WASHINGTON (CN) — The Supreme Court handed a unanimous win to Tennessee on Monday morning in the first ruling of the term, a dispute over groundwater between the state and its neighbor, Mississippi.
Sixteen years in the making, the dispute over groundwater went before the Supreme Court in October — the first time that has ever occurred. The case surrounds what hydrologists call a "cone of depression" caused by Tennessee’s use of an interstate aquifer, which Mississippi claims caused $615 million in damages and the loss of 252 billion gallons of groundwater.
Chief Justice John Roberts penned the opinion in which he underscored that, because the case presents a novel issue, the court must decide if equitable apportionment of the Middle Claiborne Aquifer would be similar to how the court ruled in past precedent — which it concluded it was. Equitable apportionment — the doctrine of water law that governs the Supreme Court’s allocation of interstate waters — was a main point of contention between the states and justices during oral arguments.
“A core premise of Mississippi’s suit is that Tennessee is pumping water that was once in Mississippi,” the Bush appointee wrote. “The evidence shows that wells in Memphis and wells in northwest Mississippi are ‘pumping from the same aquifer.’”
Roberts cites the cone of depression as an example of why the case should be considered under the court’s equitable-apportionment precedents.
“Tennessee’s pumping has contributed to a cone of depression that extends miles into northern Mississippi,” Roberts wrote. “Mississippi itself contends that this cone of depression has reduced groundwater storage and pressure in northern Mississippi. It also alleges that Tennessee’s pumping is ‘siphoning’ tens of millions of gallons of groundwater each day from Mississippi’s portion of the aquifer. Such interstate effects are a hallmark of our equitable apportionment cases.”
Mississippi argued that the speed at which the water flowed was notable. Roberts addressed this point in his opinion, saying that the court has applied equitable apportionment to streams that occasionally run dry.
Roberts relied heavily in his opinion upon a report from a court-appointed special master that recommended the dismissal of Mississippi’s case.
While Mississippi predictably had lodged objections to the report, so, too, did its opponent. Tennessee agreed with the special master that equitable apportionment was the “exclusive remedy” for water disputes, but it wanted the special master to go further.
Mississippi Deputy Solicitor General John Victor Coghlan rejected the idea of using equitable apportionment to solve the dispute, claiming it should only be used in cases of interstate waters and this case involves the “unnatural” pumping groundwater.
“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,” Coghlan had said at oral arguments. “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.”
Mississippi Attorney General Lynn Fitch declined to comment on the ruling beyond a note saying, “We respect the decision of the court."
Attorneys representing the city of Memphis and Memphis Light, Gas & Water Division meanwhile applauded the ruling.
“The decision confirms the position we have advocated since 2005 when Mississippi first filed suit in the United States District Court in Mississippi,” Kristine Roberts and David Bearman from Baker Donelson said in an email. “It is also consistent with more than a century of Supreme Court precedents and charts a sound path for interstate groundwater disputes going forward.”
Tennessee Attorney General Herbert Slatery III also lauded the court’s ruling.
“We now have some finality," Slatery said in a statement. "It’s a clear victory for Tennessee on all issues, and for all states who share underground water resources.”
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