Water Wars: Solving Interstate Water Disputes Through Concurrent Federal Jurisdiction

• Date: 01 November 2017

47 ELR 10980 ENVIRONMENTAL LAW REPORTER 11-2017

Water Wars:

Solving Interstate

Water Disputes

Through

Concurrent

Federal

Jurisdiction

by Catherine Danley

Catherine Danley is a J.D. candidate at the University

of Utah S.J. Quinney College of Law. is Article

received honorable mention in the Environmental Law

Institute’s 2016-2017 Henry L. Diamond Constitutional

Environmental Law Writing Competition.

Summary

As climate change shifts precipitation patterns, warms

seasonal temperatures, and causes severe droughts, the

value of and demand for water rises. Consequently,

competition for water resources is likely to increase

among the states and lead to more Supreme Court

original jurisdiction cases over water disputes than ever

before. While the Court holds original jurisdiction

under Article III of the Constitution, its exclusive

jurisdiction over interstate disputes is a legislative

construction, and should be altered to allow for an

alternative process. Congress should amend 28 U.S.C.

§1251(a) to establish an appellate process for original

jurisdiction suits, so many eyes can monitor the many

issues inherent in interstate water conicts.

“Water, water, everywhere, Nor any drop to drink .”1



Water is one of the most important natu ral

resources to human existence,2 and in a world

with a changing climate, its value is on the rise.3

Because “[r]ivers, lakes, and groundwater aquifers have no

regard for neatly drawn state lines and other geopolitical

boundaries,”4 competition for water between the states

poses concerns over increasing interstate litigation, as well

as the ever-inherent risk of competing, armed sovereign

states: civil war.5 While the U.S. Supreme Court holds

original and exclusive jurisdiction over interstate disputes,6

the Court relies heavily on commissioned individuals—

special masters—to complete the fact-nding processes

and oer recommendations.7 is increasing deference on

special masters essentially creates a series of judicial abdica-

tions and greater potential for error.8 Consequently, there is

a pressing need for an appellate process to fully adjudicate

future conicts.

is Article addresses the need to alter the judicial pro-

cess ava ilable to states in interstate water conicts. Part I

examines the statutory provisions that created the Supreme

Court’s origina l and exclusive jurisdiction over interstate

disputes. Part II examines the history and process of inter-

state water disputes, in addition to their likely increase in

future litigation. Part III proposes amending 28 U.S.C.

§1251(a) to provide concurrent federal jurisdiction over

interstate disputes, which would oer improved judicial

and appellate processes to better handle interstate water

conicts in the future. Part IV concludes.

I. Original Jurisdiction

Original jurisd iction cases in the Supreme C ourt are rare

and often perplexing events, utilized most often by the

1. S T C, T R   A M 17

(New York, D. Appleton 1857).

2. Robert W. Adler,  , 29

S. E. L.J. 1, 3-4 (2010).

3. Jonathan Horne,     , 6 N.Y.U. J.L. 

L 95, 101 (2011); Robert Haskell Abrams, Water, Climate Change,



, 42 ELR 10433, 10434 (May 2012).

4. L. Elizabeth Sarine,     

Masters in Interstate Water Disputes, 39 E L.Q. 535, 537 (2012).

5. J F. Z, I D: T S C’

O J 1 (2006). See South Carolina v. North Carolina,

558 U.S. 256, 289, 40 ELR 20019 (2010) (Roberts, J., concurring in

judgment, and dissenting in part); Texas v. New Mexico, 462 U.S. 554, 571

n.18 (1983).

6. See U.S. C. art. III, §2, cl. 2; 28 U.S.C.A. §1251.

7. Sarine, supra note 4, at 552; Anne-Marie C. Carstens, Lurking in the

   

Jurisdiction Cases, 86 M. L. R. 625, 628 (2002).

8. See Sarine, supra note 4, at 537-38.

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