Jesse J. Richardson, one of the smartest water lawyers I know, has written a number of times about groundwater, especially the seminal Mississippi v. Tennessee case, which the Supreme Court heard on 4 October 2021 Prior to that he wrote a WaterWired article on the Special Master's decision in November 2020, which did not support Mississippi's position.
On 22 November 2021, the Supreme Court issued its decision: 9-0 in favor of Tennessee, thus ending about 15 years of conflict between Mississippi and Tennessee, its co-defendants City of Memphis and the city's subsidiary, Memphis Light, Gas and Water (MLGW). I asked him to write brief piece on this important decision. Here it is. Note that the 'Middle Claiborne Aquifer' is also known as the 'Memphis Sand Aquifer'.
[I have added the block diagram to Jesse's piece. It's by Mike Rogalski/Eyewash and can be found in the Undark Magazine article.]
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Mississippi v. Tennessee
Jesse J. Richardson, Jr.
The United States Supreme Court released its opinion in Mississippi v. Tennessee today, November 22, 2021. The Court dismissed the case and did not grant Mississippi leave to file an amended complaint requesting equitable apportionment.
This case began in 2014 when Mississippi asked the Court to file a bill of complaint against Tennessee. Mississippi basically alleges that Memphis is pumping water from beneath the state of Mississippi for public water supply. Although the pumps themselves do not extend into Mississippi, the cone of depression does. Mississippi essentially claims that Tennessee is stealing its water and asked for monetary damages and for the Court to order Tennessee to stop the pumping.
The Special Master, after discovery and five days of hearings, found that the Middle Claiborne Aquifer is an interstate water resource and that groundwater flowed between the states of Tennessee and Mississippi even prior to Tennessee’s pumping. The Special Master recommended that the Court dismiss this case and grant leave to Mississippi to file an equitable apportionment case against Tennessee.
Equitable apportionment is the doctrine by which the Court fairly allocates interstate water resources between two or more states. The Court has held that states have an equal right to make reasonable use of shared waters. However, this doctrine has never been applied to groundwater.
The Court first found that equitable apportionment of the Middle Claiborne Aquifer would be “sufficiently similar” to equitable apportionment of surface waters to warrant the same treatment, for three reasons. One, equitable apportionment only applies to transboundary resources and this aquifer is multistate in nature. Two, water in the aquifer flows naturally between the states. Finally, Tennessee’s pumping affects the portion of the aquifer below Mississippi as the cone of depression extends into Mississippi.
The Court rejected Mississippi’s contention that the groundwater beneath the state belongs exclusively to that state. Although states control the lands, including beds of streams, within their state, that control does not extend to “flowing interstate waters”. States that share interstate waters must respect each other’s interests in that water.
The Special Master also recommended that the Court grant leave to Mississippi to file an amended complaint seeking equitable apportionment. The Court refused to do so, explaining that Mississippi has neither requested leave nor alleged the elements of equitable apportionment. Equitable apportionment is a completely different matter than what Mississippi has pursued to this point. The case was dismissed with no leave to amend.
Where does this case leave Mississippi and the groundwater industry? First, a state, including Mississippi, may file an equitable apportionment claim for groundwater where the three requirements are met: (1) the aquifer is interstate, (2) waters in the aquifer flow naturally between the states and, (3) the actions of one state affects the portion of the aquifer below another state.
Predictions of rampant groundwater pumping along state boundaries are already being made. Those predictions may come true, but, if so, are likely to be quickly followed by a multitude of petitions to the United States Supreme Court requesting equitable apportionment. Given the number and complexity of interstate aquifers, the Court’s already heavy case load of water disputes may well increase exponentially. One wonders whether the case load will eventually prompt changes in how these cases are handled. In this particular case, I do not see the Court’s refusal to grant leave as particularly significant. I believe that Mississippi may file for leave at any time, just as any other state may.
Perhaps states will be incentivized to reach agreements (or compacts) on sharing interstate aquifers. However, despite the huge increase in interstate disputes and the astronomical costs of litigation, no such agreements have been reached as to surface water or groundwater in decades.
The Court’s emphasis on science will undoubtedly also mean that hydrogeologists, engineers, geologists and other scientists will be in high demand as expert witnesses in these cases. Good data and analysis will prove vital in these cases.
Finally, the question of “Who Owns the Water?”, although somewhat clearer after this case, remains in doubt. This decision rejected the notion that a state owns the groundwater beneath that state but leaves open the extent of private property rights. The Court will likely have an opportunity to apply equitable apportionment principles to groundwater in the relatively near future as disputes continue to escalate. Stay tuned to see how this area of law evolves.
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Here is a link to the documents.
Friends of the Court and Other Voices
Jesse and some of his legal colleagues submitted an amici curiae (friends of the court) brief last April:
Download MS_v_TN_Amici__Curiae_Brief
Noah Hall of Wayne State University, one of Jesse's amici curiae colleagues,
wrote an excellent article on this decision on his Great Lakes Law blog: go here.
