WASHINGTON (CN) — The federal government’s objection to a water deal between Texas and New Mexico had some Supreme Court justices questioning why they gave it authority over the deal in the first place.
“Counsel, you’re making me regret that decision,” Justice Neil Gorsuch, a Trump appointee, said during oral arguments Wednesday.
Gorsuch was referring to a 2018 ruling in which the high court said the federal government had special interests in Texas and New Mexico’s fight over water from the Rio Grande.
The Rio Grande begins in Colorado, winding through New Mexico and Texas before reaching the border and emptying into the Gulf of Mexico. The irregular flow of the river has led to disputes over how the scarce resource should be divided between the states and the U.S. and Mexico.
In 1906, the U.S. and Mexico came to an agreement — known as the Rio Grande Project — that required the U.S. to build a dam in New Mexico to store and equitably distribute this shared water.
Some three decades later, Texas, New Mexico and Colorado came to their own agreement to divide the Rio Grande’s water between the three states.
The current water fight before the court began only a decade ago, however. In 2013, Texas accused New Mexico of failing to meet its obligations under the agreement. The Lone Star State accused New Mexico of allowing too much groundwater pumping, intercepting Texas’ share of water.
The federal government had similar concerns and joined Texas’ complaint. A court-appointed special master wanted to dismiss the government’s claims, but the Supreme Court stepped in.
Gorsuch said the decision to allow the federal government to join the suit was based on the understanding that Texas and the U.S. had the same claims. He questioned why the federal government was now objecting to a deal that settled Texas’ concerns.
After the Supreme Court said the federal government could join the states’ water dispute, lengthy negotiations took place to try to agree on water distribution. The special master suggested that the states should come to their own deal, without the government.
While the states found common ground, the government said its concerns have not been met.
Frederick Liu, the assistant to the solicitor general at the Justice Department, told the Supreme Court that the new deal does not address groundwater pumping that would take water from the Rio Grande Project. Liu argued the new deal would not support the project and therefore violated the states’ original compact.
Gorsuch was not the only justice skeptical of the government’s attempt to block the deal. Justice Clarence Thomas, a George H.W. Bush appointee, said the U.S. was making an “apocalyptic argument” that they had not made before.
Multiple justices questioned if the case should even be before the court at this stage or if a lower court should be reviewing the government’s claims. Gorsuch said the government was asking the court to dramatically expand its original jurisdiction.
Lanora Pettit, Texas’ principal deputy solicitor general, said none of the claims the U.S. brought “holds water,” and that the government had conflated the Rio Grande Project with the states’ compact.
Justice Sonia Sotomayor, a Barack Obama appointee, appeared more receptive to the government’s claims. She said the U.S. could not have imagined that Texas would abandon some of their shared claims. While compacts are agreements between states, Sotomayor said they also must have the consent of all involved parties.
“What you’re saying is this agreement is going to violate the terms of the consent decree,” Sotomayor said.
Justice Elena Kagan, an Obama appointee, said the government’s interests were intertwined with the states’ because how the states divide water impacts U.S. treaty obligations.
“This is a compact the federal government is right in the middle of,” Kagan said.
The court will issue a ruling by the end of June.
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