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Fisheries regulation might seem to be unusual grounds for the U.S. Supreme Court to shift power away from federal agencies. But that is what the court seems poised to do in the combined cases of Loper Bright Enterprises vs. Raimondo and Relentless Inc. vs. Department of Commerce.

Confirming expectations, the Supreme Court on Monday unanimously denied Mississippi’s claim that Tennessee is stealing its groundwater. If Mississippi wants to pursue its groundwater battle with Tennessee, it will have to file a new complaint with the court asking for an equitable apportionment of the Middle Claiborne Aquifer, which lies beneath Mississippi, Tennessee, and other states.

Less than two months after oral argument, in its first interstate groundwater case, the Supreme Court unanimously decided that Mississippi must rely on a doctrine known as equitable apportionment if it wants to sue Tennessee over the shared Middle Claiborne Aquifer. In an opinion by Chief Justice John Roberts, the court squarely rejected Mississippi's claim that Tennessee is stealing Mississippi's groundwater, noting that it had "'consistently denied' the proposition that a State may exercise exclusive ownership or control of interstate waters." As expected, the court's opinion in Mississippi v. Tennessee is short -- 12 pages, half of which recount the long history of the case. Nevertheless, in this first opinion about states' rights to interstate aquifers, the court made three important decisions that are likely to guide future interstate disputes over natural resources.

Mississippi v. Tennessee is not only the Supreme Court’s first oral argument of the 2021-22 term, but it is also the first time that states have asked the court to weigh in on how they should share an interstate aquifer. The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades -- or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action.

Recently, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change. The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. How much do presidents really matter to the United States' participation in international environmental law? Fairly obviously, presidential turnovers in the United States are absolutely critical […]

Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to […]

Last week, the U.S. Environmental Protection Agency (EPA) finalized new National Ambient Air Quality Standards (NAAQS) for ozone pursuant to the federal Clean Air Act. See 42 U.S.C. § 7409. The new regulation reduces both the primary and secondary NAAQS for ozone from 0.075 to 0.070 parts per million (ppm) (or from 75 to 70 […]