from a wide range of perspectives. Landowners; companies in search of a water supply for various purposes; water utilities; private well owners; groundwater conservation districts; river authorities; regional water planning groups; agricultural irrigators; conservation interests; municipal and industrial water suppliers and users; state agencies; government officials; policy makers; legislators; and many others are looking for answers to the questions that persist for Texas groundwater – the source of about 60% of the state’s annual water use.  This document presents five of the major challenges to groundwater management in Texas that have been identified for further consideration and review, then briefly describes each of the five issues presented. Along with background information, the document sets out various perspectives on the issue, provides information on recent or pending litigation, and presents information on the handling of the issue in past sessions of the Texas Legislature.  The first issue presented discusses the challenges related to regulating privately owned, yet shared, groundwater. In the 2012 case Edwards Aquifer Authority v. Day (“Day”), the Texas Supreme Court held that landowners own their groundwater in place.1 The Supreme Court described how one purpose of groundwater regulation, similar to oil and gas, is to afford a landowner his fair share of the groundwater beneath his property. But the court also stated that landowners are subject to reasonable regulation by Groundwater Conservation Districts (GCDs). The legal uncertainty over what “fair share” and “reasonable regulation” mean is upending current groundwater regulation as the districts struggle to allocate groundwater resources under this relatively new holding.  Next, the document discusses the challenges related to groundwater management at the GCD level. GCD critics argue that it is difficult for GCDs to effectively manage groundwater in a fragmented regulatory structure. Proponents of local management of groundwater, however, argue that local control ensures representation of community values and concerns and recognition of hydrogeologic conditions specific to a district’s jurisdiction. The reality is that it can be challenging for GCDs to manage groundwater with actual and threatened litigation increasing and without sufficient funding and science to support their responsibilities under the Water Code.  Third, the challenges associated with groundwater and surface water interactions are presented. Despite the hydrogeological relationship between groundwater and surface water in some areas of the state, Texas water law and policy are often implemented in a fashion that fails to adequately recognize this connection. The absence of a framework for conjunctively managing groundwater and surface water may adversely affect both groundwater and surface water resources.  Fourth, the document describes the challenges related to sustainable management of groundwater. Texas groundwater statutes set the guiding terms for how local GCDs and groundwater management areas (GMAs) set management goals. Recent changes to those laws, and ongoing disputes about how much groundwater can or should be removed from an aquifer, have arguably moved the law away from sustainable management goals and toward maximizing groundwater withdrawals.  Next, there is a discussion of the challenges associated with the marketing and exporting of groundwater. With growing populations, some utilities and cities in search of additional water supplies are turning to importing groundwater from rural areas of Texas. The existing and proposed large-scale marketing and export of groundwater is generating a variety of conflicts, pitting rural interests against urban, potentially threatening the economies, property rights, and ecology of rural areas from where groundwater is exported, and creating regulatory and political challenges for local GCDs.  Finally, there is a brief discussion of a number of additional issues related to groundwater management in Texas, such as aquifer storage and recovery, brackish groundwater desalination, abandoned wells, and transboundary aquifers. 

Boulder Canyon Project Agreement: Requesting Apportionment of California’s Share of the Waters of the Colorado River among the Applicants in the State

U.S. Bureau of Reclamation (USBR) | August 18th, 1931

Bring Back the Kern et al vs. the City of Bakersfield

Superior Court of California, County of Kern | February 5th, 2024