The US Supreme Court is starting 2018 by hearing arguments in back-to-back interstate water cases:
(2) Florida v. Georgia.
The cases are before the Court under “original jurisdiction” - they are being heard on first impression rather than on appeal (although they have been reviewed and reported on by appointed Special Masters).
Substantively, both cases involve disputes between two states regarding obligations and rights to shared waters, whether by agreement (interstate compact) or common law (equitable apportionment). Texas argues that New Mexico is violating the terms of their 1938 Rio Grande Compact with a self-serving interpretation of that agreement’s obligation on New Mexico to deliver water to a reservoir (in New Mexico) for use in Texas. Florida argues that Georgia is taking more than its equitable share of water for municipal and agricultural use from the Apalachicola-Chattahoochee-Flint basin and harming the downstream ecosystem in Florida. To some extent both cases may come down to specific facts and agreed terms as the Court sides with one state over another.
Further, the Court's decisions could more broadly affect the balance between federal and state control of shared interstate waters. In the Rio Grande dispute, the United States has weighed in to protect downstream flows that it must deliver to Mexico pursuant to an international treaty, and the Court will decide whether to allow this. And Georgia claims that the U.S. Army Corps of Engineers controls the upstream water that Florida wants conserved, and the Court will decide if that’s reason to let Georgia off the hook for its water use. The United States has sided with Georgia, and claims it would not alter its control of the upstream water (ostensibly for navigation and flood control) based on Georgia’s water use.
The federalism and interstate issues implicated in these cases aren’t easily categorized by standard political or legal ideology. I’m eager to hear the Justices’ questions at oral argument, especially regarding the federal powers at issue. And curious about the newest member of the Court, Trump-appointee Justice Neil Gorsuch, while senior member Justice Anthony Kennedy might offer some insights on how the Court may navigate the federalism questions. The pairing of the cases highlights the need for doctrinal consistency even as the unique facts may determine outcomes.
SCOTUSblog is the go-to resource for pleadings and commentary (Texas v. New Mexico; Florida v. Georgia). And check out the “infographic argument explainers” for Texas v. New Mexico and Florida v. Georgia at Subscript Law. Subscript is an innovative nonprofit educational resource that provides graphic explanations of legal concepts and cases. Bookmark it.