Who Gets the Drought: the Standard of Causation Necessary in Cases of Equitable Apportionment

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 73 No. 1

Who Gets the Drought: The Standard of Causation Necessary in Cases of Equitable Apportionment

E. Tate Crymes

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Who Gets the Drought: The Standard of Causation Necessary in Cases of Equitable Apportionment

E. Tate Crymes^*

I. Introduction

More than just an amenity, "[a river] is a treasure" noted Justice Holmes in a dispute over the waters of the Delaware River.¹ Water is a unique resource in that it is fluid and can move between borders of sovereign states. When water flows across state boundaries, there are often conflicts between the rights of the powerful upstream state and the vulnerable downstream state. Although water rights laws vary across the United States, most eastern states adopt the principle that the right to water is equal for both states.²

Along with the unique nature of water and the disputes that arise from its flow, droughts and their devastating consequences prove to dry up more than just water sources. Without Supreme Court precedent requiring a "but-for" standard of causation in matters of equitable apportionment, viable controversies between sovereign states will be settled in favor of the upstream state by the Court due to the existence of a drought. If the Supreme Court still believes the words of Justice Holmes that "[a river] is a treasure," a causation standard akin to a "but-for" standard will be required.

The long and tumultuous history of equitable apportionment law and the drought of cases arising in the east compared to the west has led to

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the seminal importance of each and every interstate water dispute. The Supreme Court's hesitancy to reach the question of what level of causation is required in cases of equitable apportionment in the most recent iteration of Florida v. Georgia (Florida II),³ leaves a looming unanswered question in well-established equitable apportionment law. Evidence from principles of equitable apportionment law generally, the rest of the opinion,⁴ other water (and other resource) disputes, and general tort law concepts may be used to predict and shape the future answer to this question.

Though there are few cases regarding equitable apportionment, the Court has adopted broad sweeping rules to address many of the issues that arise in these cases.⁵ The state requesting apportionment⁶ must prove an actual or threatened injury of serious magnitude caused by upstream water consumption and that state must prove that the benefits of apportionment substantially outweigh the harm that might result from the Court stepping in.⁷

In the Court's most recent equitable apportionment decision, Florida II, the Court explicitly refused to answer the question of what standard of causation is required for the first element—an actual or threatened injury of serious magnitude caused by upstream water consumption—for the court to equitably apportion state water use.⁸ Because of the unique nature of a claim for equitable apportionment, and the reverence the Supreme Court has for mandating resource allocation among sovereign states, a high standard of causation is necessary to effectively balance the harm and the good as required by the Supreme Court's equitable apportionment precedent. Though the Court refused to decide that issue in Florida II, a "substantial cause" test would most effectively advance the goals articulated by the Court in other recent equitable apportionment cases.

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Part II of this article will discuss background information regarding relevant principles of state sovereignty and the original jurisdiction of the Supreme Court to hear cases between states. Part III will focus on applicable equitable apportionment doctrine analysis with illustrations of seminal cases. The clear and convincing evidence standard will be analyzed in Part IV and the standard of causation of the alleged harm will follow in Part V. The Court's hesitancy to make an explicit holding on the requisite standard of causation will be noted in Part VI. An overall conclusion will reiterate the important points at the very end in Part VII.

II. State Sovereignty versus Original Jurisdiction of the Supreme Court of the United States

A right to streamflow is a justiciable issue recognized at common law.⁹ At one end of the spectrum of outcomes of state options for river use, it is within the physical power of the upstream state to completely cut off the water supply of the downstream state.¹⁰ This extreme use of the shared resource cannot be tolerated and the sovereign rights of both the upstream and the downstream state must be reconciled.¹¹ A river is a finite resource that must be "rationed among those who have power over it."¹² Because of the vulnerable nature of a downstream state, the Court is tasked with predicating a state's sovereign right to use water within its borders on reasonable use.¹³

For more than a century, the Supreme Court has recognized its inherent authority to equitably apportion interstate waters between states.¹⁴ To obtain equitable apportionment, a State must prove (1) an actual or threatened injury of serious magnitude caused by upstream water consumption and (2) that the benefits of apportionment substantially outweigh the harm that might result from the mandate.¹⁵ The complaining State must prove injury and causation by clear and convincing evidence.¹⁶ This burden of proof is very high and is equivalent to the statement that the evidence is substantially more likely to be true

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than untrue.¹⁷ For a Court to reach into a sovereign state's territory and mandate how the state may use its water, the Court must be absolutely convinced of the evidence of the harm and its cause.

