Is Memphis stealing Mississippi groundwater? Supreme Court seems skeptical.
In the first case of a new annual session, U.S. Supreme Court justices heard allegations that the City of Memphis is essentially stealing groundwater from under the state of Mississippi.
That argument from Mississippi faced skepticism from members of the Supreme Court Oct. 4 in the state's effort to get millions in damages for what it believes is Tennessee's trampling over its sovereignty when it comes to water.
At issue is whether Memphis city government, city-owned utility Memphis Light, Gas and Water, and the state of Tennessee, have been pumping water in a way that has harmed Mississippi and siphoned off the water that was underneath Mississippi. The water in question is in the Claiborne Aquifer — the Memphis Sand aquifer is a region in that aquifer.
Mississippi argues that, essentially, the water underneath the state belongs to it and no other state despite the fact that the aquifer in question is under eight states, not just Mississippi. Mississippi wants its northern neighbor, and Memphis, to pay millions in damages for past pumping of water — damages, that, if awarded, would be a huge financial liability for the city of Memphis.
Mississippi's argument is one that it has made for years and one that several courts have found lacking.
A Special Master, a term for an official appointed by a court to oversee a case and hear arguments, also disagreed with Mississippi's take.
Instead, the Special Master suggested to the high court that the suit be dismissed and the Magnolia State be given the option to file an amendment to its suit alleging that Tennessee's water usage violates what is known as equitable apportionment doctrine — the court's standard for protecting the state's water rights with regard to interstate water resources.
Should groundwater face the same regulations that river water does in the West?
As SCOTUSBLOG explained in an article previewing the arguments, a central legal issue at stake in the case is whether equitable apportionment should apply to groundwater like it has to river water in the American West.
During arguments, Supreme Court justices from across the ideological spectrum pressed John Coghlan, Mississippi's deputy solicitor general, about why equitable apportionment should not apply and why the Claiborne Aquifer, which stretches under multiple states — Alabama, Arkansas, Mississippi, Missouri, Tennessee, Illinois, Kentucky and Louisiana —, should not just be treated as an interstate resource.
Coghlan argued that Memphis' wells, which are within three miles of the Mississippi border, are exercising physical control over water that belongs to Mississippi. The justices kept poking at that assertion and asking about whether the water moves among the states underground (it does).
When Coghlan argued that Memphis wells were changing the aquifer under Mississippi and siphoning water to Tennessee that was under Mississippi, Justice Clarence Thomas, one of the more conservative justices on the court, asked "Couldn't Tennessee make the same argument about you?"
"They certainly could, and we should be held to the same standard, Your Honor. We don't believe that Mississippi is pulling any groundwater or exercising control over groundwater extraterritorially. Certainly, if that was the case, Mississippi should be held to the same standard," Coghlan said.
In response to Thomas, Chief Justice John Roberts and others, Coghlan continued to argue that equitable apportionment did not apply, pushing back against the notion that the aquifer should be regulated as an interstate water resource despite more questions from justices about whether it crossed state lines.
'Whose water is it?'
Justice Stephen Breyer, part of the court's liberal faction, said, "Whose water is it? I don't know. So you have a lot to explain to me and I'll forgive you if you don't."
Coghlan replied to Breyer, "We're not claiming here that Mississippi owns the water in a sense of absolute title to the water. What we're talking about is ...the right to exercise control over the resource while it is within ...the sovereign territory and the borders of Mississippi.
"...What we're saying is Tennessee does not have a right to exercise any control over ... the groundwater while it is within Mississippi."
The office of the U.S. Solicitor General, the nation's attorney who argues before the Supreme Court, argued that equitable apportionment should apply to the Claiborne Aquifer.
Frederick Liu, an assistant to the solicitor general, said, "This Court when confronted with disputes over the allocation of interstate resources, has applied the Doctrine of Equitable Apportionment. That doctrine represents the most sensible way of allocating an interstate resource because it respects the equal sovereignty of the states.
And Mississippi identifies no reason why that doctrine should govern interstate surface water and fish but not the groundwater at issue here. Mississippi's exceptions to the Special Master's report should, therefore, be overruled."
The case is now submitted to the court and awaits a ruling. How quickly the court decides the water dispute could turn on how much agreement there is among the nine justices.
Samuel Hardiman covers Memphis city government and politics for The Commercial Appeal. He can be reached by email at samuel.hardiman@commercialappeal.com or followed on Twitter at @samhardiman.