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Nov. 23, 2021 by Robin Kundis Craig

In Dispute over Groundwater, Court Tells Mississippi It's Equitable Apportionment or Nothing

This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

Less than two months after oral argument, in its first interstate groundwater case, the Supreme Court unanimously decided that Mississippi must rely on a doctrine known as equitable apportionment if it wants to sue Tennessee over the shared Middle Claiborne Aquifer. In an opinion by Chief Justice John Roberts, the court squarely rejected Mississippi's claim that Tennessee is stealing Mississippi's groundwater, noting that it had "'consistently denied' the proposition that a State may exercise exclusive ownership or control of interstate waters."

The Supreme Court's decision

As expected, the court's opinion in Mississippi v. Tennessee is short — 12 pages, half of which recount the long history of the case. Nevertheless, in this first opinion about states' rights to interstate aquifers, the court made three important decisions that are likely to guide future interstate disputes over natural resources.

First, the court identified three criteria for determining when equitable apportionment is the appropriate doctrine to govern an interstate dispute. Emphasizing that it has applied equitable apportionment to not only rivers and streams but also to interstate river basins, to groundwater pumping that affects surface water flows …

Nov. 23, 2021 by Robin Kundis Craig
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This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

Confirming expectations, the Supreme Court on Monday unanimously denied Mississippi’s claim that Tennessee is stealing its groundwater. If Mississippi wants to pursue its groundwater battle with Tennessee, it will have to file a new complaint with the court asking for an equitable apportionment of the Middle Claiborne Aquifer, which lies beneath Mississippi, Tennessee, and other states.

Defying everyone else’s agreement that equitable apportionment was its only cause of action, Mississippi argued before the Supreme Court that Tennessee had invaded Mississippi’s sovereign territory by allowing the Memphis Light, Gas and Water Division to pump so much water from the aquifer that it created a cone of depression that extended across the state line and caused groundwater that naturally would have remained under Mississippi to flow into Tennessee. For this …

Nov. 4, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."

In its initial outing, the U.S. Supreme Court's conservative majority said that the Food and Drug Administration (FDA) couldn't regulate tobacco without a clear congressional mandate. Most recently, it has applied the doctrine in striking down the Centers for Disease Control and Prevention (CDC) moratorium on evictions during the pandemic. It now seems poised to do so in a case involving EPA's power to regulate carbon emissions from coal-fired power plants.

Unfortunately, there are a host of major questions about the doctrine's legal scope …

Oct. 1, 2021 by Robin Kundis Craig
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This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

Mississippi v. Tennessee is not only the Supreme Court’s first oral argument of the 2021-22 term, but it is also the first time that states have asked the court to weigh in on how they should share an interstate aquifer. The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades — or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action.

The case will be argued on Monday, and it will be the court’s first in-person argument in a year and a half. In March 2020, the justices stopped meeting in person due to the coronavirus pandemic, and since then, all arguments have been conducted by phone. But the justices are returning to …

July 20, 2021 by David Driesen
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Environmentalists have complained for years about presidential control of the administrative agencies charged with protecting the environment, seeing it as a way of thwarting proper administration of environmentally protective laws. But the U.S. Supreme Court in two recent decisions — Seila Law v. CFPB and Collins v. Yellen — made presidential control over administrative agencies a constitutional requirement (with limited and unstable exceptions) by embracing the unitary executive theory, which views administrative agencies as presidential lackeys. My new book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, shows that the unitary executive theory is not only bad for environmental policy, but a threat to democracy’s survival, upon which environmental policy and all other sensible policy depends.

In The Specter of Dictatorship, I trace the modern movement toward a unitary executive back to former President Ronald Reagan’s executive order establishing centralized review of agency decisions by …

July 1, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.

Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held …

Oct. 19, 2020 by James Goodwin
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This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission.

For many of us, the prospect of a Supreme Court with Judge Amy Coney Barrett giving conservatives a solid 6-3 supermajority is nightmare fuel. The consequences extend beyond hot-button social issues, such as women's reproductive rights or individual access to affordable health care. If confirmed, Barrett would likely spur the aggressive pro-business agenda that the Court has pursued under the auspices of Chief Justice John Roberts.

A key item on that agenda is overturning something called Chevron deference, which some business groups have made a top priority in their broader campaign to bring about, as former White House Chief Strategist Steve Bannon put it, the "deconstruction of the administrative state." In other words, changing this key doctrine would undermine the ability of Executive branch agencies to regulate on a huge range …

Oct. 1, 2020 by James Goodwin
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This is the second part of a two-post set. Read the first post here.

In yesterday's post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.

Nondelegation. Progressives dodged a big bullet in 2019 when the Supreme Court handed down its decision in Gundy v. United States. In the case, conservatives sought to resuscitate a long-dormant doctrine known as nondelegation, which generally prohibits Congress from transferring its legislative authority to another branch, but again fell one vote short of doing so. Similar to Chevron deference, conservatives believe that the federal courts’ failure to enforce a more …

Sept. 30, 2020 by James Goodwin
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This is the first part of a two-post set. The second post is available here.

Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.

He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s …

Sept. 25, 2020 by Robert Verchick
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Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”

It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Nov. 23, 2021

Court Unanimously Favors Tennessee in Groundwater Dispute with Mississippi

Nov. 23, 2021

In Dispute over Groundwater, Court Tells Mississippi It's Equitable Apportionment or Nothing

Nov. 4, 2021

Major Questions About the Major Questions Doctrine

Oct. 1, 2021

In Term-Opener, Justices Will Hear Mississippi’s Complaint that Tennessee Is Stealing Its Groundwater

July 20, 2021

The Specter of Dictatorship Behind the Unitary Executive Theory

July 1, 2021

The Illusions of Takings Law

Oct. 19, 2020

Will Confirming Judge Barrett be the Death of Chevron Deference?