A vital and sometimes scarce resource, water has been the subject of over 100 years of litigation in the Supreme Court.¹⁸ Much of this litigation has taken place between states in the western portion of the United States.¹⁹ This is relevant because of the differences in doctrines applicable to states in the east and the west. Differences in water scarcity and geographical makeup have driven the eastern states and the western states to follow different sets of doctrines regarding water rights.²⁰

Although individual states may adopt water rights laws that apply within the state, those laws will not apply to activities in other states. Thus, when there are disputes between states regarding waters that flow between the states, as opposed to disputes between individuals in the same state, the Supreme Court is called upon to intervene, exercising its original jurisdiction to resolve disputes arising between sovereign states.²¹ This authority was recognized and implemented by Article III of the United States Constitution²² and 28 U.S.C. § 1251(a).²³ Cases between states are unique in that the Supreme Court has original jurisdiction to hear these cases.²⁴ This original jurisdiction brings with it different requirements and procedural obligations than those that apply to cases and disputes among non-state entities before the Court.²⁵ At that point, the water rights laws of the states are considered as part of a broader analysis by the Court under its own jurisprudence regarding the doctrine of equitable apportionment.²⁶ The underlying water rights doctrine of the state still serves as a vital, yet secondary, part of the Court's analysis.²⁷

When two states are involved in interstate litigation over water rights, the extent of state sovereignty becomes relevant. Litigation must serve two goals to be an effective solution when states are parties to a suit

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involving a matter of sovereign interest.²⁸ These twin goals are (1) ensuring that due respect is given to sovereign dignity and (2) providing a working rule for good judicial administration.²⁹ Neither State may impose its own legislation or policy upon the other state.³⁰ "Equality of right" underscores the interactions of states between each other, yet each is called to make decisions and use resources that are naturally shared between the two equal sovereigns, so some higher power must be employed.³¹ Because of the unique nature of not only this shared resource but the rights held by each state to use that resource, disputes—though they may not be very common—are large in scale and require the Court to expend much time and resources.

A lawsuit between two sovereign states in the Supreme Court begins with the Court as fact finder.³² For efficiency, the Court will appoint a Special Master to facilitate the often-tedious, time consuming, and expensive process of fact-finding.³³ The Court has the discretion to appoint the Special Master, but in cases of original jurisdiction, for the sake of efficiency the Court will often appoint this person to investigate specific claims or to advise the Court on a technical issue.³⁴ The Special Master reviews the evidence from both parties and makes an official report and recommendation to the Court based on the evidence presented to the Special Master.³⁵

Upon reviewing the recommendation of the Special Master, the parties may object to the report and recommendation of the Special Master by filing exceptions with the Court to the recommendation of the Special

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Master.³⁶ Because the Special Master does not officially displace or supersede the Court or its authority to settle cases and controversies between sovereign states, upon objection—or the filing of exceptions—by an involved party, the Court may review the Special Master's findings before issuing its ruling on the facts of the case.³⁷

III. Applicable Doctrines

At common law, each state has its own scheme for analyzing water rights. Split roughly between the 100th meridian of the contiguous United States, the states east of this demarcation generally employ a form of riparian rights at common law.³⁸ Riparian rights or riparian ownership is an "[o]wnership interest in a river or stream derived from ownership of one of the banks."³⁹ West of the line of demarcation, the mostly arid states usually invoke the...