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Tuesday, July 9, 2024 | Back issues
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Feds can block Western water deal, Supreme Court says

With a narrow 5-4 majority, the high court blocked a water agreement made between Texas and New Mexico without the federal government’s blessing.

WASHINGTON (CN) — The federal government can quash a deal between Texas and New Mexico to share water from the Rio Grande, the Supreme Court ruled in a divided and pun-heavy decision on Friday.

Splitting 5-4, the court's majority said states could not agree to such a settlement without the federal government’s approval. 

“Our decision today follows directly from our prior recognition of the United States’ distinct federal interests in the Rio Grande Compact,” which governs water relations between Texas and New Mexico, Justice Ketanji Brown Jackson, a Joe Biden appointee, wrote for the majority. “Having acknowledged those interests, and having allowed the United States to intervene to assert them, we cannot now allow Texas and New Mexico to leave the United States up the river without a paddle.” 

Jackson’s opinion was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. Justice Neil Gorsuch led a dissent joined by Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett. 

Water in the Rio Grande has been fought over for more than a hundred years. The U.S. and Mexico have a deal — known as the Rio Grande Project — governing water usage between the countries.

The river’s interstate neighbors — Texas, New Mexico and Colorado — likewise came up with their own plan, known as the Rio Grande Compact, to divide water between themselves. Congress endorsed that deal in 1938. But in 2013, Texas claimed groundwater pumping by New Mexico was violating the compact, as Texas said the pumping intercepted its share of water.

The federal government moved to join Texas’ suit but was dismissed by a special master. Then, in 2018, the justices ruled in the government’s favor on appeal, finding there were special federal interests in Texas and New Mexico’s water fight. That decision resulted in more years of legal wrangling.

A special master suggested that Texas and New Mexico split from the government and come to their own agreement. The states were able to find common ground, but the federal government claimed the deal needed its blessing.

During oral arguments, some of the justices quipped about returning to the dispute for a second time. 

“Conventional wisdom posits that, because time changes all things, no one can step into the same river twice,” Jackson wrote. “This case may be an exception, though, for the same considerations that convinced us to let the United States intervene six terms ago also lead us to conclude that the United States still has valid Compact claims today.”

Because the fed’s claims are valid and would be disposed of by the consent decree by Texas and New Mexico, Jackson said the states cannot come to a settlement without the federal government’s consent. 

In his dissent, Gorsuch argued that by giving into federal demands, the majority had defied a century of the court’s water jurisprudence. The Donald Trump appointee said the power to control public uses of water was an essential attribute of state sovereignty. 

“The majority defies Congress’s directions and a century of our precedent all in aid of a position that the federal government has never pleaded, one that works against the government’s decades-old, real world interests,” Gorsuch wrote. “And the majority does so even when the consent decree would permit the government to raise any valid, independent claims of its own in a different forum.”

The majority's ruling, Gorsuch predicted, would make states weary of federal intervention in state water disputes. Gorsuch said the decade-old dispute has cost tens of millions of dollars with no end in sight. 

“If, as happened here, even heavily caveated permission to intervene may end up federalizing an interstate dispute, what state (or court) would ever want to risk letting the nose make it under the tent?” Gorsuch wrote. “In that way, too, I fear the majority’s shortsighted decision will only make it harder to secure the kind of cooperation between federal and state authorities reclamation law envisions and many river systems require.” 

Follow @KelseyReichmann
Categories / Appeals, Environment

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