Tuesday, March 5, 2013

Must Congress Approve an Interstate Water Compact's Restrictions on Interstate Commerce? An Update on the Tarrant Case

I reported in January that the U.S. Supreme Court would hear a case dealing with how an interstate water compact relates to the commerce clause. Tarrant Regional Water District v. Herrmann, 11-889 (cert. granted Jan. 4, 2013). 

As Megan Herzog discussed at Legal Plant, the case "could have consequences for urban metropolises seeking to satisfy their growing populations’ water demand as climate change impacts water supply reliability, as well as for states experimenting with protectionist policies to preserve natural resources within their borders." She further thinks that "it is unlikely that the Supreme Court will reach a Commerce Clause analysis, but let us nonetheless take Tarrant as an opportunity to evaluate whether anti-export laws like Oklahoma’s hold water. Efficiently managing scarce resources in the face of climate change requires an interstate market; the kind of retaliation-bating, “what’s mine is mine” mentality that Oklahoma displays in its anti-export water laws is not productive." Another commentator, a water law attorney, wrote that the decision below "bodes poorly for water right holders in a broad range of relations with their respective states, and will likely have an impact on the interpretation of other interstate stream compacts or interstate water transfers in streams without compacts in place."

Some of my readers will probably recall that Florida is not a signatory to a water compact. Even so, it was in the past, and will probably have to work one out in the future with Alabama and Georgia. We have seen our own water wars here, though they haven't been as severe as those the Wall Street Journal describes in its backgrounder on Tarrant . So this will be a case for us in the Southeast to watch, since it could determine what that future compact will look like. One blogger explained the potential implications of the case outside of Oklahoma, Texas, and Arkansas:
[I]t’s the Water District’s constitutional argument that the [we] should pay attention to. The Water District claims that the “protectionist” character of the Red River Compact violates the dormant Commerce Clause of the U.S. Constitution. The Commerce Clause of Article 1 of the U.S Constitution gives Congress the exclusive authority to regulate interstate commerce. The dormant Commerce Clause is the legal theory that because Congress regulates interstate commerce, States cannot enact legislation that unreasonably restricts interstate commerce and prevents States from being “protectionist” with their natural resources. 
According to the Water District, the Supreme Court has consistently required that Congress unambiguously acknowledge and approve a statute’s or a Compact’s unreasonable restrictions on interstate commerce .... In the Water District’s view, Congress has to explicitly approve the restrictive nature of the Compact and Congress’ intent cannot be gleaned by looking at the restrictive language in the Red River Compact as a whole. 
Thus, if the Red River Compact falls, other compacts may be subject to challenge. The District's opening brief and supporting amicus briefs have been filed. The questions presented are: 
  1. Whether the Red River Compact, which allocates to each of the signatory States an “equal share” of the water in a specified subbasin, preempts discriminatory Oklahoma laws that prevent certain signatory States from obtaining their equal share of that water.
  2. Whether Congress’s approval of Compact language providing that the Compact shall not “be deemed ... to interfere” with each State’s “appropriation, use, and control of water .. not inconsistent with its obligations under this Compact” manifests an unmistakably clear congressional consent to discriminatory state laws.
On the first question, the District states that the decision below is unsupportable because the plain language of the "Red River Compact guarantees Texas equal rights to the use of specified water." On the Commerce Clause question, which is probably more interesting for readers of this blog, the District summarizes its argument: 
Oklahoma’s discriminatory water legislation, which would preclude Texas users from obtaining water located in but not apportioned to Oklahoma, also cannot survive scrutiny under the Commerce Clause. That legislation, which discriminates on its face against out-of-state water users, is virtually per se unconstitutional. Although recognizing that principle, the Tenth Circuit thought that Congress authorized Oklahoma’s legislation by approving the Compact. But such authorization is found only when Congress expressly announces its approval for discriminatory state laws. The provisions of the Compact invoked by the court of appeals, however, say nothing whatsoever about the Commerce Clause or state authority to discriminate against interstate commerce. It is immaterial that some provisions of the Compact generally defer to state water law; as this Court has recognized, such general language must be understood as deferring only to valid state law, an ingredient of which is conformity with the requirements of the Commerce Clause.
The United States, though, wrote in its amicus brief that the Supreme Court should vacate and remand the case because the interstate compact preempts Oklahoma state law, and that the Commerce Clause question shouldn't be reached. We'll see how Oklahoma responds soon.