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Supreme Court cites law profs’ brief in water fight ruling

June 18, 2013

In a rivalry between Texas and Oklahoma over water from the Red River that divides the two states, Tulane Law School's Mark S. Davis and Christopher J. Dalbom were among several law and political science professors who argued that Oklahoma could block cross-border purchase of water by its southern neighbor. And the U.S. Supreme Court on June 13 unanimously agreed.

Justice Sonia Sotomayor, writing for a 9-0 court, said that any agreement by which states intend to allow the transport of a vital resource across state lines should say so explicitly.

Sotomayor cited an amicus brief from a group of six legal scholars that included Davis and Dalbom for their compilation of examples of multistate compacts that specify how the mechanics of cross-border relationships will operate.

Davis is a senior research fellow and director of Tulane Law School's Institute on Water Resources Law and Policy, and Dalbom is a senior research fellow at the institute.

The case of Tarrant Regional Water District v. Herrmann (No. 11-889) involved a long running dispute over whether the TRWD, a public entity that serves more than 1.7 million people in an 11-county area of North Texas, could purchase water from a Red River tributary in Oklahoma.

TRWD argued that Oklahoma couldn't block the sale because of the Red River Compact, a water-sharing agreement signed by Texas, Oklahoma, Louisiana and Arkansas in 1978 and approved by Congress in 1980. But the compact's language didn't plainly address the type of purchase TRWD envisioned. The amicus brief argued that states "have a paramount sovereign interest in their own water;" as such, if they're willing to let other states cross the border to get their water, they should make those intentions clear.

The brief cited better-drawn compacts involving rivers across the country, including the Bear, Arkansas, South Platte, Big Blue, Rio Grande, Snake and Belle Fourche.

Sotomayor took the legal scholars' view: "States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence," she wrote.

Davis said that even though the case has been decided, water fights aren't over.

"The compulsion of dry states to find water anywhere is only getting greater," Davis said. "Water demand and water shortages are moving us into uncharted legal territory, and the future will belong to the prepared."

 
   


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