The Solution that Pollutes: Mother Nature Bearing the Costs of our Solution for Water Scarcity

Written By Luke Ilgenfritz ’28

Introduction

In the context of climate change, water insecurity has emerged as a global risk, with an increasing percentage of the global population experiencing water scarcity.¹ A growing number of rivers fail to reach the sea, many of the world’s largest lakes have lost water, wetlands are drying up, and the world’s most used freshwater source, groundwater stored in aquifers, is a finite resource.² Dubbed “Water Bankruptcy” by the United Nations, this crisis has led countries to redevelop and expand the ancient technology of desalination.³ Desalination is a viable solution to water scarcity, and is already relied on by 177 nations globally, including nations in the Middle East for 70-90% of their fresh water supply.⁴ As the international community clamors to construct desalination facilities, international regulation is needed to ensure a cohesive approach that takes the environmental impact of these facilities into consideration.⁵

Background

Desalination is the process of removing salt and other minerals from water, making it suitable for human consumption, irrigation and industrial uses.⁶ There are two main commercial methods for desalination, the first being reverse osmosis, where a high-pressure chamber is used to force salt water through a membrane separating the salt and minerals from the water.⁷ The second is thermal distillation, a process where seawater is heated to the level of evaporating into steam, leaving the salt below, then moved and chilled back into water without the salt.⁸

Many countries around the world, most notably those in the Middle East, already rely heavily on desalination for their population’s fresh water.⁹ Unfortunately, for every gallon of clean, fresh, desalinated water created via reverse osmosis or thermal distillation, an equivalent volume of discharge is created, and often, sent back into the sea.¹⁰ This discharge is comprised of salt, heavy metals and other chemicals involved in the desalination process, which coagulates into a dense, hyper-saline mixture that sinks and settles on the ocean floor.¹¹ This briny discharge can disrupt marine life, raise seawater salinity levels, and in some instances, raise seawater temperatures.¹² With nations worldwide seeking to increase freshwater production via desalination and stabilize their water economies, the international community must enact legal guardrails to mitigate the inevitable increase in production of desalination facilities.¹³ The most effective approach is to amend the United Nations Convention on the Law of the Sea (UNCLOS) to require member states to conduct an Environmental Impact Assessment (EIA) for any coastal construction and implement an Environmental Monitoring Plan (EMP) during operation of a desalination facility.¹⁴

Analysis

UNCLOS is the ocean’s constitution. It governs any activities on and around the ocean, including right of way, rights to natural resources, matters of sovereignty, defense activities, shipping rights, pollution, and more.¹⁵ Part XII of UNCLOS says that “states have the obligation to protect and preserve the marine environment.”¹⁶ Further, Article 207 imposes an obligation on member states to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.”¹⁷ However, UNCLOS uses passive and nonbinding language in its instruction for environmental observation.¹⁸ The bar for when states are obligated to formally consider any adverse environmental impacts of a development is also vague.¹⁹ The mechanism used to determine the environmental impact of a project is an EIA, which is a study that takes into account all potential environmental impacts of a proposed construction project.²⁰ In addition to identifying potentially adverse environmental impacts, EIAs consider alternative approaches and mitigation techniques that are later suggested in an Environmental Monitoring Plan (EMP).²¹

Negotiations for the UNCLOS treaty began in 1973, terms were adopted in 1982 and it finally came to force in 1994.²² While the convention has mechanisms to help facilitate sharing of marine technology and research among member states, Part XII provides no specific direction of how to analyze emerging pollution threats.²³ As a result, when emerging technologies around the globe have environmental or economic impact, scholars attempt to fit them into an existing bucket of the UNCLOS framework.²⁴ The briny discharge from desalination has been understood as pollution to be regulated by various articles in Part XII, including Articles 192, 194, 206, and 207.²⁵ However, as previously mentioned, the pollution requirements are loose.²⁶ Article 206 requires environmental assessment when states have “reasonable grounds” to believe that activities planned may cause substantial pollution, but still only requires this assessment when practicable.²⁷ This practicability standard leaves room for states and corporations to build desalination plants without any environmental assessment and opens the door for the argument that when fresh water is scarce, waiting to complete an EIA may not be practicable.²⁸

Conclusion

The lack of an enforceable environmental requirement has led to a disorganized and non-uniform approach to handling briny discharge.²⁹ To address the indisputable impending expansion of desalination plants globally,³⁰ states must pass laws that require EIAs and EMPs with their construction. The best way to implement this requirement, with the broadest global reach, is to amend UNCLOS. Although many states already require EIAs, unless required uniformly, with the growing demand for desalinated fresh water,³¹ environmental harm will also grow, which could present a disruption to sea life that may ultimately result in desalination causing more harm than good.³²

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