1st Dispute Over a Trans-boundary Aquifer to go to US Supreme Court

Michael Campana recently updated his WaterWired blog with the news that the US Supreme Court recently accepted its first dispute between two US States over trans-boundary ground water resources (see his posting here, which links to his prior postings on the case). As Michael explains in an earlier post:

In a nutshell, the case boils down to Mississippi claiming that Memphis Light, Gas and Water (MLGW), the municipally-owned utility for the Memphis area (Shelby County), is deriving about 30% of the water it pumps from the Memphis Sand aquifer (aka the Sparta aquifer) from beneath Mississippi. This amounts to about 60 mgd (million gallons per day) coming from beneath the Mississipians’ land.

This is no nickel-and-dime lawsuit; the damages sought by Mississippi amount to $1 billion, and if the Memphis utility loses, it would be forced to reduce its pumping and obtain some of its water from the Mississippi River, which would entail the construction of an expensive water treatment plant.

Most of the “harm” to Mississippi occurs in DeSoto County [where] … well water levels there have been dropping … Mississippi contends that some of the declines are due to Memphis’ pumping and constitute “harm”. Memphis claims that its use is “reasonable” and not reducing the water availability in Mississippi.

The case originally pitted Mississippi against the City of Memphis (located in Tennessee), and Mississippi initially pursued the case in Federal District Court solely against Memphis. That court, however, ruled that the State of Tennessee was an indispensible party to the case and, because the case would involve a dispute between two US States, original jurisdiction rested with the US Supreme Court – the only court in the US permitted to hear disputes between US states (WaterWired also hosts a copy of the Federal District Court’s decision).

For purposes of international law, this case has great significance because of the jurisprudential impact that US Supreme Court principles and doctrines have had on international water law. For example, as Professor Steve McCaffrey explains in his quintessential book on the subject, The Law of International Watercourses, the keystone principle of international water law – equitable and reasonable utilization – is rooted, in part, in the US Supreme Court doctrine of equitable apportionment. Both concepts focus on the notion of equality of states under law, and both advocate equity in the allocation of benefits derived from trans-boundary waters. While there are important differences between the two doctrines (which would entail a law review article to explain; better yet, read Steve’s book), it suffices to say that US Supreme Court jurisprudence on interstate US water law has greatly influenced international water law.

Will the same occur for the law of trans-boundary ground waters? There is scant little precedence in US law on which the Court might base its decision other than cases on trans-boundary surface waters. While the analogy between the two water resources is certainly applicable and appropriate, this is new and unsettled ground for the Court to plow.

Might the Justices then turn to the law of other nations or of international law? Given the makeup of the Court, as well as the apparent disdain by some of the Justices for international law in US court decisions (recall Justice Antonin Scalia’s comments chastising the “arrogance” of U.S. judges who look to international law and decisions to support their opinions – see for example this Associated Press article), this is highly unlikely. Nonetheless, the Justices would be well served by reviewing the work of the UN International Law Commission in its work developing the Draft Articles on The law of Trans-boundary Aquifers. The Commission, lead by Special Rapporteur Chusei Yamada, spent six years researching and drafting principles of law that might be applicable to trans-boundary aquifers that traverse an international political boundary (Yamada’s reports, as well as those of the Commission’s Working Group on the topic, can be found here). (In the interests of full disclosure, I had the honor of serving on an experts group organized by UNESCO-IHP that assisted the Ambassador Yamada in his work on the Draft Articles.)

Ground water resources, for too many years, have been treated as the neglected stepchild of water law. This is especially true in a trans-boundary context but also in the domestic laws of many nations, including the US. The adage “out of sight, out of mind” comes to mind. The US Supreme Court has a great opportunity here to develop US jurisprudence and provide guidance for this nascent legal area. It also has a wonderful occasion to influence the evolution of international law in this area.

A complete copy of the Fifth Circuit’s decision is available at http://www.ca5.uscourts.gov/opinions/pub/08/08-60152-CV0.wpd.pdf.