Catching Nutrients in a Net: Collective Action, Institutional Impediments, and the Mississippi River Watershed

By JONATHAN ROSENBLOOM. Full Text.

Thousands of local governments in the Mississippi River watershed possess regulatory land use authority. From a narrow law and economics standpoint, when these entities extract from, add to, or pollute the watershed, it may appear as a classic tragedy of the commons problem. The tragedy sounds something like this: local governments act “rationally” to avoid regulating in a way that reduces pollution in the waterway because such regulation would increase costs. Further, local governments avoid paying the costs associated with treating or reducing the level of contaminants in the water before ushering them downstream. While this analysis might partially explain local actions, it ignores the existing federal and state regulatory framework in which local governments operate. Local governments’ ability to act in “irrational” ways to protect the Mississippi River watershed is significantly constrained by federal and state regulation.

This Article begins with an overview of the Mississippi River watershed, highlighting its natural resources, increased flooding, and elevated nutrient pollution (such as nitrates) stemming from agricultural runoff. Then, it delves into the role of local governments in the watershed, focusing on their utilization of the resources to supply essential services such as potable water. The Article next examines the federal and state regulations that unintentionally drive local governments toward contributing to a tragedy of the commons, resulting in exacerbating flooding and damaging nutrient overloads within the watershed. This part of the Article scrutinizes the existing jurisprudence governing local governments and the watershed. Considering the Supreme Court’s decisions in West Virginia v. EPA and Sackett v. EPA, which significantly narrowed the scope of federal protection of the environment, and in particular wetland protection, local governments are increasingly tasked with taking proactive measures to address environmental concerns.

The Article concludes by highlighting how local governments can and have effectively bypassed preemption concerns to serve as the primary actor protecting, rehabilitating, and restoring watersheds from nutrient pollution, notwithstanding federal and state legal constraints. The Article provides numerous examples of local land use laws that can be used to safeguard watersheds and protect the health of all species.