Abstract

Many observers look to water marketing as the primary tool to meet new needs for water in the West and to bring an end to the most environmentally damaging water uses. In this provocative Essay, Professor Eric Freyfogle takes issue with this view, on grounds of economics, ecology, and ethics. Because of externalities and other systemic flaws, he argues, water markets offer little promise of bringing about efficient water-use practices. As importantly, market reasoning perpetuates the misguided view that nature is merely a collection of resources, existing chiefly to serve human needs and easily shifted from place to place. Because it sanctions such ecologically damaging water uses, prior appropriation law now faces a mounting crisis of moral legitimacy. To deal with that crisis and bring water law up to date, lawmakers must put meaning into the beneficial-use requirement; they must insist that water users become responsible members of the natural and human communities of which they are a part.