Water Wars: Solving Interstate Water Disputes Through Concurrent Federal Jurisdiction

Date01 November 2017
Water Wars:
Solving Interstate
Water Disputes
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.
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.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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