Can declaring a human right to water help address affordability?

Something extraordinary is unfolding in California.

In 2012, to great fanfare, California governor Jerry Brown signed into law Assembly Bill 685, which amended the state’s water code to declare that: “every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.” The move was lauded by environmental justice advocates. One United Nations official gushed that AB685 would “…be an inspiration not only for other states within the USA, but equally for many other countries in the world.”

The declaration drew little notice among America’s water utility managers.

Thing is, California isn’t the first state to declare a human right to water in law. Pennsylvania and Massachusetts enshrined a right to water in their state Constitutions—in 1971 and 1972, respectively. Those declarations of rights didn’t translate into safe, clean, and affordable water for all the citizens of those states.  I’ve always been a bit uneasy about declarations of a human right to water. That’s not because I have any philosophical objection to the idea, but because declaring rights is a lot easier than making those rights meaningful to real people in real communities.

Cheap talk

Game theorists sometimes use “signaling models” to describe political behavior. In these models, people signal their intentions to other people. When those signals are costless to send and non-binding to the sender, the signals are “cheap talk.” When players learn that political words are meaningless, they can fall into a babbling equilibrium, in which political actors simply talk past each other, knowing that no one else’s words mean anything.

The trouble with cheap talk is that it doesn’t advance constructive public policy. Worse yet, it breeds cynicism. Their constitutional right to “pure water” is little solace to the people of rural Pennsylvania whose drinking water has been contaminated by hydrofracking. Utility managers are unlikely to take seriously mere rhetorical flourishes.

Is there any reason to think things will be different in California? Maybe.

Costly signals

Game theory also hints at when political signals augur meaningful policy changes: when political signals are costly to send and are accompanied by binding conditions, they indicate that real changes are likely to follow. That’s why the really exciting development isn’t AB685’s declaration of a human right to water, but rather AB401. This decidedly less sexy 2015 law ordered the California State Water Resources Control Board (SWRCB) to craft a statewide water affordability rate assistance program. That’s a first step—but a meaningful one—on the road to a comprehensive affordability policy. It’s not an affordability solution, but it is a costly signal.

The magic combination of vision with resources recalls the 1972 Clean Water Act, which combined the lofty goal of fishable and swimmable American waters by 1983 with a comprehensive regulatory regime and tens of billions of dollars in federal funding to support construction of wastewater systems. While far from perfect, the Clean Water Act has been enormously successful in cleaning the nation’s waters—because Congressional aspirations were matched with administrative authority and ample funding. The Clean Water Act didn’t emerge fully-formed from Earth Day 1970; it was the culmination of years of development.

“Campaign in poetry, govern in prose.” –Mario Cuomo

The unglamorous task of making AB685’s rhetoric into reality falls to the bureaucracy. The SWRCB has been working to craft policies to assess and address water affordability pursuant to AB401. To that end, tomorrow I’ll be in Sacramento to participate in a SWRCB symposium on water affordability—an early step in the state’s effort to turn the poetry of rights into the prose of guidelines, analysis, rules, regulations, and programs. I’m excited to be a part of this extraordinary effort to put a compelling affordability plan in front of the legislature.

*This post was inspired in part by an interesting twitter exchange with Mike Antos, Laura Feinstein, and Mark Lubell.