The Supreme Court Grills Miss. on an unusual groundwater claim



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The Supreme Court today appeared skeptical of Mississippi’s new claim that it has exclusive rights to groundwater in an aquifer that straddles the state’s border with Tennessee.

During the first argument of the new term, the judges questioned the claim that Tennessee’s Memphis Light, Gas and Water division had illegally drained billions of gallons of water from a sub-unit of the Middle Claiborne aquifer and deprived the Mississippi of the opportunity to develop the resource to its full potential.

An attorney representing Mississippi said the court had already recognized the state’s territorial sovereignty over the waters in 2013 in Tarrant Water District v. Herrmann, which dealt with an attempt by a Texas water district to use river water that had been allocated to Oklahoma under a 1980 agreement.

The judges did not seem convinced.

“Wasn’t that a cross-border situation? Justice Clarence Thomas asked during the court’s first in-person argument since the start of the COVID-19 pandemic.

Mississippi Deputy Attorney General John Coghlan responded that pumping the aquifer near the border through Tennessee created depression cones or drawdowns in groundwater, making it much more difficult and expensive for the ‘Magnolia State pumping its own water.

“The pumping physically crosses the border,” Coghlan said.

The case the judges heard today, Mississippi v. Tennessee, is one of many interstate water battles to reach the Supreme Court in recent years that invoke the original jurisdiction of judges to settle legal battles between states. Many more cases are expected to increase as climate change affects access to water.

While the Supreme Court typically uses the doctrine of equitable distribution to resolve water disputes between states, Mississippi argues that the aquifer was unfairly developed from the start and can no longer be fairly divided. Mississippi claims more than $ 600 million in damages (Green wire, June 17).

In November 2020 report, the “special master” the Supreme Court assigned to the Mississippi-Tennessee dispute wrote that the state of Magnolia had presented “no compelling reason” for the judges to deviate from the doctrine of equitable distribution in the case and left the door open for an amended complaint.

But Mississippi did not change its argument and asked the Supreme Court to take a closer look.

Throughout this morning’s hearing, judges seemed indifferent to Mississippi’s claim of sole control. The judges tried to equate the issue of groundwater sharing to the management of resources ranging from river flows to wild horses.

Judge Sonia Sotomayor wanted to know how Tennessee’s actions differ from those of an upstream state building a dam.

“How is it different from placing a well that interferes with the natural flow of groundwater? she asked Coghlan.

The judges also asked state attorneys whether Mississippi should be given the opportunity to pursue a fair allocation claim if its case fails on the argument of sole control of the aquifer.

Coghlan said Mississippi would like to keep this option. David Frederick, partner at Kellogg, Hansen, Todd, Figel & Frederick PLLC, argued on behalf of Tennessee that Mississippi should show there has been a material change of circumstances in order to raise a new claim in the case .

Several parties have submitted friend of the court briefs urging judges not to take the Mississippi approach. The federal government was among the parties that filed a case in favor of Tennessee, arguing alongside the state this morning.

Neither party weighed in on behalf of the Mississippi position.

Judge Brett Kavanaugh participated in today’s argument over the phone after testing positive last week for a groundbreaking COVID-19 case (Green wire, October 1st).

A decision in Mississippi v. Tennessee is expected in early summer.

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