The Volokh Conspiracy

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Some small observations about the new Nebraska & Oklahoma v. Colorado interstate marijuana lawsuit


I said they were small, but I can't help myself:

1. Yes, Nebraska and Oklahoma are suing Colorado, directly in the U.S. Supreme Court—as befits states suing each other, see Article III.

2. Secret reason for the lawsuit: Check out Nebraska's and Oklahoma's borders with Colorado—super boring. There's no way to get into the Court over some pesky border dispute over thalwegs or some such. Marijuana: next best thing.

3. The lawsuit is basically a public nuisance "pot pollution" lawsuit. No, really, see pp. 12-13 of the Complaint, which specifically mentions nuisance, and cites cross-border pollution cases such as New Jersey v. City of New York.

4. War over drugs? "Between Colorado and Plaintiff States, Colorado's actions amount to what would be casus belli if the states were fully sovereign nations." A bit overstated, I think. (The Opium Wars aren't quite on point, I think.)

5. But of course this levity is out of place. "This case is of a serious and dignified nature" (p. 11).

6. Nebraska & Oklahoma v. Colorado on marijuana today—New York & New Jersey v. Arizona (or Vermont) on guns tomorrow. True, the claim is that Colorado is violating federal law, but the public nuisance cases on which plaintiffs are relying apply even in the absence of such violations. Of course, that's just if the Nebraska & Oklahoma lawsuit succeeds, which I very much doubt, though I'm not an expert on the subject.

UPDATE: Whoops—through force of habit, I originally wrote "medical marijuana" in the post title; of course the lawsuit is about marijuana legalization more broadly.