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Water Wars at the Supreme Court: ‘It’s Only Going to Get Worse’

Sept. 17, 2020, 5:16 PM

The U.S. Supreme Court kicks off its new term next month with a unique “original jurisdiction” water dispute—the likes of which could become more common as the climate changes.

The justices are set to hear Texas v. New Mexico, virtually, on their first day of oral arguments Oct. 5. Original jurisdiction cases go straight to the high court, rather than working their way through lower benches first.

State showdowns over shared water resources are some of the most common cases to take that direct route to the Supreme Court.

“The tradition has been the justices are not enthusiastic about hearing these cases because they involve such highly technical issues,” said University of Maryland law professor Robert Percival, who tracks environmental issues at the high court.

But scholars say the court will have to get used to wading into interstate water conflicts more often, as climate change triggers extreme weather and stresses shared resources.

“We have now the modern-day equivalent of water wars, and it’s only going to get worse,” Percival said.

Here’s how original jurisdiction water cases work, what’s at stake this term, and what’s on the horizon.

How do such cases work?

Under the U.S. Constitution, disputes involving ambassadors, public ministers, and states can go directly to the Supreme Court under its original jurisdiction. Federal law stipulates that the justices have original and exclusive jurisdiction over controversies between two or more states.

Today, those state squabbles typically feature conflicts over boundaries, water rights, and interstate commerce. A state seeking to sue another in the high court must first get permission, which the justices sometimes deny (though some have questioned their authority to do that).

For complaints that proceed, the Supreme Court appoints a “special master” who oversees day-to-day proceedings and recommends decisions that the justices ultimately review.

Do water disputes often go this route?

Interstate water wars are some of the most common original jurisdiction cases, with at least a few disputes brewing at any one time. They generally present a classic state-versus-state legal question for the Supreme Court to resolve: How do two or more states share one limited source of water?

Many cases that originate in the West center on disagreement over how to interpret or apply existing water compacts that divvy up shares of a single source. Other cases, especially those between Eastern states, involve water sources that aren’t subject to a compact.

Some of the disputes are one-offs, while others linger for decades—with a special master reviewing recurring discord over annual water-sharing calculations, and the justices periodically stepping in to resolve matters.

“Some of them are kind of, ‘We have one controversy, and when that’s resolved we’ll go away for a while,’” University of Utah professor Robin Kundis Craig said. “And some of them, like the Pecos River, are just perpetually in conflict.”

The Supreme Court heard oral arguments related to the Pecos River three different times in the 1980s, and is now preparing to settle the latest showdown in Texas v. New Mexico.

What’s on deck in Texas v. New Mexico?

Set for argument next month, Texas v. New Mexico involves the 1949 Pecos River Compact, which governs how the two states share water from the Pecos River, which runs more than 900 miles from northern New Mexico to western Texas.

The Supreme Court must decide whether a “river master” in charge of annual calculations gave New Mexico too much credit for water deliveries to Texas during a period of heavy rains and flooding from a major storm in 2014—when New Mexico stored water for its neighbor but ultimately lost some of it to evaporation.

The United States will argue as a friend-of-the-court supporting New Mexico in the case. The Bureau of Reclamation runs the New Mexico reservoir that held the water.

Does the case have broader impacts?

The dispute is an example of increasingly familiar situations in which decades-old water compacts don’t adequately account for population growth, economic shifts, and decreased rainfall and water storage capabilities, K&L Gates attorneys said in a recent analysis.

“As a result, these interstate compacts appear to be sometimes causing more disagreement than resolution,” attorneys Molly K. Barker, Natalie J. Reid, and Alyssa A. Moir wrote.

The Pecos River case will test the justices’ willingness to read water compacts strictly or flexibly, and to account for extreme weather and other changing circumstances, Craig said.

“It’s going to be interesting for seeing how the court tries to interpret these very old compacts in these situations that weren’t part of the bargain that states were initially striking,” she said.

How about Florida v. Georgia?

Court watchers expect the justices to schedule arguments in Florida v. Georgia later in the term to settle a long dispute over the Apalachicola-Chattahoochee-Flint River Basin.

Florida and the oyster industry want to ensure the flow of freshwater into the beleaguered Apalachicola Bay by capping water usage by Georgia businesses and agricultural interests. Meanwhile, Georgia blames the collapse of the bay’s oyster population on Florida’s management of the fishery and on droughts.

A special master last year determined there’s no “clear and convincing evidence” that Georgia’s water usage damaged Florida’s oyster industry. Florida disagrees, saying it’s entitled to an equitable apportionment of water in the basin to protect its ecology and resources that depend on the water.

“These flows are essential to the Apalachicola River and Bay, and Florida will remain steadfast in our commitment to protecting it,” Florida Department of Environmental Protection press secretary Weesam Khoury said in an email.

What are that case’s broader impacts?

A ruling favoring Georgia would “set the bar so high for an equitable apportionment that it would effectively invite States to raid water as it passes through their borders” regardless of long-term regional consequences, Florida argued in a July 27 filing.

“This case could really set the tone for whether downstream states in the East have any legal ammunition at all,” said Craig, adding that more southeastern states are likely to see conflict as their hydrological conditions change.

A ruling against Florida could shift waters traditionally managed as public resources toward being managed as private resource rights, Julie Wraithmell, the executive director for Audubon Florida, said. The National Audubon Society joined other environmental groups in filing an amicus brief supporting Florida in the case.

“We have Eastern water law in Florida and Georgia. Suggesting that Georgia can deprive downstream neighbors of their water sounds a lot more Western,” Wraithmell said, referring to the first-come, first-served approach common in the West. “I don’t think the state is unwarranted in raising that concern.”

Georgia Attorney General Chris Carr (R) doesn’t comment on pending litigation, spokeswoman Katie Byrd said in an email.

What about future water disputes at the Supreme Court?

Two other interstate water cases are brewing before special masters, and could land on the Supreme Court’s calendar in a future term.

Texas is going up against both New Mexico and Colorado in a dispute over the Rio Grande Compact and how it treats groundwater that’s connected to the river. Mississippi and Tennessee are also fighting about groundwater in a closely watched case involving the states’ rights to a shared aquifer.

The cases are of particular interest as climate change affects water availability, University of Maryland’s Percival said.

“As climate change increases droughts and makes surface water increasingly scarce,” he said, “groundwater is where cities and states are increasingly turning for their water resources.”

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

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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