Robert Moses, the Colorado River, and the tragedy of the anticommons

[T]he anticommons refers to situations where there are numerous overlapping rights holders (or what might also be seen as numerous policy advocacy coalitions) each with some power to veto or block system or operation change. The tragedy emerges when the composite effect of such power prevents significant change in the system.

– Jones, Benjamin A., et al. “Valuation in the anthropocene: exploring options for alternative operations of the Glen Canyon Dam.” Water Resources and Economics 14 (2016)

Wandering the halls of Bally’s in Las Vegas last December, at the annual meeting of the Colorado River Water Users Association, I received a text from a friend with a link to a piece in Politico by Marc Dunkelman about the late New York power broker Robert Moses.

Robert Moses turning models into a reshaped city. Library of Congress. New York World-Telegram & Sun Collection. http://hdl.loc.gov/loc.pnp/cph.3c36079

Dunkelman spins a wonderfully readable tale of New York’s Penn Station, in particular why it is so awful. Because despite everyone knowing this central Manhattan transportation hub needs to be fixed, and lots of people having good ideas about how to do it, and projects to carry them out, Penn Station remains awful:

In a dynamic where so many players can exercise a veto, it’s nearly impossible to move a project forward. No one today has the leverage to do what seems to be best for New York as a whole.

When I bumped into my friend later that day at Bally’s, I shared my puzzlement. Why was I being encouraged to read about Moses and Penn Station?

I have long argued that a robust governance network, both formal and informal, around the management of the Colorado River provides the necessary conditions for managing the problems of the river’s overallocation and the increasingly apparent impacts of climate change. That’s the argument at the heart of my last book, Water is For Fighting Over: And Other Myths About Water in the West

But as we approach the negotiation of the next set of Colorado River management rules – a process already bubbling in the background – it is not hard to see how my thesis could break down. The problem is an institutional structure that has distributed veto power across the Colorado River Basin.

I’ve been thinking a lot about my friend’s “read about Moses” tip in the months since CRWUA.

Moses, the “master builder” of modern New York who famously ran roughshod over – well, over everyone who didn’t agree with his sometimes troubling vision – left in his wake a reaction against such concentrations of power.

The progressive movement that arose in opposition created mechanisms to prevent another Moses from doing Mosesy things. Decades later, as Dunkelman documents, the veto points created to accomplish this reining in of power have made it impossible to fix Penn Station. While everyone agrees that the fixing is needed, lots of people disagree with the specifics of any one proposed fixed. And those people have a veto. So the fixing never gets done.

We have a similar problem in the Colorado River Basin. The river’s water allocation schemes are broken. Eric Kuhn and I spent a good deal of time laying out how that brokenness came about in our new book Science Be Dammed. We spent some time sticking our necks out with some of our ideas about what fixing it might look like. But as the discussions about a new river management ruleset bubble away, it is clear that we’ve got a problem very much like post-Moses New York: lots of people have a veto over any new scheme that we or anyone else might cook up.

The origins of the problem, in New York versus the Colorado River Basin, seem different. Where in New York the distribution of veto power arose in response to harms at Moses’s hands, in the Colorado River Basin the problems were baked in at the start. A federalism that left water management to individual states, combined with a compact that effectively gives each of the seven basin states (and, I guess, the federal government, and probably Mexico, and maybe going forward 29 sovereign Tribal nations, and increasingly an effective environmental community) a veto over any potential fix leaves us with a Penn Station-like gridlock. Here’s how I described the problem five years ago:

The first time I wrote about Terry Fulp, a key manager with the Bureau of Reclamation, I described him as “the closest thing we have to a guy with his hand on the tap that controls the vast plumbing system built over the past century to distribute the Colorado’s waters.” But I have come to realize in the years since I published that line in 2009 that, in reality, no one has their hand on the tap, and nobody has the ability to turn it down. Instead, we’ve built a decentralized system with no one in charge.

When I wrote that, I don’t think I full grasped the corollary – not only is no one in charge, but lots of people have the power to block solutions they don’t like.

