New Mexico Prevails Over Texas in Supreme Court Water Clash (3)

Dec. 14, 2020, 3:09 PMUpdated: Dec. 14, 2020, 11:54 PM

The U.S. Supreme Court sided with New Mexico on Monday in a long-running dispute over how the state shares water with its downstream neighbor Texas—the latest in what’s expected to be a surge of interstate water conflicts on the high court’s docket.

The justices rejected Texas’s arguments that New Mexico got too much credit for Pecos River water deliveries to Texas during a period of heavy rains and flooding from a major storm in 2014. Legal scholars expect more interstate water wars to land on the docket as climate change stresses water supplies, and old agreements prove ill-equipped to address the changing circumstances.

New Mexico and Texas disagreed over whether a court-appointed “river master” misapplied the 70-year-old Pecos River Compact in 2018 when it credited New Mexico for water held in a federal Bureau of Reclamation reservoir that was ultimately lost to evaporation. The court heard oral arguments by phone Oct. 5, the first day of its 2020-2021 term.

“The water was stored in New Mexico at the request of Texas,” Justice Brett Kavanaugh wrote. “Some of the water then evaporated before it was released to Texas. Under those circumstances, as the River Master correctly concluded, New Mexico is entitled to delivery credit for the evaporated water. That result is both legally accurate and entirely fair.”

All other members of the court joined in Kavanaugh’s opinion except Justice Samuel Alito, who concurred in part and dissented in part, and Justice Amy Coney Barrett, who didn’t participate in the case. Alito said he would have scrapped the river master’s conclusion and instructed the official to take a closer look at how to allocate credits for the evaporated water.

‘Pragmatic Approach’

The Pecos River runs more than 900 miles from northern New Mexico to western Texas, and has been a recurring feature on the Supreme Court’s docket since 1960, with the justices periodically reviewing disputes over annual water credit calculations for the states.

“We’re pleased that the Supreme Court affirmed the decision of the River Master in favor of New Mexico,” State Engineer John D’Antonio said in a statement. “Through the hard work of many stakeholders, we have accumulated a substantial compact credit, and we will continue to ensure that New Mexico meets its obligations under the Pecos River Compact.”

The Texas attorney general’s office, which argued the case for the Lone Star State, said it was disappointed by the ruling but ready to move forward.

“Although we are disappointed with the result from the Court, we look forward to continuing our collaborative work with New Mexico in administering the Pecos River Compact going forward,” press secretary Kayleigh Date said in an email.

The near consensus in the Supreme Court’s ruling “reflects how the Court usually resolves interstate water disputes by applying a pragmatic approach that looks at the underlying fairness of the master’s decision without the Justices dividing along sharp ideological lines,” University of Maryland environmental law professor Robert Percival said in an email.

‘Negotiate on the Fly’

The court’s “common-sense” reading, rather than a “hyper-technical contract negotiation” approach, will help with future state-versus-state disputes, said University of Utah law professor Robin Kundis Craig, who tracks water litigation.

The justices embraced the two states’ plan for dealing with the 2014 storm’s impacts, and rejected Texas’s subsequent attempt to penalize New Mexico for the arrangement—signaling to other states that it’s OK to “negotiate on the fly” during emergencies, she said.

“It bodes well for the realities of Western water in the future, and that we can work within compact language to deal with emergencies and give that on-the-ground flexibility,” she said.

The decision also highlights the justices’ reluctance to overrule the river masters and special masters who handle the day-to-day drama of original jurisdiction cases, Pacific Legal Foundation attorney Anthony Francois said.

“If you’re going to come to us and ask us to unwind what the river master’s done, it better be really good, and this is not really good,” he said, summarizing the court’s approach to Texas v. New Mexico.

Second Texas Loss in Days

The dispute between the two states is a rare original jurisdiction case that goes straight to the high court rather than working its way through lower courts first.

The Supreme Court’s ruling comes just days after the justices rejected another attempted original jurisdiction case from Texas: its bid to nullify the presidential election results in four other states.

“Texas obviously hasn’t been having a good week with the court,” Craig said.

The court is set to hear another water case, Florida v. Georgia, later this term, and a separate dispute is brewing between Mississippi and Tennessee over groundwater.

The case is Texas v. New Mexico, U.S., No. 22O65.

(Adds Texas comment in second section.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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