The U.S. Supreme Court on Friday denied a motion from Texas and New Mexico to enter a settlement over water rights to the Rio Grande river.
In an opinion for the majority, Justice Ketanji Brown Jackson wrote that the federal government has the right to be part of the agreement under a 1939 agreement on how to share the river’s resources.
“We cannot now allow Texas and New Mexico to leave the United States up the river without a paddle. Because the consent decree would dispose of the United States’ Compact claims without its consent,” the justice wrote.
If the states’ “consent decree [is] adopted, the United States would be precluded from claiming what it argues now—that New Mexico’s present degree of groundwater pumping violates the Compact” regarding how the state is carrying out groundwater pumping.
New Mexico officials have said implementing the settlement would require reducing the use of Rio Grande water through a combination of efforts that range from paying farmers to leave their fields barren, to making infrastructure improvements. Some New Mexico lawmakers have voiced concerns, but the attorney general who led the state’s negotiations had called the agreement a victory.
Farmers in southern New Mexico have had to rely more heavily on groundwater wells over the last two decades due to reduced flows and less water in reservoirs along the Rio Grande. Texas sued over the groundwater pumping, claiming the practice was cutting into the amount of water that was ultimately delivered as part of the interstate compact.
A proposed settlement between the two states would recognize several measurements to ensure New Mexico delivers water resources that are owed to Texas. New Mexico, meanwhile, agreed to drop its challenges against Texas in exchange for clarifying how water will be accounted for as it flows downstream. The agreement also outlined transfers if not enough, or too much, water ended up in Texas.
Last year, after a federal judge recommended that the Supreme Court take up the agreement between the three states, the New Mexico Attorney General’s Office praised the ruling and said that New Mexico farmers and municipalities would receive “their fair share of water” from the river.
“The parties’ dispute concerns water released from a federal project that the Bureau of Reclamation in the Department of the Interior operates, including by setting the diversion allocations for Project water users downstream,” the government wrote in a previous submission to the Supreme Court. “The Court’s interpretation of the parties’ rights and obligations under the Compact will affect how Reclamation calculates those diversion allocations.”
The initial lawsuit was submitted by Texas about a decade ago, accusing New Mexico of pumping groundwater below the Elephant Butte dam area and taking Rio Grande water that should be allocated to Texas.
Months before the Supreme Court’s decision Friday, Andrew Mergen, a Harvard environmental law professor, said that the U.S. government has a “strong interest” in the case because of “its obligations to Mexico,” which shares the Rio Grande along its border with Texas.
“Another reason is that this water is delivered in part through a reclamation project. The Bureau of Reclamation is an agency within the Department of the Interior, whose major function is to deliver water to irrigators in the arid [West],” he said, adding that the government also has an “obligation” to deliver water to Native American tribes in the area.
The only Supreme Court jurist to write a dissent was Justice Neil Gorsuch. His dissent was joined by Justice Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Chief Justice John Roberts as well as Justice Brett Kavanaugh, Sonia Sotomayor, and Elena Kagan joined Justice Jackson.
Justice Gorsuch wrote that with the Supreme Court’s decision, Texas and New Mexico are now left with “tens of millions of dollars in lawyers’ fees” and “with only the promise of more litigation to follow.”
“I fear the majority’s shortsighted decision will only make it harder to secure the kind of cooperation between federal and state authorities reclamation law envisions and many river systems require,” he added.
