Keywords: Interstate compacts, commerce clause, water rights

Today, the Supreme Court granted certiorari in one case of interest to the business community:

Interstate Compacts Commerce Clause Water Rights

Today, the Supreme Court granted certiorari in Tarrant Regional Water District v. Herrmann, No. 11-889, a case that concerns a state's water rights under an interstate compact governing water allocation. The Supreme Court's decision will have important implications for both water management and the administration of interstate compacts.

Texas' Tarrant Regional Water District sought to acquire water from Oklahoma by exercising its rights under the Red River Compact, which governs the allocation and use of water from the Red River Basin among Texas, Oklahoma, Louisiana, and Arkansas. Oklahoma has laws that prohibit the export of water from the state. Tarrant filed a lawsuit against nine members of the Oklahoma Water Resources Board to challenge those Oklahoma laws, asserting that Congress's approval of the Red River Compact preempts Oklahoma's contrary laws and that Oklahoma's statutes restrict interstate commerce in water and thereby violate the dormant Commerce Clause. The district court granted summary judgment in favor of Oklahoma on both grounds, and the Tenth Circuit affirmed.

On the Supremacy Clause claim, the Tenth Circuit applied the presumption against preemption, which it called "particularly strong in this case," to conclude that the Red River Compact does not conflict with the Oklahoma laws. On the dormant Commerce Clause issue, the Tenth Circuit held that the language of the Red River Compact provides the "unmistakably clear" statement of congressional intent required by Supreme Court precedent to authorize state interference with interstate commerce.

The Supreme Court granted certiorari to determine (1) whether the Red River Compact preempts the Oklahoma laws, and (2) whether Congress' approval of the Red River Compact, which uses language present in almost all interstate water compacts, manifests "unmistakably clear" Congressional consent to the Oklahoma laws.

Mayer Brown represents the petitioner in this case. Absent extensions, amicus briefs in support of the petitioner will be due on February 25, 2013, and amicus briefs in support of the respondents will be due on March 3, 2013.

Previously published on January 4, 2013.

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