Mississippi v. Tennessee - No. 143 Orig - (Argued 10/4/2021 - Decided 11/22/2021)
Think I'm a little behind on Supreme Court stuff? The first decision of October Term 2021 was issued all the way back in late November and I didn't even notice until today. Yikes. I'm hoping that I can start making up some headway in the next few days, but hey - at least I've finally noticed what's happened!
On to the case. This was an original jurisdiction suit with Mississippi suing Tennessee over water use. The case actually was first filed in the lower federal courts and started off as Mississippi suing the city of Memphis, Tennessee over Memphis' water drilling, which Mississippi said was misappropriating waters that belonged to Mississippi by causing low pressure areas through drilling which caused an increase in the rate of flow of underwater aquifer water supplies from Mississippi to Tennessee. The lower federal courts, however, decided that the state of Tennessee was an indispensable party to that lawsuit - and then promptly dismissed the suit because lawsuits between states have to go directly to the Supreme Court per the Constitution.
A number of years later, Mississippi pursued such a suit, resulting in this decision. The case was assigned to a Special Master, and eventually that Special Master issued a report, finding in favor of Tennessee but also recommending that Mississippi be given leave to amend its complaint. Both Mississippi and Tennessee filed exceptions to the Special Master's report with the Supreme Court, which were at issue in oral argument here.
The Court first needed to determine whether the doctrine of Equitable Apportionment - which is the traditional water law remedy for water disputes between states - applied to underwater aquifers. Equitable Apportionment - which looks at how states sharing flowing water resources have utilized the water historically and how they can be expected to utilize it in the future in order to best apportion the resource between the states involved in the dispute - has previously been used for all water resources that are shared - including lakes, rivers, and streams (even ones that are intermittently dry) and in one case was even used to determine who had the right to use salmon that were moving through interstate waters. Here, the Court determined as a matter of first impression that underwater aquifers are effectively analogous to above-ground water resources. While they flow slowly, they do flow - and because they can be so large that slow movement can still involve huge volumes of water over time. As a result, the Court ruled that Equitable Apportionment does indeed apply to underwater aquifers.
That ruling effectively doomed Mississippi's case. Mississippi was clear throughout its suit that it was not seeking equitable apportionment of the reservoir water and that instead it favored a completely different regime for determining ownership / right to use the aquifer water, one which was based on idea of sovereign ownership of water resources resting on or under the land of a territory. This, however, has never been how the Supreme Court treated water resources, and so there was no reason to get into the question of whether Memphis drilling straight down and causing pressure changes that caused water to flow toward Memphis was somehow a nefarious theft of Mississippi's "sovereign waters." Instead, the Court took Mississippi at its word that it was not seeking equitable apportionment and so, upon determining that equitable apportionment was the only available remedy for a dispute that implicated the waters of the aquifer, the Court was forced to dismiss Mississippi's exceptions to the Special Master's report and deny Mississippi leave to amend its complaint.
This unanimous decision was the right one - the Court had no reason to adopt a new doctrine for aquifers here, and avoided stepping into a potential lawsuit trap by opening the door to repeated novel claims across the country involving groundwater resources. This decision keeps everyone on a clear and understandable footing moving forward. Incidentally, I got this one half right in my oral argument discussion. I said at the time that I expected Mississippi to lose but that they might be given a chance to amend their complaint to adopt an Equitable Apportionment argument, so as to prevent duplication of effort and a brand new lawsuit. I'll consider that closer to a win than a loss for my prediction.
Think I'm a little behind on Supreme Court stuff? The first decision of October Term 2021 was issued all the way back in late November and I didn't even notice until today. Yikes. I'm hoping that I can start making up some headway in the next few days, but hey - at least I've finally noticed what's happened!
On to the case. This was an original jurisdiction suit with Mississippi suing Tennessee over water use. The case actually was first filed in the lower federal courts and started off as Mississippi suing the city of Memphis, Tennessee over Memphis' water drilling, which Mississippi said was misappropriating waters that belonged to Mississippi by causing low pressure areas through drilling which caused an increase in the rate of flow of underwater aquifer water supplies from Mississippi to Tennessee. The lower federal courts, however, decided that the state of Tennessee was an indispensable party to that lawsuit - and then promptly dismissed the suit because lawsuits between states have to go directly to the Supreme Court per the Constitution.
A number of years later, Mississippi pursued such a suit, resulting in this decision. The case was assigned to a Special Master, and eventually that Special Master issued a report, finding in favor of Tennessee but also recommending that Mississippi be given leave to amend its complaint. Both Mississippi and Tennessee filed exceptions to the Special Master's report with the Supreme Court, which were at issue in oral argument here.
The Court first needed to determine whether the doctrine of Equitable Apportionment - which is the traditional water law remedy for water disputes between states - applied to underwater aquifers. Equitable Apportionment - which looks at how states sharing flowing water resources have utilized the water historically and how they can be expected to utilize it in the future in order to best apportion the resource between the states involved in the dispute - has previously been used for all water resources that are shared - including lakes, rivers, and streams (even ones that are intermittently dry) and in one case was even used to determine who had the right to use salmon that were moving through interstate waters. Here, the Court determined as a matter of first impression that underwater aquifers are effectively analogous to above-ground water resources. While they flow slowly, they do flow - and because they can be so large that slow movement can still involve huge volumes of water over time. As a result, the Court ruled that Equitable Apportionment does indeed apply to underwater aquifers.
That ruling effectively doomed Mississippi's case. Mississippi was clear throughout its suit that it was not seeking equitable apportionment of the reservoir water and that instead it favored a completely different regime for determining ownership / right to use the aquifer water, one which was based on idea of sovereign ownership of water resources resting on or under the land of a territory. This, however, has never been how the Supreme Court treated water resources, and so there was no reason to get into the question of whether Memphis drilling straight down and causing pressure changes that caused water to flow toward Memphis was somehow a nefarious theft of Mississippi's "sovereign waters." Instead, the Court took Mississippi at its word that it was not seeking equitable apportionment and so, upon determining that equitable apportionment was the only available remedy for a dispute that implicated the waters of the aquifer, the Court was forced to dismiss Mississippi's exceptions to the Special Master's report and deny Mississippi leave to amend its complaint.
This unanimous decision was the right one - the Court had no reason to adopt a new doctrine for aquifers here, and avoided stepping into a potential lawsuit trap by opening the door to repeated novel claims across the country involving groundwater resources. This decision keeps everyone on a clear and understandable footing moving forward. Incidentally, I got this one half right in my oral argument discussion. I said at the time that I expected Mississippi to lose but that they might be given a chance to amend their complaint to adopt an Equitable Apportionment argument, so as to prevent duplication of effort and a brand new lawsuit. I'll consider that closer to a win than a loss for my prediction.
