Wednesday, April 24, 2013

Water Law and the Dormant Commerce Clause - Is the Tarrant Case Much Ado about Nothing?

I've written previously about this year's water law case before the U.S. Supreme Court. Tarrant Regional Water District v. Herrmann, 11-889 (argued April 23, 2013). I've written about how this case has constitutional law implications, and that those of us in Florida and the Southeast should watch this one.

It may end up being much ado about nothing. (Sound familiar this term?) In today's oral argument, the implications of the dormant commerce clause on water law were barely mentioned. In fact, the dormant commerce clause was only mentioned three times. Suffice it to say the Justices don't seem interested in addressing that issue.

But in addressing what they were interested in, the Justices had a great deal of questions on this complex area of the law. As one report describes it,
Some questions sounded sympathetic to the thirsty Tarrant Regional Water District, which seeks Oklahoma water to serve Fort Worth-area customers. Other questions seemingly supported Oklahoma. Many questions, though, simply underscored the legal and technical complications now confronting justices dealing with what may be the biggest water law case of the year. “You read this brief that you submitted,” Justice Elena Kagan told the Obama administration attorney at one point, “and it gives you a kind of a headache.” 
At another point, Justice Antonin Scalia told a lawyer, “I don’t understand what you just said,” while Justice Sonia Sotomayor acknowledged that she “can’t make rhyme or reason” out of some provisions of a water deal. And following one drawn-out scenario that seemed to reach a dead end, Justice Stephen Breyer offered a simple one-word verbal shrug: “Anyway.” 
While some of the uncertainty may have been professed, in order to make a point, it did make clear what a different world water law can be. “They don’t address a lot of questions like this one,” attorney Charles A. Rothfeld, who represented Tarrant, noted following the seemingly inconclusive hourlong oral argument.
If you're as perplexed about all this as the Justices seemed to be, here is a great backgrounder article, complete with a graphic of exactly what water rights this compact covers. In the end, though, the Supreme Court will be addressing a very basic question: can Oklahoma keep Texas away from its water?