This morning the Supreme Court gave its first opinion in an appeal. It was not in a Texas S.B. 8, as people had expected or predicted. Water was the subject of today’s rare November opinion. Chief Justice Roberts wrote the Court’s November opinion in Mississippi v. Tennessee,Two states resolve a water dispute. It is appropriate. Mississippi v. TennesseeThe first case to be argued in this term was Chief Justice Roberts. He appears to have replaced Justice Ruth Bader Ginsburg, who died earlier. He is the only justice who has written a November opinion on an argued case after OT2014.
This case wasn’t very well known, but it was important as it revealed more about the rights that states enjoy over the groundwater under their lands. Water disputes are quite common between states and can often be very severe. As they say whiskey is meant to be drunk and water for fighting. Climate change is changing precipitation patterns. This could make water access more important and lead to increased water disputes. The assumptions that governed past water agreements and policies are no longer valid (a topic I covered here and here).
This is how Chief Justice Roberts summarised the dispute. Mississippi v. Tennessee:
Memphis, Tennessee’s southwest corner is home to the Mississippi River. Arkansas is the city’s western boundary, while Mississippi marks its southern. One of Memphis’ most important resources is located hundreds of feet below the city: The Middle Claiborne Aquifer. The aquifer was discovered by workers drilling wells for Bohlen-Huse Ice Company in 1886. Since then, Memphis has had an abundance of affordable, clean drinking water thanks to the aquifer.
Mississippi is also under the Middle Claiborne Aquifer. The case started in 2014. Mississippi sued our jurisdiction to have a bill filed against Tennessee. Mississippi claims Tennessee’s water pumping took hundreds of millions of gallons from the Mississippi River. The plaintiff seeks declaratory and injunctive remedies, along with damages of at least $615 millions. The Special Master was appointed to supervise proceedings and we granted Mississippi permission to file its complaint. This Court should dismiss the complaint filed by Mississippi with leave to amend. The report has been issued by the Special Master. Mississippi and Tennessee filed exceptions.
A Special Master’s Report is required because the case was brought under Court’s initial jurisdiction in a dispute between two countries. Because there is no court proceeding to settle questions of fact, the Special Master will often be appointed. So, I have simplified it a bit. The Special Master creates a report which includes recommendations and findings. Next the parties file any objections and the report is sent to the justices. The Special Master in this case was Judge Eugene Siler of U.S. Court of Appeals, Sixth Circuit.
Mississippi’s objections were more prominent in this case because Mississippi challenged the Special Master’s conclusion that groundwater falls under equitable apportionment. Under that, the Court “allocates right to disputed interstate resources” which is not governed or regulated by statute, interstate Compact, or prior Appropriation. The Chief stated, “Equitable allocation aims at fair distribution of water resources between two or more states.” . . . This doctrine claims that all States are entitled to reasonable water use. Internal quotes are omitted.
Even though the Court did not hold equitable apportionment to be applicable to groundwater previously, justices agreed that the Court should apply it to an aquifer that crosses state borders in the same manner that it does to interstate water resources. It makes perfect sense. Groundwater can be treated the same regardless of whether there is a statute or compact that governs it.
You can read more about the opinion (which might be particularly relevant to property lawyers or others with an interest the law governing underground resource law)
Mississippi claims that all groundwater below its surface is under its sovereign control, and equitable apportionment should not be applied. Our view is different. The truth is that each state has complete jurisdiction over all lands and waters within its borders. Kansas v. Colorado, 206 U. S., at 93. This jurisdiction however does not grant the right to “ownership and control” over flowing waters interstate. Wyoming v. Colorado, 259 U. S., at 464. We have thus “consistently rejected” the notion that interstate waterways flowing within a state’s borders could be held in exclusive or unrestricted ownership. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102 (1938). Our past cases generally involved streams and rivers. However, there is no reason to expect a change in this case involving the Middle Claiborne Aquifer. Each State “should respect the interests of the other” when a water resource has been shared among several States. Wyoming v. Colorado, 259 U. S., at 466. Mississippi’s ownership strategy would
Allow an upstream state to cut off all flow to a downstream, which is contrary to equitable apportionment law.
The Court rejected the Special Masters’ recommendation that Mississippi be allowed to file amended complaints, pressing an equitable allocation claim. The Chief was not impressed.
Since Mississippi has never requested it, we are unable to determine whether Mississippi should be allowed such leave. As Mississippi itself emphasizes—literally—it has “Uncertain if equitable apportionment has been requested yet.”
The Chief, being the most senior justice, chose the case. It is fascinating because Mississippi v. TennesseeThis case was most likely the easiest to follow in October’s nine cases. Because there were nine arguments, it is probable that every justice will receive one majority opinion.
The Chief will not likely have any of these high-profile cases, however it could indicate that the Chief wanted to make room for something bigger or more contentious at the November sitting. It is worth noting that the Chief likely decided to file in the case before knowing the Court would take up the S.B.8 matters. The Chief is not expected to be able claim opinion-writing rights in any of these blockbusters unless he is in the majority. While this would have made sense when the Chief was swing justice, it no longer seems to be true.