Mary Slosson


Climate change is causing significant, permanent changes to the natural world. In the Colorado River Basin, experts forecast that rising temperatures will cause the spread of a drier, more arid climate across the region. The effects of this desertification are already being felt: less rainfall, the loss of deciduous forests, wildfires that engulf urban areas, and a projected 20 to 30 percent reduction in flows on the Colorado River by mid-century. The net effect is an existential crisis for the forty million people that reside in the Colorado River’s watershed. Mitigating the effects of climate change requires swift action. However, the legal framework that governs the waters of the Colorado River is a web of byzantine agreements that is anything but swift to navigate. This is reflected in a saying common amongst practitioners who specialize in what is known as the Law of the River: the Colorado River is burdened with nineteenth-century water law, twentieth-century infrastructure, and twenty-first century problems. How can a legal governance structure negotiated before climate change was understood adapt to such uncharted waters? This Note explores whether global temperature rises could constitute a force majeure—or Act of God—event that the signatories to the Colorado River Compact could argue releases them from legal obligations made more than a century ago, when climate change was not as foreseeable as it is now. Force majeure is a legal theory that parties can be released from their contractual obligations if an unforeseen and extraordinary event intervenes, making compliance with the terms of the contract impossible. On the Colorado River, future projections of a greatly reduced river mean that the Compact signatories will be at an ever-increasing risk of violating their interstate compact obligations. While the Colorado River Compact has governed for more than one hundred years, it seems impossible that it can govern for one hundred more. A force majeure argument could be the lever necessary for the parties to break free of the rigid compact and pave the way for a more flexible and equitable water management future.