From Bloomberg Law (Ellen M. Gilmer):
The U.S. Supreme Court kicks off its new term next month with a unique “original jurisdiction” water dispute—the likes of which could become more common as the climate changes.
The justices are set to hear Texas v. New Mexico, virtually, on their first day of oral arguments Oct. 5. Original jurisdiction cases go straight to the high court, rather than working their way through lower benches first…
“The tradition has been the justices are not enthusiastic about hearing these cases because they involve such highly technical issues,” said University of Maryland law professor Robert Percival, who tracks environmental issues at the high court…
What’s on deck in Texas v. New Mexico?
Set for argument next month, Texas v. New Mexico involves the 1949 Pecos River Compact, which governs how the two states share water from the Pecos River, which runs more than 900 miles from northern New Mexico to western Texas.
The Supreme Court must decide whether a “river master” in charge of annual calculations gave New Mexico too much credit for water deliveries to Texas during a period of heavy rains and flooding from a major storm in 2014—when New Mexico stored water for its neighbor but ultimately lost some of it to evaporation.
The United States will argue as a friend-of-the-court supporting New Mexico in the case. The Bureau of Reclamation runs the New Mexico reservoir that held the water.
Does the case have broader impacts?
The dispute is an example of increasingly familiar situations in which decades-old water compacts don’t adequately account for population growth, economic shifts, and decreased rainfall and water storage capabilities, K&L Gates attorneys said in a recent analysis.
“As a result, these interstate compacts appear to be sometimes causing more disagreement than resolution,” attorneys Molly K. Barker, Natalie J. Reid, and Alyssa A. Moir wrote.
The Pecos River case will test the justices’ willingness to read water compacts strictly or flexibly, and to account for extreme weather and other changing circumstances, Craig said.
“It’s going to be interesting for seeing how the court tries to interpret these very old compacts in these situations that weren’t part of the bargain that states were initially striking,” she said…
What about future water disputes at the Supreme Court?
Two other interstate water cases are brewing before special masters, and could land on the Supreme Court’s calendar in a future term.
Texas is going up against both New Mexico and Colorado in a dispute over the Rio Grande Compact and how it treats groundwater that’s connected to the river. Mississippi and Tennessee are also fighting about groundwater in a closely watched case involving the states’ rights to a shared aquifer.
The cases are of particular interest as climate change affects water availability, University of Maryland’s Percival said.
“As climate change increases droughts and makes surface water increasingly scarce,” he said, “groundwater is where cities and states are increasingly turning for their water resources.”