OPINION:
On Friday, the Supreme Court will decide whether to hear a case impacting the economic future of the American West.
On its surface, the dispute - Tarrant Regional Water District v. Rudolf John Herrmann et al. - concerns water rights between Texas, a water-deficit state, and Oklahoma, a water-surplus state. In fact, the stakes are whether the West’s most vibrant metropolitan areas - from Fort Worth and Dallas to Denver and Phoenix, from Houston to Las Vegas, Salt Lake City and all of Southern California - as well as the oil and gas industry in North Dakota and Montana have reliable access to essential water now and in the decades ahead. One way or the other, the decision will have an impact on the nation’s hopes for energy independence and economic growth in many of our fastest-expanding population centers.
For water, the West’s most overstretched resource, all of these areas depend on interstate agreements, ratified by Congress and incorporated in federal law. Some of the agreements - called interstate compacts - go back 80 years. Their stable rules have provided the essential backdrop to economic development in much of the nation from the Great Plains to the Pacific and down to the Mexican border.
In September, the court at the heart of the region, the 10th U.S. Circuit Court of Appeals, reread terms in one such agreement between Texas, Oklahoma, Arkansas and Louisiana - the Red River Compact. Taking a provision universal to interstate water pacts, the court said that despite decades of history and the obvious reason states entered into these binding arrangements in the first place, a state could withhold water otherwise due it under the law from another state.
No act of legal revisionism by any circuit court in the country has so much potential to generate economic disruption. If the Supreme Court declines to review, the ruling will become law. Through the 10th Circuit’s states flow such essential rivers as the Colorado, on which cities from Denver to Los Angeles and San Diego depend, and the Yellowstone, the source of water for the northern fracking fields, not to mention Fort Worth and Dallas, which are directly involved in the appeal. Already Wyoming, another 10th Circuit state, is considering withholding Colorado River water from downstream Colorado and Denver.
Creative rereading of long-established terms of law and contract is exactly the kind of judicial revisionism that has fostered chaos in fields ranging from tort to environmental law. Do we really need the vast volume of litigation and legal surprises that have become all but routine in those sectors seeping into yet another vital area of the nation’s legal structure? In our factious contemporary political life, can such far-reaching interstate agreements as our water compacts, signed in the more placid periods, be put back together if the courts pull them apart?
On Friday, the Supreme Court will decide whether or not to review the 10th Circuit decision in Tarrant. On small hinges, great doors swing. On this case rests a vast future for the American West and, with it, for the entire country.
James M. Oliver is general manager of the Tarrant Regional Water District, a party in this suit.
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