The Trump administration will join Texas’ water allocation lawsuit against New Mexico, after the U.S. Supreme Court ruled Monday that it may pursue claims under a 1938 accord between several western states.
Though the ruling was limited to the facts at hand, the Court has now opened the door to federal intervention in agreements between the states, known as interstate compacts.
Justice Neil Gorsuch delivered the opinion for a unanimous Court.
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At issue in the case is the allocation of vast reserves of the Rio Grande, which irrigates a parched expanse of west Texas and northern Mexico. The river, which flows from the Colorado Rockies and empties into the Gulf of Mexico, forms a significant stretch of the U.S.-Mexico border.
Colorado, New Mexico, and Texas enacted an interstate agreement called the Rio Grande Compact in 1938, providing for the equitable sharing of its waters.
The Constitution allows states to form treaties with one another to provide for their mutual benefit. Dozens of these agreements exist between the states, addressing topics like lotteries, forest fire suppression, railroad maintenance, marine fisheries, and the storage of radioactive waste. After a group of states form such a compact, Congress must grant final approval.
Under the terms of the Rio Grande accord, Colorado meets an annual water delivery duty at the state border with New Mexico. In turn New Mexico meets a similar duty at the Elephant Butte Dam near the town of Truth or Consequences. Federal agencies then distribute water from Elephant Butte throughout Texas. A portion of the water is also allocated to Mexico pursuant to a 1906 treaty.
Texas is currently suing New Mexico for alleged violations of the compact. Texas says New Mexico has siphoned ground and surface water away from the Rio Grande south of Elephant Butte, depriving other parties of water guaranteed under the agreement. The federal government, which supports Texas’ claim, asked to intervene as a party in the case.
The Supreme Court hears all cases in which one state sues another. In these instances the Court is essentially acting as a diplomatic institution, mediating disputes between sovereign powers.
The question before the justices was how the government could pursue its objectives in this case. Texas and the Justice Department said the government can intercede under the compact itself, while New Mexico says it must bring its claim under other bodies of law.
The answer to this question could decide the water dispute, since New Mexico will have a hard time prevailing if the Trump administration can proceed through the agreement.
The Court’s Monday opinion sided with Texas and the Justice Department. Though Gorsuch cautioned the ruling was limited to the particular facts of this case, the justices have now raised the possibility of future federal involvement in interstate agreements.
Citing four unique criteria, the Court explained that the federal interests in the agreement were significant enough to warrant their intervention under the compact. First, the government itself administers much of the river through the Interior Department’s Bureau of Reclamation. Second and third, New Mexico’s actions could compromise the government’s ability to meet its contract requirements in Texas and treaty obligations with Mexico.
Finally, the government’s claims and goals coincide exactly with those of Texas.
“Taken together, we are persuaded these factors favor allowing the United States to pursue the compact claims it has pleaded in this original action,” Gorsuch wrote.
James Hallinan, a spokesman for New Mexico Attorney General Hector Balderas, said the state will ultimately vindicate the rights of its water users, Monday’s ruling notwithstanding.
“Attorney General Balderas will continue to vigorously defend the rights of New Mexico water users and work with all parties to seek a fair resolution for New Mexicans,” he said. “Today’s ruling was a preliminary matter clarifying the United States’ role in the case.”
The Court has occasionally made the government party to interstate disputes relating to water projects or Native American affairs, but it has generally proceeded as an amicus (or friend-of-the-court) or under other areas of law, not through a compact itself.
At oral arguments in January, Marcus Rael, an attorney representing New Mexico, warned that a ruling for the Justice Department could give Washington a stake in every last convention among the states.
“You’re opening up a dangerous door in which the United States can raise implicit rights not only this compact but in every compact across the country,” he said.
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