On Monday, October 4 the United States Supreme Court heard oral arguments in Mississippi v. Tennessee. Both states have filed exceptions to the latest recommendations of Special Master. Mississippi filed suit arguing, essentially, that Memphis, Tennessee has stolen the groundwater from beneath Mississippi by placing several high volume water wells near the state line.
The litigation began in 2005, when Mississippi filed suit against the Memphis public water supplier in federal court. The district court and court of appeals both found that Mississippi needed to file suit against Tennessee and request that the United States Supreme Court divide the groundwater between the states (“equitable apportionment”). The United States, without comment, refused to hear the appeal and denied Mississippi’s motion to file a bill of complaint, in 2010.
In 2014, Mississippi again filed a motion for leave to file a bill of complaint. This time, the United States Supreme Court granted the motion. The Special Master, in the latest report, recommended that the Court dismiss the present action and grant leave to Mississippi to file an amended complaint asking the Court to equitably apportion the water. Mississippi objected to the recommendation to dismiss and Tennessee objected to the recommendation to allow Mississippi to amend to request equitable apportionment.
The arguments and questions from the justices spanned a wide range of topics, making it difficult to pinpoint one or two main points. Although most press reports have indicated that the justices expressed skepticism towards the claims by Mississippi, which they did, the reports leave out the pointed questions aimed at Tennessee as well.
Starting with the second question, some justices expressed frustration with Mississippi’s insistence on not pursuing an equitable apportionment claim, with one justice exclaiming that this started in 2005, “[w]hen is enough, enough”? Others, however, seemed to believe that Mississippi should be given that chance if this case is dismissed. Most seemed to wonder why the Court had to say anything at all- can’t Mississippi file leave to amend if and when they wish? I believe the Court will, out of fairness, allow Mississippi to amend if the Court rules against them.
As to whether Mississippi’s claim will survive this round, most justices expressed skepticism. My thought prior to this argument was that Mississippi has a steep hill to climb. I believe that the hill is still steep. However, during the latter part of the argument, some questions were asked about how groundwater is different than surface water and whether that means that equitable apportionment should not apply. Note that the Court has never considered a case involving apportionment of groundwater so this is the first time the Court would rule on that issue.
Other questions seemed to indicate that some justices think that equitable apportionment should apply, but may be different with respect to groundwater. The Chief Justice joked about his lack of knowledge of groundwater but the joke reinforced statements in other oral arguments that the justices are not comfortable with the technical issues involved in water cases. The Court is in a very different role in these types of cases than the usual appeal to the Court.
Some questions revealed a concern about what the ruling here would mean for the Court’s workload. If the Court rules in favor of Mississippi would a flood of litigation result? Or would allowing equitable apportionment of groundwater mean more states filing suit over interstate aquifers?
I was left with more uncertainty than prior to the oral arguments, but I will stick to my pre-argument prediction and say that the Court is likely to dismiss the present action by Mississippi and allow the state to amend the complaint to ask for equitable apportionment. If my prediction is correct, the arguments start all over again about how equitable apportionment should apply to groundwater, if at all. The level of complexity and uncertainty remain very high, but any result will impact groundwater management in profound ways.
On a personal note, Justice Sotomayor referred to an amicus brief that I co-authored with several other law professors during her questioning of Tennessee’s attorney. To have the United States Supreme Court explicitly recognize your work is quite humbling and I am very grateful for the chance to provide input at this highest level of legal debate. We expect a ruling in early 2022.
Jesse J. Richardson
Professor of Law and Lead Land Use Attorney
Land Use and Sustainable Development
Law Clinic
Links to more information about the case:
Case information on Mississippi v. Tennessee from SCOTUSblog: https://www.scotusblog.com/case-files/cases/mississippi-v-tennessee/
Audio and transcript of SCOTUS oral argument: https://www.supremecourt.gov/oral_arguments/audio/2021/143-Orig