WASHINGTON (CN) — The Supreme Court began its 2021 term on Monday, and its first in-person arguments in over a year and a half, looking at what hydrologists call a "cone of depression" caused by a city utility's use of an interstate aquifer.
But it is another first that makes the case so interesting, according to Robin Craig, the Robert C. Packard trustee chair in law at the University of Southern California's Gould School of Law.
“This is really the first time that two states are before the U.S. Supreme Court saying, you know, how do we treat groundwater? Is it like a river, where we know we either do an interstate compact or, if we go to the court, we're asking for equitable apportionment? Or is it something else,” Craig told Courthouse News. “And Mississippi has pretty much against all advice from everyone in just insisting that, no, it's something else.”
Mississippi is seeking $615 million in damages to account for the loss of 252 billion gallons of groundwater that it says Memphis Light, Gas and Water Division siphoned improperly from the Middle Claiborne Aquifer. The dispute is part of a rare class in which only the U.S. Supreme Court has jurisdiction, and a court-appointed special master issued his report on the matter last year, recommending dismissal of Mississippi's case.
An ensuing challenge to that report from Mississippi came as no surprise, but Tennessee lodged objections as well, saying the other state should not be given an opportunity to file an amended complaint.
At oral arguments Monday, equitable apportionment — the doctrine of water law that governs the Supreme Court’s allocation of interstate waters — was a main point of argument for both sides as well as questions from the justices.
“The court should reject the Special Master's conclusion that equitable apportionment is Mississippi’s sole remedy because it's a remedy that addresses the wrong injury,” John Victor Coghlan, deputy solicitor general for Jackson, Mississippi, told the justices. “Mississippi does not claim that defendants are taking more than their fair share of groundwater rather Mississippi's case turns on a different question, do defendants have the right to control groundwater, while it is located within Mississippi sovereign territory.”
Coghlan disagreed when Chief Justice John Roberts said he thought Mississippi’s case argued that equitable apportionment should only be used in cases dealing with interstate waters.
“I think the problem is equitable apportionment redresses a different type of injury,” Coghlan said. “It addresses a case where states are acting entirely within their own sovereign borders, the unnatural taking the waters incurring entirely within a state's sovereign borders. This is different because this is a state crossing the border exercising control over that resource beyond the border.”
Tennessee claims the case must be dismissed because equitable apportionment is the “exclusive remedy” for state water disputes and it does not have a condition on the water’s velocity which it claims Mississippi’s case centers on.
“Mississippi's principal argument and response is that the aquifer water flows slowly, but this Court has never conditioned the application of the equitable apportionment doctrine on water velocity,” David Frederick, who represents Tennessee for the firm Kellogg Hansen in Washington, said during arguments. “Here even Mississippi's expert acknowledged that in predevelopment conditions, more than 37 million gallons of water per day flowed out of Mississippi and into adjoining states.”
Craig, the USC professor, said there are arguments for treating groundwater differently than surface water in these cases, but that Mississippi is not making that case. Rather, the center of Mississippi’s argument is a state sovereign ownership theory that has already been rejected in other natural resource cases.
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