SCOTUS Skeptical of Mississippi Claims in Water Dispute (1)

Oct. 4, 2021, 4:09 PMUpdated: Oct. 4, 2021, 5:31 PM

Supreme Court justices on Monday cast doubt on Mississippi’s claim for damages in a closely watched dispute with profound implications for how states manage natural resources nationwide.

The outcome in Mississippi v. Tennessee could lead the high court to include interstate groundwater in equitable apportionment—the standard process by which it divvies up shared water resources—or trigger more fights among states over groundwater ownership.

The justices questioned whether the dispute may be better left to interstate compacts or Congress to resolve instead of wading into common interstate water disputes.

The case involves one state reaching across another state’s border and encroaching on its sovereign territory, said John Victor Coghlan, an attorney in the Mississippi Attorney General’s office, argued before the court.

“You can see, don’t you, that the aquifer crosses the border into Tennessee?” countered Chief Justice John Roberts.

“Tennessee is acting extraterritorially and usurping Mississippi’s sovereignty over water within its borders,” Coghlan said later.

After Justice Neil Gorsuch questioned whether the case is appropriate for the Supreme Court’s original jurisdiction, Justice Stephen Breyer said he worried that the case will lead to states suing each other over interstate water issues that have only rarely reached the high court’s bench.

“I mean, there’s groundwater under every state. I mean, every state will start suing each other, except for maybe Hawaii or Alaska. And we haven’t seen a lot of cases like that,” Breyer said. “Maybe it’s better left to compacts or to Congress?”

Contesting Utility

Mississippi, which brought its original jurisdiction case to the Supreme Court in 2014, is contesting a Memphis utility’s pumping of an interstate aquifer spanning the region following years of litigation in lower courts.

Mississippi claims that Tennessee’s pumping is vacuuming slow-moving underground water into the Memphis area that could not occur naturally, increasing costs of Mississippi’s water pumping.

The water naturally accumulated in Mississippi and wouldn’t naturally have moved into Tennessee but for the pumping, the state argued. It seeks more than $615 million in damages because it claims the aquifer water “is not a shared resource.”

A court-appointed special master earlier ruled that Mississippi should have pursued a claim for equitable apportionment. Mississippi claims the special master ignored constitutional principles of state sovereignty and misinterpreted legal precedent.

A Shared Resource

The justices appeared to have a difficult time understanding how water underlying both states isn’t a shared resource over which disputes couldn’t be resolved using equitable apportionment.

“What is your argument for treating the groundwater differently” than surface water? Justice Amy Coney Barrett asked Coghlan. “Is it the speed with which the water moves that matters here?”

Coghlan said groundwater, surface water and other interstate resources should be treated the same. But he said later that the central issue is the degree to which Tennessee is unnaturally damaging Mississippi’s resources.

“Tennessee is acting entirely within its own borders,” said Justice Elena Kagan. “It is having effects on Mississippi, but that’s the case if someone is using a flowing river. Why is that different?”

“Tennessee is acting entirely within its own borders, but this pumping is creating an unnaturral area of effect that is predictable, measureable and controllable,” Coghlan said.

“We turn to equitable apportionment to deal with that,” Kagan said.

Roberts said water is an interstate resource and equitable apportionment is the remedy for disputes under legal precedent.

Questions of Volume

Mississippi’s claim for damages must be dismissed because the state hasn’t suffered due to Memphis’s pumping, said David C. Frederick, a partner at Kellogg Hansen Todd Figel & Frederick PLLC, who is representing the city of Memphis.

The aquifer’s water volume is greater in Memphis and hasn’t changed much in Mississippi over the last century even as Mississippi has increased its own pumping dramatically, Frederick said.

Equitable apportionment is about sharing resources between states when they are scarce, he said.

“The question ought to be, is there scarcity, and if there’s scarcity, is there a doctrine that calls for conservation?” Frederick said. “They’re entire gambit here is to get Tennessee to pay them hundreds of millions of dollars. They do not claim that Tennessee has taken more than its fair share.”

He said the correct disposition would be to dismiss Mississippi’s claim with prejudice.

Mississippi has been seeking damages for more than 16 years in two lower courts, Justice Sonya Sotomayor said, questioning Coghlan.

“Both courts told you you’ve got to seek equitable apportionment. Now this is the third time you’ve done this. When is enough enough?” Sotomayor asked Coghlan. “When should you be stopped from amending and seeking equitable apportionment?”

Coghlan said equitable apportionment is the wrong remedy, which “doesn’t address injury over soverign control of water.”

“Tennessee continues to pull groundwater out of Mississippi,” Coghlan said.

Is it Really Water?

Roberts and Barrett questioned Frederick about the science of underground water, wondering if water in aquifers mixed with silt, sand, and minerals is actually water at all.

“Why should we view it as like our interstate water cases?” Roberts said. “It’s an unnatural operation of pumping. Before that, you’d just call it silt.”

“It is water because it’s some of the finest water that anyone can drink the U.S.,” Frederick said. “It is very pure and it is delicious, and I would urge the court to consider the aquifer, just because it is mixed with sediment, does not distinguish what it actually is.”

Barrett asked if minerals alone have been subject to equitable apportionment.

“No,” Frederick said.

Biden Sides with Tennessee

The Biden administration has sided with Tennessee, saying the contested groundwater is an interstate resource that triggers the equitable apportionment process.

A bipartisan group of states also sided with Tennessee in an April amicus brief, saying Mississippi’s demand for damages sidesteps the normal legal process for deciding whether one state has an obligation to manage its resources in a certain way.

“If states can be liable for damages even without a known duty to another state, then they cannot plan for the future or effectively regulate natural resources use within their borders,” Colorado Attorney General Phil Weiser (D) wrote on behalf of eight states.

The case is: Mississippi v Tennessee, U.S., No. 22O143, oral arguments 10/4/21

(Adds comments from Justice Stephen Breyer beginning in the seventh paragraph.)

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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