Tag Archives: Aquifer

Average Joe SCOTUS: Mississippi v. Tennessee

In what promises to be another snoozefest, we have another case that SCOTUS has as part of their original docket. Meaning, it’s not a case they choose to hear, it’s a case they have to hear.

In a case involving the two state with the most double letters in their name, Mississippi have beef over some water with Tennessee. The Middle Claiborne Aquifer is fucking huge. It spans several states including these two assholes.

Not sure what an aquifer is? Neither was I. It’s basically, underground rock which is porous and stores a lot of water inside it. So forget about the rock for a minute, just think of it as a huge lake that spans the states, but you can’t fucking see it, because it’s underground.

Tennessee’s Memphis Light, Water & Gas Division pumps a lot of water out of that mother fucker from wells in Tennessee, but near the Mississippi border. Mississippi expects a certain amount of water from it, too. They argue they can’t get what they want, because those greedy assholes in Tennessee take too much from near the border, which basically depletes Mississippi’s portion as it flows to Tennessee when they pump water out.

They claim that their own groundwater goes down into the aquifer. But when Tennessee pumps water from their side, Mississippi’s groundwater flows into Tennessee, and therefore, they lose it.

Anyway, the courts have in the past appointed a special master to sort this shit out. They try to make sure that states which share a body of water, get their fair share of that water, and one isn’t fucking over the other.

Typically, the courts use an “equitable apportionment” rule to rivers and shit. But this is the first time an aquifer is the source of the dispute. Mississippi is hoping to make the case that it doesn’t apply to groundwater. Presumably because what Tennessee is taking, isn’t that dissimilar to what one would expect in a similar dispute over a river.

The idea is that Mississippi probably has a much larger chunk of water underneath than Tennessee, so they think they should get more of the water that’s there, whereas Tennessee would argue they should get an equal cut.

Normally, the equitable apportionment rule weighs several factors, one of which is that the complaining state has to show how they were harmed by the other state’s taking of the water, putting a larger burden on Mississippi.

The bottom line is, this seems like some pretty amazing creativity on Mississippi’s part. The nature of water is that it fucking flows. Whether it’s above ground in a river, or below ground in an aquifer, that’s what water fucking does.

The idea that Mississippi is going to act like this groundwater is somehow supposed to be treated different than river water is a pretty big stretch in my mind. But fuck it, might as well waste the court’s time with this bullshit.

Justice Clarence Thomas came out asking if there was any previous cases where somehow, someone was taking water from a shared source, but not entering the property of the other state, and the courts offered a remedy that wasn’t “equitable apportionment.”

Justice Roberts and Justice Kagan also seemed as baffled as I am about how this could possibly be anything different than an equitable apportionment situation.

Read this bit of the transcript to see an argument only a lawyer could love. It is clear, he’s hoping they just won’t get that he’s full of shit.

John G. Roberts, Jr.

Well, what other cases would you — putting aside water, what other cases would you admit are subject to equitable apportionment?

John V. Coghlan

Your Honor, I’m not sure, and I’m not sure the equitable apportionment should or should not apply as a concept to groundwater.

I think there are reasons why, based on the nature of groundwater, it might not make sense. But I think the Court doesn’t need to address that question about whether or not equitable apportionment should apply to groundwater because, as I say, this is a different type of injury.

This is an injury where one state is reaching across the border and exercising control beyond its sovereign territory.

John G. Roberts, Jr.

Putting aside your reaching across the border, I mean, in — in the absence — you — you concede, don’t you, that the aquifer flows from Mississippi into Tennessee?

John V. Coghlan

We — we concede that there is some water that crosses the border, yes.

John G. Roberts, Jr.

Well, I suppose then you’re — you’re not saying that there’s no equitable apportionment of that water?

John V. Coghlan

I think, Your Honor, our point is that whether or not aquifers and groundwater should be subject to equitable apportionment is not the legal issue that we’re presenting before the Court. What we’re presenting is does Tennessee have the right to control the resource beyond Tennessee’s sovereign boundaries in Mississippi when Mississippi has not waived its sovereign right over control of that groundwater.

Elena Kagan

I’m not sure I understand that, Mr. Coghlan.

I mean, you’re not now saying that this is not an interstate water.

You’re conceding that it is an interstate water, is that correct?

John V. Coghlan

I don’t know that we’re conceding it, Justice Kagan.

Elena Kagan

You’re saying that you win even if it is an interstate water, is that correct?

John V. Coghlan

That’s correct.

Elena Kagan

Okay.

So you’re saying it’s irrelevant whether it’s an interstate water or not?

John V. Coghlan

That’s correct.

Elena Kagan

So let’s assume that it is an interstate water.

John V. Coghlan

Okay.

Elena Kagan

And you’re saying that the reason you should win is because — is because what? Because Mississippi is essentially doing something unnatural to have access to that interstate water? What —

John V. Coghlan

I’d say, Your Honor, it’s that Tennessee —

Elena Kagan

Tennessee, excuse me.

John V. Coghlan

That Tennessee is exercising control over groundwater while it is located within Mississippi’s sovereign territory.

Elena Kagan

Well, but Tennessee is doing things, I think you admitted, in — in — in one of the questions that Justice Thomas put to you — Tennessee is acting entirely within its own borders.

It is having effects on Mississippi, but that’s the case with respect to people using a flowing river, that if there’s a — a flowing river, Tennessee might be taking water from it, which has effects in Mississippi. So why is it any different?

John V. Coghlan

Justice Kagan, where I would disagree with you is that Tennessee is acting entirely within its own borders.

Their — their wells are physically located in Tennessee, but this pumping is creating a unnatural area of effect that’s predictable, measurable, and controllable, and that area of effect is having physical effect, unnatural —

Elena Kagan

Well, it’s have —

John V. Coghlan

— physical effects —

Elena Kagan

— it’s — it’s predictable, measurable, and controllable when an upstream state takes a lot of water from a river that that will leave the downstream state with less water.

All of that is predictable in the exact same way that one state is harming another, and yet we turn to equitable apportionment to deal with that.

John V. Coghlan

And I think, Your Honor, the difference as — as I — in this case is that in all of the Court’s equitable apportionment cases, the state who’s, you know, unnaturally having an effect on the water by taking and removing water is acting, and the effect of that is occurring — the direct effect of that is occurring entirely within the state’s sovereign territory and that whether or not the water ultimately doesn’t reach the downstream state because it doesn’t flow there is — is incidental, whereas, here, there is a direct intentional effect. The — the — the purpose of pumping is to move water.

And Tennessee is putting these wells next to the border, creating a vacuum, and of — of a measurable area of effect, and intentionally pulling the water out of Mississippi and exercising control, direct control I would say, over that groundwater while it is within Mississippi’s sovereign territory.

If you’re still as confused as I am as to what their justification is for treating this situation any different than others, then welcome to my world.

It should be pointed out, Mississippi is seeking millions in monetary damages, and Tennessee’s counsel was not shy about suggesting this was just an attempted money grab by Mississippi.

So now SCOTUS has to decide if Mississippi’s damages claim is legit, or some bullshit.

In a unanimous decision, SCOTUS agreed, Mississippi were being whiny little bitches, and Tennessee doesn’t owe them shit. Equitable apportionment was awarded, and Mississippi doesn’t get any more than that.

Hear oral arguments here

https://www.oyez.org/cases/2021/143-orig

Read about the case here