While this post is not going to be of profound interest to most practitioners, it serves at least two purposes. First, it marks the new flow of formal opinions of the Court for the current term, and second, it is a reminder that there is a small category of cases that proceed to the Court in its original jurisdiction—one that includes suits between states.
Article III, section 2, of the Constitution provides that “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Today’s case is that of Mississippi v. Tennessee, an original action brought by Mississippi, seeking damages related to the pumping of groundwater by the City of Memphis from a source known as the Middle Claiborne Aquifer. Mississippi claimed an exclusive right to the water at issue, notwithstanding the facts that the aquifer lies below no fewer than eight states and the wells from which Memphis was pumping are all in Tennessee.
Applying the doctrine of equitable apportionment—which aims to produce a fair allocation of a shared water resource between two or more states, based on the principle that states have an equal right to reasonable use of shared water resources—the Court held in favor of Tennessee and dismissed Mississippi’s claim with prejudice.
One suggests that as the nation has begun to experience the effects of climate change and population shifts, disputes like this are going to increase. In thinking about equitable apportionment of a resource among the states, Ben Franklin’s famous statement, uttered in an entirely different context—that “we must, indeed, all hang together …”—comes to mind.