Mississippi v. Tennessee (143-Orig)

argument 143-Orig

Mississippi v. Tennessee

Supreme Court of the United States 1h 11m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is Mississippi’s core claim against Tennessee’s groundwater pumping?

John G. Roberts 0:00

We will hear argument first this morning in Original Case 143, Mississippi v. Tennessee. Mr. Coghlan.

Unknown 0:11

Mr. Chief Justice, it may please the Court. The Court should reject the Special Master's conclusion that equitable apportionment is Mississippi's sole remedy, because it's a remedy that redresses the wrong injury. Mississippi does not claim that defendants are taking more than their fair share of groundwater. Rather, Mississippi's case turns on a different question. Do defendants have the right to control groundwater while it is located within Mississippi's sovereign territory? And the Court has answered this question in Tarrant Regional Water District v. Herman. There, and considering an interstate surface river that had already been apportioned, the Court recognized an injury other than that of an upstream state harming a downstream state by taking too much water.

Unknown 0:51

Specifically, the Court recognized that one state may not divert water from another state's sovereign territory absent a waiver of that sovereignty. And here it's undisputed that Tennessee is diverting groundwater from Mississippi without Mississippi's permission. And they do so knowingly. In the 1960s, the U.S. Geological Survey warned them it was happening. But rather than stop, defendants opened new well fields within three miles of the border and substantially increased their pumping. As of 2014, when Mississippi filed its complaint, They had suctioned more than 400 billion gallons of groundwater across the border. They've increased the cost of Mississippi's own groundwater pumping. And by their own admission, defendant's pumping is draining an overlying surficial aquifer that record evidence indicates is pulling contaminants down into the aquifer at issue in this case.

Unknown 1:38

Now, the special master, in reaching its conclusions, asked whether the Middle Claiborne aquifer was an interstate resource. This was the wrong question to ask because the answer doesn't matter. Even if the aquifer is an interstate resource, Mississippi still possesses sole and exclusive control over groundwater within its sovereign territory as recognized in Tarrant and ensured by the Constitution. And defendants cannot force groundwater across the border without violating this sovereignty. I welcome the Court's questions.

Clarence Thomas 2:09

Well, Counsel, you seem to complain about Tennessee pumping water from Mississippi, but you admit that Tennessee does not enter across the border into Mississippi. Isn't that correct?

Unknown 2:28

Justice Thomas, we acknowledge that their wells are physically

Clarence Thomas 2:31

located. So, but the case that you cite as an intrusion from, I think it's Tarrant or Tarrant, wasn't that a cross-border situation?

Unknown 2:43

Well, yes, Your Honor, and we would say that this is a cross-border situation, too. So we certainly acknowledge that their wells are physically located in Tennessee, but the pumping is physically crossing the border, unnaturally changing the pressure levels in this aquifer.

Clarence Thomas 2:57

But isn't that true of any well? I mean, let's say it was a lake and Tennessee was pumping water on its side of the lake. Couldn't you argue that technically it was drawing water from Mississippi?

Unknown 3:12

I think so, Your Honor, and I think the key is what is the range of the unnatural effect that is controlling the water? And so here it's undisputed that these wells create cones of depression that are measurable, limited, and controllable and predictable. And so... Tennessee is exercising control over the groundwater within that area.

Clarence Thomas 3:37

But couldn't Tennessee make the exact same argument about you? Couldn't Tennessee, Arkansas, Missouri all make the same argument that whenever you pump, you're causing similar problems for them?

Unknown 3:50

They certainly could, and we should be held to the same standard, Your Honor. We don't believe that Mississippi is pulling any groundwater or exercising control over groundwater extraterritorially, but Certainly, if that was the case, Mississippi should be held to the same

Clarence Thomas 4:04

— Lastly, and I'll be done, do you have any cases that suggest that — or to support your argument on that point, that the mere fact that you draw from the same well without entering another State is actionable?