Over at SCOTUSblog, Columbia Law Professor Thomas Merrill offers a good one-paragraph summary of the meat of the opinion, which interpreted the water compact between the states:
The Red River Compact allocates water between four states, including Texas and Oklahoma. Among other things, it provides that each of the four states can take twenty-five percent of the excess water in a particular subbasin in the river. Texas argued that, under the compact, it could take twenty-five percent of all of the excess water, and that it had could go into Oklahoma’s part of the subbasin to do that. Oklahoma disagreed, arguing that Texas could only take twenty-five percent of the excess water from its own part of the subbasin. The Court agreed with Oklahoma, ruling that Texas was not authorized to take water from tributaries in Oklahoma without Oklahoma’s consent.
On the question that readers of the blog are likely more interested in--the commerce clause issue--Prof. Merrill writes:
The Court also rejected the Texas water district’s dormant Commerce Clause claim, but did so in a way that deprives this part of the decision of any significance. The Court read the water district to argue that the Commerce Clause was violated because Oklahoma was discriminating against out-of-state users with respect to water that was left “unallocated” under the Compact. The argument failed, according to the Court, because there would be no unallocated water in Oklahoma unless Texas could show that Oklahoma was taking more than twenty-five percent of the excess water, and it had not asked for an accounting to establish this fact. In effect, the Court read the compact as superseding the dormant Commerce Clause with respect to the twenty-five percent share allocated to each state; a constitutional issue would be presented only if it could first be established that water was available in a state above this threshold and the state was discriminating against interstate sources with respect to the excess.At this point you, like me, are probably asking what the significance of Tarrant will be going forward. Prof Merrill continues:
What then is significant about this decision for those not directly engaged in battles over the Red River Compact? The Court establishes, in a footnote, that a congressionally approved compact, as federal law, preempts state law that conflicts with the compact under the Supremacy Clause. It also establishes, in another footnote, that the presumption against preemption does not apply to interstate compacts, because “the States themselves have drafted and agreed to the terms” of the compact. There is some quotable language in the section about the states’ sovereign prerogative to control water resources within their territories, which will undoubtedly be trotted out in future cases involving apportionment of waters, the public trust doctrine, and the like. And portions of the Court’s opinion provide an excellent example of “pragmatic” interpretation, especially where it talks about the administrative difficulties that would be created by recognizing a cross-border right to divert water without additional guidance from Congress or the affected states.The Tarrant Regional Water District has now been sent packing and needing to develop new water sources quickly. Its director is already facing some tough questions about whether the $6M+ dollars spent in the battle were worth it.