After a talk I gave about the new book last week at the University of New Mexico School of Law, a student asked me the obvious question: We don’t we simply proportionally reduce everyone’s allocation to match hydrologic reality?

This of course makes perfect sense. But it is impossible in a system where major parties have deeply held views about fairness and equity and why they should keep their full allocation while those other people in that other place, who have been far less responsible, suffer the burden of shortage. And where the institutional structures effectively give all those parties a veto over such a solution.

University of Michigan legal scholar Michael Heller slapped a wonderful label on the problem some years back – “The Tragedy of the Anticommons“. I’m bending Heller’s original case to apply it here. But the idea of the existence of multiple veto points over solutions to commonly shared problems seems to hold, here and in many many other cases. (There has been a great deal of bending of Heller’s original anticommons idea since he first published it – it’s a pretty rich conceptual framework.)

My University of New Mexico colleagues Bob Berrens and Benjamin Jones are among those who have written about this in the context of Colorado River management (it was Bob some years ago who turned me on to Heller and the “anticommons” literature – Bob and Benjamin were writing the paper I link to at the same time I was writing Water is For Fighting Over):

[T]he anticommons refers to situations where there are numerous overlapping rights holders (or what might also be seen as numerous policy advocacy coalitions) each with some power to veto or block system or operation change. The tragedy emerges when the composite effect of such power prevents significant change in the system, and suboptimal use of limited resources. Like the better-known tragedy of the commons, the tragedy of the anti-commons also represents a coordination problem.

Jones et al (Bob and Benjamin and colleagues) suggest a path forward:

Governance processes for finding pathways through such coordination problems (e.g., to system operation changes), may benefit from improved information about the full range of preferences held across a population and argued in the policy domain. For example, broader system perspectives are more likely to find flexible least-cost alternatives to operational changes.

I don’t have an ending here. I’m not sure where to go with this.

The solution so far has been a series of incremental fixes that have avoided the risk of veto-triggering disputes. Maybe this argues for more of that – more incrementalism, rather than the sort of “grand bargainy thing” some of us have been advocating.

8 Comments

  1. Thanks John for defining the term ‘Anticommon’ – incrementalism appears to be the mode that works, but I’m afraid with climate change we’re basically out of time and yet, we’re stuck taking incremental steps. Maybe we need to take incremental steps a bit faster. The mantra is that a veto on the Colorado River system could end up in the Supreme Court, or some other place, which is the stick that herds the many stakehoders, (Pat Mulroy’s cats), so to speak, in a common direction, forming the backstop for incremental advances.

    “If you want to go fast, go alone. If you want to go far, go together.” —African Proverb

  2. Also–yes–there is no ‘there’ there, regarding the stakeholder community on the Colorado River. Funny, I once asked Terry how he and Bob managed the varying interests and stakeholders on the river, and he referred to a little ‘dance’ that Bob taught him at his stakeholder meetings. And these were the folks who had the Federal delegated authority of water master below Lee Ferry.

  3. I’m a late comer to the River issues. My interest grew out of classes in CMC’s Sustainable Studies program. Hardin’s commons is misunderstood to begin with. But, the rise of agrarian societies made sharing of land and water necessary. “Sharing” means “government” is needed. Agriculture leads to the growth of population. Population growth leads to many trade-offs.

    Our current crisis of diminishing water has happened to previous societies. It would be useful to study their choices.

    The comparison to the Penn Station is apt. The example sheds light on the lack of effective adjustments in the Southwest. In the Hardin example, the allocations of grazing rights works until a drought reduces the amount of grass available; or reduces water to irrigate the grass.

    Reducing the allocations of water to match the available supply is an obvious choice that one comes to after thinking about the problem for just a few minutes; as John’s student did. But in the several years I have been watching (and commenting) I have yet to see one “professional” bring it up. To take it another step, until that reality is dealt with, the rest of the discussions are moot.

    Unfortunately, the “professionals” have their livelihoods involved and are not inclined to take a risk. Like the Penn Station, since it is assumed that the problem can not be solved, nothing is done. But with the river, the consequences of no action will be devastating.

