This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
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.
Defying everyone else’s agreement that equitable apportionment was its only cause of action, Mississippi argued before the Supreme Court that Tennessee had invaded Mississippi’s sovereign territory by allowing the Memphis Light, Gas and Water Division to pump so much water from the aquifer that it created a cone of depression that extended across the state line and caused groundwater that naturally would have remained under Mississippi to flow into Tennessee. For this state-level version of a trespass, Mississippi sought over $600 million in damages.
During oral argument, some of the justices expressed discomfort with the potential breadth of the equitable apportionment doctrine if they applied it to groundwater, envisioning a proverbial flood of interstate original-jurisdiction litigation about aquifers. Nevertheless, they determined that their longstanding remedy for natural resource disputes among states was Mississippi’s only option. Equitable-apportionment law seeks to balance the states’ sovereign interests in water by delineating how exactly the two states will share an interstate waterway.
“[W]e hold that the waters of the Middle Claiborne Aquifer are subject to the judicial remedy of equitable apportionment,” Chief Justice John Roberts wrote in the unanimous opinion in Mississippi v. Tennessee.
Whether Mississippi will actually be entitled to equitable apportionment, however, is highly debatable. As the court confirmed last year in Florida v. Georgia, the complaining state has a heavy burden of demonstrating that the other state’s water use is causing the complaining state significant injury. Facts as developed so far indicate that Mississippi will be unable to meet that burden.
Check out Professor Craig's in-depth analysis of the opinion.
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Robin Kundis Craig | November 23, 2021
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.
Karen Sokol | November 22, 2021
During a historic hearing before the U.S. House Committee on Oversight and Reform on October 28, the executives of ExxonMobil, Chevron, Shell, BP, and the American Petroleum Institute (API), refused to admit to their decades-long climate disinformation campaign that is now well-documented in publicly available documents uncovered by journalists and researchers. If that weren’t enough, the executives continued to deny climate science under oath, albeit with a slight twist from their previous disinformation campaign. Instead of denying the science establishing that fossil fuels are driving the climate crisis, they’re now denying the science establishing the urgent need for a rapid transition away from fossil fuels. In other words, they’re still lying -- a strategy that was on full display in this blockbuster hearing.
Catalina Gonzalez, Maggie Dewane | November 18, 2021
Despite President Biden’s bold climate commitments at home and COP26, his administration and Congress have much more work to address climate change and to make climate justice a reality.
Emily Ranson, Marcha Chaudry | November 16, 2021
Although vaccination rates continue to rise and coverage on COVID-19 is fading away from prominent news dashboards, our rates are still higher than in summer 2020. While we still adapt to living and working with COVID-19, we must prepare for future public health emergencies so we do not lose another year figuring out our response.
Daniel Farber | November 15, 2021
Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos. Fossil fuels are a case in point.
Richard Pierce, Jr. | November 11, 2021
Effective climate change mitigation depends critically on the ability to substitute electricity for gasoline as the primary transportation fuel and to substitute carbon-free fuels for fossil fuels as the country’s primary source of electricity. But the nation’s electricity transmission grid is woefully inadequate to accomplish these important tasks, and the U.S. regulatory system renders it impossible for regulators and clean energy advocates to implement the necessary expansion of grid capacity. Most sources of carbon-free electricity are located a long distance away from the places where most people live and work. Studies indicate that the United States can provide carbon-free electricity to major population centers only by adding transmission lines to the grid.
Daniel Farber | November 8, 2021
Late Friday, the House passed President Biden's infrastructure bill, the Build Back Better law. As The Washington Post aptly observed, the bill is the biggest climate legislation to ever move through Congress. It also attracted key support from some Republicans, which was essential to passing it in both houses of Congress. Biden is pushing for an even bigger companion bill, but the infrastructure bill is a huge victory in its own right. One major area of spending is transportation. Some of that goes for roads and bridges. But as The Washington Post reports, there's a lot of money for rail and mass transit.
Daniel Farber | November 4, 2021
Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."
Minor Sinclair | October 28, 2021
Our society has finally reached a turning point on climate. I’m not referring to the “point of irreversibility” about which the United Nations warns us: In nine short years, the cascading impacts of climate change will trigger more and greater impacts -- to the point of no return. Rather, we have reached the turning point of political will for climate action. There is no going back to climate passivity or denialism. Choosing to electrify and greenify is a progressive agenda, a mainstream agenda, and an industry agenda -- though all of these agendas differ.