How last week’s Supreme Court water decision could have ripple effects
The U.S. Supreme Court set clear rules last week for how it views the untold gallons of water underneath eight states – the water belongs to every state that relies on it.
For years, Mississippi claimed Tennessee and the city of Memphis were stealing billions of gallons of water from underneath it. The High Court did not buy it.
In a Nov. 22 ruling, Chief Justice John Roberts, writing for a unanimous court, said “The Court rejects Mississippi's contention that it has a sovereign ownership right to all water beneath its surface that precludes application of equitable apportionment.”
That clunky phrase, equitable apportionment, signals a new era for not just how the Middle Claiborne Aquifer will be governed but all interstate aquifers, water law and policy experts said in interviews with The Commercial Appeal last week.
Those same experts said the ruling could open the door to further cooperation among the states that use the Middle Claiborne Aquifer, and, maybe, revive a long-talked-about idea — an interstate compact among the states.
"One thing the U.S. Supreme Court made clear is that equitable apportionment applies to groundwater, which the court had never ruled on before," Jesse Richardson, a water law expert and a law professor at West Virginia University, said in an interview last Tuesday. "I think it matters because now it kind of sets the parameters for relationships between states with respect to those aquifers."
Michael Campana, a hydrology professor at Oregon State University and writer of the Waterwired blog, said Mississippi-tennessee has been watched by water lawyers in the U.S. and overseas for years. If it had gone the other way, he said, it may have prompted various states and jurisdictions to seek cash damages from other entities they shared water with. Instead, it could prompt a change in how groundwater is thought of and managed.
"I think it'll start something good and that [it] will get people being more concerned with groundwater in general, and also making sure that it is divvied up appropriately, not just to protect the resource from unsustainable use but also giving all the states who are involved their fair share," Campana said
Ruling could prompt discussion of a compact
Equitable apportionment has applied to rivers in the American West for decades and has provided a mechanism for a state claiming a real and substantial injury from another state's use of the water, according to SCOTUSBLOG. The state that feels harmed can go before the Supreme Court and make an equitable apportionment claim.
There's a problem with that strategy. It doesn't always work, SCOTUS Blog noted. The High Court does not always side with the state making the claim. To divvy up interstate water without going to the Supreme Court, states have signed compacts that give each state a claim to some of the water.
The ruling on Nov. 22 could put the idea of a compact back on the table for Mississippi, Tennessee and Arkansas, Campana and Sarah Houston, executive director of Protect Our Aquifer, said. Houston noted that before Mississippi sued Tennessee in 2005, there had been some discussion of an interstate compact.
Both Houston and Campana see a compact as means of protecting the aquifer from overuse in the future, a measure that could be essential if drinking water becomes increasingly scarce nationwide and worldwide.
"And as we see, water shortage is happening really across the U.S. across the globe. We live in a very water-rich corner of the globe. And so we need to ensure that we are planning for the long-term trend of water shortages, and how do we ensure that we have water available for all of our local uses," Houston said.
Campana said the ruling opens the door to a possible compact among the states but he and Richardson noted that Tennessee, which is pumping tens of millions of gallons every day, may not have an incentive to curtail its pumping.
But, Campana said the Supreme Court has at least opened the door and offered an opportunity to think about a compact and what it could mean for the future.
"You don't want to worry about water when you're running out of it. You want to worry about it from the beginning so that you don't run out of it or don't use it unsustainably, or you pollute it," he said.
Richardson, for his part, isn't optimistic that Mississippi, Tennessee and other states will reach a compact because of the Supreme Court ruling. He noted how Florida and Georgia haven't come to such an agreement after fighting over water for much of the last decade.
“Maybe this will give states an incentive to reach a compact but I'm very skeptical,” Richardson, the West Virginia law professor and water law expert.
“Compacts are like a point in time and they don't take into account climate change and other changes in circumstances so it seems like states that did enter into compacts, today, there's a little bit of buyer's remorse," he said.
Houston, executive director of Protect Our Aquifer, sees the need for further regulation of the aquifer against overuse and pollution but she's also a realist about whether the states involved will come to the table and actually negotiate one.
"As it states right now, I would be really surprised if one state [or] the other said, it's time to start this massive project with a lot of unknowns. But one thing that's good about doing it in a time when you're not in need and not in stress, there isn't this unneeded pressure. You can actually take the time to work out a lot of intricacies together when there's not some kind of a major crisis," Houston said.