    The “system” needs to agree to let an overriding authority make the decisions that the individuals are incapable of. Either a new entity will be created, or the Federal Government needs to step in and knock heads. As Spock pointed out, the needs of the many outweigh the needs of the few.

    My first suggestion upon hearing of the shortage was, at least in Colorado, to put a price on raw water. British Columbia did. These fees would provide a fund for making efficiency and conservation improvements. And naturally, people take better care of something they pay for. Groundwater has to be included.

    My second suggestion is to face the reality of carrying capacities and stopping new growth in the region. That goes back to
    changing the allocations.

  4. Brooks, Design of Design, Chapter 6, Collaboration in Design:
    https://www.infoq.com/articles/brooks-design-book-review/

    Conceptual integrity or Unity of Concept

    “Modern Design as an Interdisciplinary Negotiation?
    “Many (mostly academic) writers conclude from the high degree of today’s specialization that the nature of design has changed: design today must be done as an “interdisciplinary negotiation” (among the team). The clear implication, though not explicit, is that the team members are peers, and each must be satisfied. NO! If conceptual integrity is the final goal, negotiation among peers is the classic recipe for bloated products! The result is design by committee, where none dare say “No” to another’s suggestion.15

    “A System Architect
    “The most important single way to ensure conceptual integrity in a team design is to empower a single system architect. This person must be competent in the relevant technologies, of course. He must be experienced in the sort of system being designed. Most of all, he must have a clear vision of and for the system and must really care about its conceptual integrity.”

    “The fantasy concept [collaborative design] has no function for originating designs, only refining them. . . . we know the process so well that we have a scornful name for it—committee design. If collaboration tools are designed so they encourage committee design, they will do more harm than good.”

    “If a design, particularly a team design, is to have conceptual integrity, one should name the scarce resource explicitly, track it publicly, control it firmly.”

  5. Thanks for the thoughts John. I just want to take the opportunity to make a plug for Edward Norton and Motherless Brooklyn!

    (You don’t have to officially post this)

  6. After being involved in Colorado River issues for 18 years with the Star of Arizona , there ate several examples were anti-commonism was overcome. These only happened because the Federal government (acting through the Secretary of the Interior and Reclamation) threatened to take action unless the Colorado Basin States developed a mutually agreed upon solution.
    The first example is the Quantification Settlement Agreement which primarily involved California’s taking more than 4.4 million acre-feet in the early 2000s. The Secretary threatened to unilaterally reduce California’s diversions unless the California parities developed their own plan for reducing their use. But all of the other Basin States had input in the process.
    The second example is the 2007 Interim Guidelines for the Coordinated Operations of Lake Powell and Lake Mead. The Secretary saw the declining levels of Lakes Powell and Mead following the low runoff year in 2002. The Secretary strongly urged the Basin States to develop shortage rules for Lake Mead and release rules for Lake Powell. The goal was to try to operate the 2 reservoirs in coordinated fashion. I was involved in the development of the shortage criteria for Lake Mead because their was not any, just a theoritical calculation made by Reclamation. Arizona didn’t want to have the Secretary unilaterally reduce it’s diversions.
    The last example is the adoption of the Drought Contingency Plan. The anti-commonism was overcome not only by the fear of Federal action in reducing diversions, but also by effects of climate change on the Colorado’s River annual flow. Arizona’s instate negotiations were quite tense and stressful because of so many users had a perceived veto power.
    I agree that each of these examples provide incremental changes to how the river is manahed, but they are important.
    We will have to see how renegotiation of the 2007 Interim Guidelines turn out.

  7. For recreational users of inland streams and rivers the phenomenon appears to be that other stakeholders simply ignore the expansive rights established in the past, interfering with public access and use without considering the effect and without refraining from interfering when feasibke, to the extent feasible. This in turn leaves us with unanswered questions as to remedy for failures to meet requirements of the law. An example is the failure of state agencies to reserve fishing rights upon the sale of transfer of state-owned land. Case law says that constitutional requirements will be read into grants, but will courts follow case law, and what will land owners do it dormant public fishing rights come alive?

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