He concluded:
In my view, the Court’s holding on the equitable apportionment doctrine is logical and sound but could have gone further. I filed an amicus brief with a small crew of water law professors (Joe Regalia, Robert Abrams, Burke Griggs, and Jesse Richardson) to share with the Court the doctrines and implications beyond equitable apportionment in considering claims of state ownership of water as property. Beginning with a law review article in 2013 (Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management, with Benjamin L. Cavataro, 2013 Utah L. Rev. 1553) and again in 2016 (Interstate Groundwater Law Revisited: Mississippi v. Tennessee, with Joseph Regalia, 34 Virginia Environmental L. J. 1520), I have advanced and detailed how equitable apportionment should and can apply to groundwater. The more difficult question is what then explains the state’s relationship to waters within its territory, if not ownership? Joe Regalia and I explored this question, with implications for public water rights and protections, in our most recent article Waters of the State (59 Nat. Res. J. 59 2019). In short, it comes back to the public trust doctrine. And with a succinct opinion in Mississippi v. Tennessee, fundamental questions about the scope and power of the public trust doctrine for our waters remain unanswered.
I also stumbled across this 2016 document:
My Ten Cents
Much of this comes from what I wrote on 11 November 2020 when Judge Siler issued his recommendation that came down on the side of Tennessee.
Some items.
1) SCOTUS got it right. For Mississippi, it's equitable apportionment or nothing. And it was a unanimous decision. Now - let's see it implemented.
2) The irony of this groundwater dispute is that it has unfolded in a region of the US that averages over 50 inches of precipitation per year and is located on the banks of one of the world’s largest streams – the Mississippi River. Strikes me as more of a Western US issue - water quantity. Shape of things to come? I think so. States are looking at transboundary aquifers; Indiana, Michigan, Ohio and Kentucky are four that I know of. As climate change desiccates surface waters we will see more interest in groundwater use. And more potential conflict.
3) This case may have international implications. As friend Gabriel Eckstein of the Texas A&M School of Law pointed out, other countries often look to SCOTUS for guidance. This could be one of those cases. He also noted that when it comes to written agreements involving groundwater use between countries there are only four of them in the world: two between France and Switzerland, one between Jordan and Saudi Arabia, and another in North Africa. There are over 1,200 such agreements for surface water.
4) I would love to see Mississippi, Tennessee and Arkansas (it pumps from the Memphis Sand/Middle Claiborne aquifer but was not involved in the dispute) sit down and devise a governance and management plan from the bottom up. Maybe even sign a compact? My MS student Holly Mondo wrote a thesis on this a few years ago (the graphic is from her work).
It would be wise to expand the discussions to include the other states who overlie the Memphis Sand/Middle Claiborne aquifer: Kentucky, Illinois, Missouri, Alabama, and Louisiana.
5) I probably have done fifteen different PPTs and countless presentations/blog posts on this topic. One more, I suppose. My ride is about to end.
Download Ms_tn_gw_18august2021_final-2
6) Many thanks to Tom Charlier, formerly of the Memphis Commercial Appeal who phoned me out of the blue in 2006 or 2007 to get my take on the case. It's all his fault.
7) I once heard that this suit was about money more than anything else. The first time around Mississippi wanted damages of over $1B; the second time around it dropped to $615M.
8) This is the only SCOTUS case in which two states, each with three pairs of consecutive identical letters, are litigants a groundwater case. I probably didn't state this correctly: MiSSiSSiPPi v. TeNNeSSEE. And each has four letters with the 'e' sound. Get it?
9) Lastly, I think this decision is very important. It will (hopefully) encourage states with conflicts over groundwater to seek resolution without legal action. And without jumping on their neighbors who might be 'stealing groundwater (currently occurring on Oregon's southern border - California the culprit). Eight states, including my home state of Oregon, were concerned about this issue. They felt that if Mississippi prevailed, there might be a field day of lawsuits of groundwater being 'stolen'. I also believe the future, with desiccating surface-water supplies, could be a portent of things to come (see item 2).
10) Thanks, Jesse!
I suspect Mississippi is not celebrating too much today. Tennessee, Memphis, and MLGW - go figure!
Late arrivals (3 December 2021):
1) Thoughtful piece by Samuel Hardiman of the Memphis Commercial Appeal on the broader implications of the SCOTUS decision. Comments from Jesse J. Richardson, Sarah Houston (ED of Protect Our Aquifer) and yours truly. Click here.
2) Supreme Court backs Tennessee, City of Memphis in water rights dispute with Mississippi. bit.ly/3d8Hmlv
Later arrivals (31 December 2021):
3) Tiffany Dowell Lashmet's piece from the National Agricultural Law Center's blog,
4) Her podcast with Jesse J. Richardson.
Enjoy!
“The opera ain’t over until the fat lady sings.” - Ralph Carpenter, commenting on a close basketball game with a few seconds left (c. 1976)
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