In the groundwater dispute, the court told Mississippi whether it was a fair distribution or did nothing.


Opinion analysis

Middle Claiborne aquifer, as described in the 2020 report of the special supervisor appointed by the court.

Less than two months after the oral argument, the Supreme Court in its first interstate groundwater case Unanimous decision If Mississippi wants to sue Tennessee for the shared Clayburn Central Aquifer, it must rely on a principle called fair distribution. In the opinion of Chief Justice John Roberts (John Roberts), the court directly rejected Mississippi’s claim that Tennessee was stealing groundwater from Mississippi, and pointed out that it “has always denied” that the state can exercise exclusive ownership or ownership of interstate waters. Claims of control.

The decision of the Supreme Court

As expected, the court’s opinion Mississippi v Tennessee Very short-12 pages, half of which tells the long history of the case. Nevertheless, in the first opinion on the state’s rights to interstate aquifers, the court made three important decisions that may guide future interstate natural resource disputes.

First, the court established three criteria to determine when fair distribution is the appropriate principle to govern interstate disputes. The court emphasized that it applies not only to rivers and streams, but also to interstate river basins, groundwater extraction that affects surface water flow, and anadromous fish such as salmon and hardhead trout. There is a problem with the resources of the world. The court concluded that “the’multi-state character’ of the Middle Claiborne aquifer appears to be indisputable” and then continued with its second criterion: water or resources “flow naturally between states.” What is important is that it concludes that the speed of flow is not important. Although the water in the Middle Claiborne aquifer moves only one or two inches a day, the aquifer is still within a fair distribution range. The last standard requires that the use of resources by one state can affect the resources of another state; indeed, “[s]This interstate effect is a sign of our fair distribution of cases. “Because the extraction of groundwater in Tennessee produced a “swale cone” that crossed the border, the case met all three criteria, and “[f]Or these reasons,” Roberts concluded, “We believe that the waters of the Claiborne middle aquifer receive fair distribution of judicial relief. “

Second, the court completely rejected Mississippi’s theory of sovereign ownership, emphasizing that states that share water resources must respect each other’s interests in the resource. In contrast, “Mississippi’s ownership method will allow upstream states to completely cut off the flow of downstream states, and the result is contrary to our fair distribution law.”

Third, the court dismissed the stubborn Mississippi lawsuit instead of allowing the state to modify its complaint in favor of a fair distribution requirement. Since Mississippi did not require the court to approve the amendment, nor did it file a complaint about the proposed amendment, the court had no choice but to reject it in terms of procedures. Nonetheless, one can feel the court’s mild condemnation of Mississippi’s stubborn refusal to demand fair distribution and subsequent litigation procedures for assessing allegations of infringement based on the impact of Tennessee pumping water, rather than allowing a broader investigation of evidence, and perhaps more. State, fair distribution will be required.

Impact on the future

As climate change and drought make interstate groundwater disputes more and more likely in the future, states now know that fair distribution is the background principle for sharing groundwater. For countries that share aquifers, there are two important considerations.

First, joint fair distribution is now at least theoretically possible. As the court itself pointed out, it has considered that groundwater extraction that affects surface water is related to its interstate water resources decision. By explicitly placing the two sources of water under the same legal principle, the court can also say that states allow states to trade one resource with another.For example, a downstream state does need surface water flow for ecological reasons, as Florida hoped last semester Florida v. Georgia, It may be possible to exchange its rights to share groundwater resources to obtain more shared surface water resources.

Second, the decision is Mississippi v Tennessee Again, it is clear that interstate contracts provide the country with a clear advantage over fair distribution. For example, the court pointed out that in order for Mississippi to pursue fair distribution, it must show clear and convincing evidence that it suffered real and substantial harm. As Florida learned last semester, even in surface water environments, even if fisheries and endangered species rely on currents, this is an extremely difficult burden. In a groundwater environment, the burden may be more difficult to solve, unless the wells are drying up and the cost of sinking them deeper is too high, it is difficult to show serious damage-at this time the aquifer may have been fully exploited and not much can be done Assigned. It is worth noting that the court also distinguished 2013 Tarrant Region Water District v. Hermann Mississippi tried to rely on its territorial invasion claim for a clear reason Tarrant Involving interstate contracts. In this case, the court emphasized that “affected countries have negotiated their own contracts to determine their respective rights to related resources”, thereby eliminating the applicability of fair distribution.

In the surface water environment, fair distribution has long been regarded as detrimental to downstream countries. In contrast, in the context of groundwater, “upstream” and “downstream” are often not so clear, which means that more countries sharing groundwater may have the incentive to negotiate contracts. In addition, combining surface water and groundwater negotiations allows states to directly deal with hydrological groundwater and negotiate more creative trade-offs across resources.although Mississippi v Tennessee It is unlikely to trigger a bold new era of interstate water contracts. Some states that share falling aquifers may seize this opportunity because the courts have clarified the background principles on which they negotiate.



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