WASHINGTON – The Supreme Court dived into the water dispute between Texas and Oklahoma Tuesday in an attempt to decide what 25 percent means and which state is telling the truth about how much water it has.
Four states–Oklahoma, Texas, Louisiana and Arkansas–signed a compact to share water from the Red River in 1980. The Red River Compact divides the water among the four states, but questions remain about which state gets how much water.
The fast-growing Dallas-Fort Worth area says it is short of water and Oklahoma has more than it needs. But Oklahoma says Texas is using more than its share and should not be able to claim water in Oklahoma.
At the center of the arguments Tuesday was whether the 25 percent share per state should be considered an entitlement or a cap. A second argument was whether an Oklahoma law, that bars other states from taking water from inside Oklahoma’s borders, even when other states haven’t reached their 25 percent share, should be allowed under the Red River Compact or not.
“In other compacts, when they really mean to give one state the right to another state’s water, the provision in the compact is much clearer, more definite.” Justice Ruth Bader Ginsburg said.
“It’s kind of sketchy, isn’t it?” Justice Stephen G. Breyer asked about information missing from the Red River Compact.
“It doesn’t say what happens when Texas can’t get the 25 percent,” Breyer said. Charles Rothfeld represented Texas, arguing that Texas doesn’t have enough water within its boundaries and that, according to the Red River Compact, it has the right to go across the state line to get its full share.
“When you say Texas has the right, it sounds like you’re going to send in the National Guard or the Texas Rangers,” Justice Anthony M. Kennedy said, provoking laughter in the courtroom.
Lisa Blatt, representing Oklahoma, said that the Red River Compact does not entitle each state to 25 percent of the water in the southeastern part of Oklahoma.
“The compact no way, no how, entitles the parties to equal 25 percent,” Blatt said. She explained an analogy to Justice Sonia Sotomayor.
“You and I can have equal rights to the family car and equal rights to the highway. This doesn’t tell us how many hours we can spend on the highway,” Blatt said.
She also said Texas incorrectly measured how much water it has. The two states have cited different numbers. Texas has claimed it has as little as 11 percent, and Oklahoma has claimed Texas may have up to 29 percent.
“If we lose this case,” Blatt said, “Texas is going to be in a pickle trying to prove they can’t get 25 percent.”
Part of the problem, for both the justices and the lawyers, is that nobody really knows how much water is in each state.
“The focus in your argument [is] on state sovereignty, but this is an interstate compact. And the whole point of interstate compacts is that we have to – each state has to give up a little here or a little there to solve a problem,” Chief Justice John G. Roberts said.
Neither state has an abundance of water – both are in a drought that is comparable to the 1950s, Mark Svoboda, a climatologist from the National Drought Mitigation Center, said in an interview earlier this month.
But the justices weren’t concerned about the drought. It came up just once, in a hypothetical situation Sotomayor brought up.
Ann O’Connell, assistant to the U.S. solicitor general, argued on behalf of Texas. She said the Red River Compact overrules any state law that differs from what the compact allows.
“What we’re saying is that if there’s a state law that conflicts with the allocation or poses an obstacle to the allocation of water under the compact, then it’s pre-empted,” O’Connell said.
O’Connell suggested that the court send the case back to the 10th U.S. Circuit Court of Appeals for more evaluation.
Justice Elena Kagan seemed to think that might be a good idea.
“This brief that you submitted,” Justice Kagan said to O’Connell, “It gives you kind of a headache.”
The court is expected to rule on the case, Tarrant Regional Water District v. Hermann, before the end of June.
Amy Slanchik Reports 