For more than a decade, Mississippi has waged a legal dispute over groundwater pumped from wells surrounding the city of Memphis. Mississippi says the water is theirs, and they’ve asked the Supreme Court to let them collect $615 million in compensation for it.
On Monday, the state presented its case to the nine justices, arguing that Memphis Light, Gas and Water is siphoning underground water across the state line, violating Mississippi’s territorial sovereignty.
Memphis and the state of Tennessee—both co-defendants—counter that the city’s municipal water supply is sourced from a hydrologically-connected, regional aquifer system that stretches across multiple states.
Law experts are closely watching the dispute because of what it could mean for shared water resources across the country.
“This is the first time we’ve had a groundwater fight in the US Supreme Court,” says Robin Craig, a professor at the University of Southern California’s law school.
Historically, the court has only decided interstate battles over surface waters such as rivers.
For these disputes, states either voluntarily create water sharing compacts approved by Congress, or they let the court determine the sharing arrangement based on a doctrine called equitable apportionment.
“The issue is really: does groundwater make a difference?” Craig says. “Is there something about groundwater that should cause the court to use different principles than it normally uses?”
A special judge, tasked with reviewing this aquifer case and making a recommendation to the Supreme Court, concluded last year that the principles are the same.In his report, he said an equitable apportionment ruling was the appropriate legal avenue for Mississippi to proceed.
But, the state has so far declined this option, maintaining Memphis is illegally taking water under its jurisdiction.
Concerned with the precedent the lawsuit could set, eight states,including Colorado, Nebraska and North Carolina, are urging the court to side with Tennessee. They say Mississippi is undermining the current system used to manage water conflicts by not pursuing an apportionment judgment. The federal government has also weighed in, filing a brief in support ofdismissing the case.
“Until the groundwater has been apportioned…Mississippi cannot claim that Tennessee is taking Mississippi’s groundwater,” the filing reads.
During oral arguments, the court also appeared wary of the possible proliferation of litigation similar to Mississippi’s claims.
“As the justices point out, if all the of the states are pumping from the aquifer, and they’re all having these extraterritorial effects, what you’re going to end up with is everybody in court pointing fingers at each other, saying you took some of [our water],” Craig says.
The ruling could be very narrowly tailored—only addressing Mississippi’s specific claim of water theft, Craig says. Or it could have far-reaching implications for future groundwater conflicts.
“It’s either going to be the shortest interstate water law case opinion in the history of the court, or they are going to make some broader pronouncements about where they think equitable apportionment applies and doesn’t apply,” she says.
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