The Volokh Conspiracy
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The Supreme Court issued its first opinion in an argued case this morning, and it was not in one of the Texas S.B. 8 cases, as some had speculated or hoped. Instead, today's rare November opinion concerned water. Chief Justice Roberts wrote for the Court in Mississippi v. Tennessee, resolving a water dispute between two states. Appropriately enough, Mississippi v. Tennessee was the first case argued this term, and Chief Justice Roberts appears to have taken over for the late Justice Ruth Bader Ginsburg as the fastest out of the gate. (He's the only other justice to have written a November opinion in an argued case since OT2014.)
While this was not a high-profile case, it is potentially important, as it brought greater clarity to the rights states have over the groundwater underneath their lands. Water disputes between states are rather common and often quite serious. (As they say, whiskey is for drinking and water is for fighting.) In addition, as climate change alters precipitation patterns, changes in water availability could increase the importance of water rights, and increase water disputes as the assumptions upon which past water policies and agreements were made no longer apply (a topic I addressed here and here).
Here's how Chief Justice Roberts summarized the dispute in Mississippi v. Tennessee:
The City of Memphis sits on the banks of the Mississippi River in the southwest corner of Tennessee. Arkansas marks the City's western border, and Mississippi its southern. Hundreds of feet beneath Memphis lies one of the City's most valuable resources: the Middle Claiborne Aquifer. Workers discovered the aquifer in 1886 while drilling a well for the Bohlen-Huse Ice Company. Ever since, water pumped from the aquifer has provided Memphis with an abundant supply of clean, affordable drinking water.
The Middle Claiborne Aquifer underlies other States too, including Mississippi. This case began in 2014 when Mississippi invoked our original jurisdiction and sought leave to file a bill of complaint against Tennessee. Mississippi alleges that Tennessee's pumping has taken hundreds of billions of gallons of water that were once located beneath Mississippi. It seeks at least $615 million in damages, as well as declaratory and injunctive relief. We granted Mississippi leave to file its complaint and appointed a Special Master to oversee proceedings. The Special Master has now issued his report, which recommends that this Court dismiss Mississippi's complaint with leave to amend. Both Mississippi and Tennessee have filed exceptions.
The reason there is a Special Master's report is because this case arose under the Court's original jurisdiction as a dispute between two states. A Special Master is often appointed in such cases as there are no trial court proceedings to resolve questions of fact. So (and I oversimplify a little here), the Special Master prepares a report with findings of fact and recommendations, and then the parties file objections to the report (if they have any) for the justices to resolve. In this case, Judge Eugene Siler of the U.S. Court of Appeals for hte Sixth Circuit served as the Special Master.
In this case, Mississippi's objections are the more significant, because Mississippi objected to the Special Master's conclusion that groundwater is subject to equitable apportionment, under which the Court "allocates rights to a disputed interstate water resource" that is not governed by statute, interstate compact, or prior appropriation. As the Chief summarized, "Equitable apportionment aims to produce a fair allocation of a shared water resource between two or more States. . . . The doctrine's guiding principle is that States have an equal right to make a reasonable use of a shared water resource." (Internal quotations omitted.)
Although the Court had not previously held that equitable apportionment applies to groundwater, the justices agreed with the Special Master that there is no reason why it should not apply to an aquifer that spans state boundaries the same way that it applies to other interstate water resources. This makes eminent sense. Absent a statute or compact to govern the dispute, there's no reason to treat groundwater differently.
More from the opinion (which may be of particular interest to property law profs or those with an interest in the law governing underground resources):
Mississippi contends that it has sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply. We see things differently. It is certainly true that "each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters." Kansas v. Colorado, 206 U. S., at 93. But such jurisdiction does not confer unfettered "ownership or control" of flowing interstate waters themselves. Wyoming v. Colorado, 259 U. S., at 464. Thus, we have "consistently denied" the proposition that a State may exercise exclusive ownership or control of interstate "waters flowing within her boundaries." Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102 (1938). Although our past cases have generally concerned streams and rivers, we see no basis for a different result in the context of the Middle Claiborne Aquifer. When a water resource is shared between several States, each one "has an interest which should be respected by the other." Wyoming v. Colorado, 259 U. S., at 466. Mississippi's ownership approach would
allow an upstream State to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.
Interestingly enough, the Court rejected the Special Master's recommendation that Mississippi be granted leave to file an amended complaint, pressing an equitable apportionment claim. Noted the Chief:
We decline to decide whether Mississippi should be granted such leave, because the State has never sought it. As Mississippi itself emphasizes—literally—it has "not yet requested equitable apportionment."
Because he is the senior-most justice, the Chief chose this case for himself. This is interesting because Mississippi v. Tennessee was likely the easiest and most straight-forward of the nine cases in the October sitting, and (because there were nine argued cases), it is likely that each justice will get one majority opinion from the sitting.
This means that the Chief is unlikely to have one of the high-profile cases from the sitting, but it may indicate that the Chief was clearing space to take on something more significant or contentious from the November sitting. Note, however, that his decision to write in this case was likely made before he was aware the S.B.8 cases would be on the Court's plate. Note, also, that the Chief's expectation of being able to claim opinion-writing duties in one of the blockbusters depends upon his being in the majority. This would have been a fair assumption when he was the swing justice, but that no longer appears to be the case.