Tuesday’s oral argument in Tarrant Water District v. Herrmann was another reunion of the Solicitor General’s Office. Counsel for the petitioner Texas water district, Charles Rothfeld, is an alum of the SG’s office, as is Lisa Blatt, counsel for the Oklahoma Water Resources Board. The third lawyer who argued for the United States, which filed an amicus brief in the case, Ann O’Connell, is currently an Assistant to the Solicitor General. It was all pretty chummy. At one point, for example, Blatt said she hated to point out a flaw in the United States’s argument, because she used to work for it. The Chief Justice had to remind her, “You are representing Oklahoma.” Another veteran of the SG’s office has appeared so frequently in the Court this term that the stenographer evidently has a macro that types his name automatically. This is the only explanation I can think of for why Rothfeld is identified at one point in the transcript as “Mr. Clement.”
The argument was not without its humorous moments, often supplied by the droll Chief Justice. When the argument turned to the question whether Texas could take water directly from the Red River, notwithstanding the claim that it was too salty, Ms. Blatt responded that it could: “They think all the water that their residents drink is salty, but they still are drinking it.” To which Chief Justice Roberts said simply: “Texans.”
The question in the case is whether Texas has the right to enter Oklahoma to take water that flows into the Red River and pipe it back to Texas. Oklahoma has passed laws designed to prevent this kind of cross-border diversion of surface water. When the litigation commenced, the central issue was whether these laws violate the dormant Commerce Clause. As the case has been presented to the Supreme Court, the central issue is whether such cross-border takings are either (a) authorized or (b) prohibited by something called the Red River Compact. If they are authorized, then the Compact preempts the Oklahoma laws. If they are prohibited, then the Compact represents a congressional authorization of discrimination against out-of-state transfers that supersedes the dormant Commerce Clause.
Mr. Rothfeld’s strategy at oral argument was to get the Court to think about the interpretation of the Compact as an ordinary exercise of statutory interpretation of the textualist variety. The relevant language of the Compact gives the four signatory states, including Oklahoma and Texas, “equal rights” to excess water in a particular subbasin of the river that straddles Oklahoma and Texas, Reach II, subbasin 5. Rothfeld pointed out that other provisions in the Compact expressly limit diversions of water to persons within the borders of a particular state. The omission of any reference to borders in Reach II, subbasin 5, he argued, means that any of the four states could take water from this area, without regard to state borders.
Rothfeld was peppered with questions about how such cross-border takings would be administered. Oklahoma is a prior appropriation state. If Texas has the right to take up to twenty-five percent of the water in Reach II, subbasin 5 from points inside Oklahoma, does this mean that Texas would be given a priority higher than appropriators in Oklahoma? Or would Texas have to get in line behind Oklahoma appropriators, or purchase rights from existing Oklahoma appropriators? How would Texas get the water across the Red River to Texas? Would it have the power of eminent domain to construct a pipeline in Oklahoma?
Rothfeld assured the Court that the Texas Rangers would not “descend on Oklahoma and seize the water.” The Oklahoma Water Resources Board would apply its ordinary rule of priority to all applicants, including those from Texas. And any appropriator of water in Oklahoma, he said, can use the power of eminent domain to transfer the water to the site of its ultimate use. But the water board would have to assure that Oklahoma appropriators did not take more than twenty-five percent of the available water, and that Texas appropriators did not take more than twenty-five percent of the water. He did not explain how the Oklahoma board would make the calculations necessary to render these determinations.
Ms. O’Connell defended the position the United States advanced in its merits brief, namely, that Texas was entitled to take water from Oklahoma, but only if Texas could show that it was not able to take its equal share of water from appropriations made on the Texas side of the border. O’Connell was also peppered with questions about how such a cross-border right, provided such water was not available on the Texas side of the border, could be administered. She consistently answered that these questions would have to be worked out by the lower courts on remand.
Ms. Blatt perhaps should have taken a cue from the first thirty minutes of the argument, and hammered on the point that cross-border appropriations of water would raise many difficult administrative problems, for which the Compact provides no solution. Instead, she quickly got entangled in questioning about whether there was any place where Texas can take water directly from the Red River. She did eventually land a number of blows. She made the point that no existing water compact allows cross-border appropriations without an express authorization in the language of the compact. She emphasized that no claim for cross-border rights had been made in the first three decades of implementation of the Compact. She noted that no system of accounting had been developed that would allow a state like Oklahoma to know whether other states had or had not already taken their twenty-five percent share of the water within their own borders. She observed that the “equal rights” language in the Compact could easily mean equal rights of access, just as we all have equal rights to use the highway but some use it more than others. Finally, she stressed that Oklahoma regards water as a public trust held for “the exclusive benefits of Oklahoma,” and that if Texas could enter Oklahoma to divert water to Texas, there would be no political accountability in Oklahoma for its actions. To which the Chief Justice replied: “Compacts compromise the individual state sovereignty. That’s the whole point of them.”
It is always hard to predict outcomes based on an argument. But a large number of Justices seemed concerned about the practical problems created by a cross-border right of access, and the prospect that this would create for extensive dispute and litigation. As Justice Kagan noted, considering all the complexities “gives you kind of a headache.” The headache would go away, she noted, if the Compact is interpreted not as an “entitlement” to water in the contested subbasin, but as a cap limiting each state to no more than twenty-five percent. In other words, a ruling for Oklahoma would be less disruptive to peace along the Red River, and the Texans would have to make do with drinking salty water.
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