ArtIII.S2.C1.14.3 Modern Suits Between States

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Beginning with Missouri v. Illinois & Chicago District,1 which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have been a source of suits between states. Such suits have been especially frequent in the western states,2 where water is in short supply, but they have not been confined to any one region.3 In Kansas v. Colorado,4 the Court established the principle of the equitable division of river or water resources between conflicting state interests.5

In the 1931 case, New Jersey v. New York,6 New Jersey sought to enjoin New York for diverting water into the Hudson River watershed for New York’s use in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and harm the saline contents of the Delaware River. Justice Oliver Wendell Holmes, writing for the majority, explained:

A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may.7

In Florida v. Georgia, the Supreme Court issued two opinions concerning how to apportion water from an interstate river basin known as the Apalachicola-Chattahoochee-Flint (ACF) River basin.8 Florida, the downstream state, alleged that Georgia overconsumed the ACF basin’s waters, leading to the collapse of its local oyster industry and harming Florida’s river ecosystems.9 After agreeing to exercise original jurisdiction, the Supreme Court appointed a Special Master to take evidence and issue a report with recommendations on how to resolve the dispute.10 The Court explained that “given the complexity of many water-division cases, the need to secure equitable solutions, the need to respect the sovereign status of the States, and the importance of finding flexible solutions to multi-factor problems, we typically appoint a Special Master and benefit from detailed factual findings.” 11

The Special Master in Florida v. Georgia recommended that the Court dismiss the case because the relief Florida sought—a limitation on Georgia’s consumptive use of ACF Basin waters—would not redress the alleged injury without also joining the Army Corps of Engineers (Corps) as party to the case.12 Although the Corps operated a dam that controlled the amount of water flowing southward into Florida, it was not a defendant in the suit because it was protected by sovereign immunity.13 The Special Master recommended dismissing the case based on the “single, discrete” conclusion that Florida’s injury could not be redressed without a judicial decree that was binding on both Georgia and the Corps as defendants.14 Florida lodged exceptions to the Special Master’s report, and, in a 5-4 opinion issued in 2018, the Supreme Court declined to adopt the Special Master’s recommendation of dismissal.15

At the outset of its 2018 opinion, the Supreme Court summarized “several related but more specific sets of principles” that govern the doctrine of equitable apportionment in interstate disputes between two states.16 The Court remanded the case to the Special Master assigned to the dispute, concluding that he had applied too strict a standard on the issue of redressability.17 The Court advised the Special Master that, “[c]onsistent with the principles that guide our inquiry in this context, answers need not be ‘mathematically precise or based on definite present and future conditions.’ Approximation and reasonable estimates may prove ‘necessary to protect the equitable rights of a State.’ . . . Flexibility and approximation are often the keys to success in our efforts to resolve water disputes between sovereign States that neither Congress ‘nor the legislature of either State’ has been able to resolve.” 18

On remand, a newly appointed Special Master recommended that the Supreme Court dismiss Florida’s request for equitable apportionment, and the Court agreed.19 In a unanimous opinion issued in 2021, the Supreme Court held that Florida did not meet its evidentiary burden to show that Georgia’s consumption of ACF Basin waters caused Florida’s alleged harm.20 Rather, the evidence suggested Florida’s mismanagement of its own fisheries contributed to its oyster industry’s collapse, and Florida did not show any “actual” or “real-world” damage to its ecosystems.21

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a state as the donee of the holders of bonds issued by another state, and the ability to collect thereon;22 by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia that the latter owed the former;23 and by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas.24 Other examples include a suit brought by one state against another to enforce a contract between the two,25 a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,26 and a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.27

In Texas v. New Jersey,28 the Court adjudicated a multistate dispute about which state should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.29

In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court relied on the liberal construction of the term “controversies between two or more States” that the Court enunciated in Rhode Island v. Massachusetts,30 and Chief Justice John Marshall fortified in dictum in Cohens v. Virginia31 that “it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.” 32

180 U.S. 208 (1901). back
E.g. Montana v. Wyoming, 563 U.S. 368 (2011); Texas v. New Mexico and Colorado, No. 141, Orig., slip op. at 1 (U.S. Mar. 5, 2018); Texas v. New Mexico, No. 65, Orig., slip op. at 1 (U.S. Dec. 14, 2020). back
See, e.g., Florida v. Georgia (2018 Florida), No. 142, Orig., slip op. at 1 (U.S. June 27, 2018) ( “This case concerns the proper apportionment of the water of an interstate river basin. Florida, a downstream State, brought this lawsuit against Georgia, an upstream State, claiming that Georgia has denied it an equitable share of the basin’s waters.” ). back
206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980). back
See also 2018 Florida, slip op. at 10 ( “Where, as here, the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment governs our inquiry.” (citing Colorado v. New Mexico, 459 U.S. 176, 183 (1982)); Virginia v. Maryland, 540 U.S. 56, 74 n.9 (2003) ( “Federal common law governs interstate bodies of water, ensuring that the water is equitably apportioned between the States and bodies of water, ensuring that the water is equitably apportioned between the States and that neither State harms the other’s interest in the river.” ). back
283 U.S. 336 (1931). back
Id. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against citizens of other states to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the filing because the presence of complex scientific issues made the case more appropriate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 (1983) back
2018 Florida, slip op. at 1; Florida v. Georgia (2021 Florida), No. 142, Orig., slip op. at 1 (U.S. Apr. 1, 2021). back
2021 Florida, slip op. at 5. back
See 2018 Florida, slip op. at 6. back
Id. at 14. back
Id. at 7. back
Id. at 2–3, 6. back
Id. at 7 (emphasis in original). back
Id. at 15. back
2018 Florida, slip op. at 10. Specifically, when asked to resolve such a dispute under the doctrine of equitable apportionment, the Court should consider the following principles: (1) that the two states “possess an equal right to make a reasonable use of the waters of the stream” ; (2) that “the Court’s ‘effort always is to secure an equitable apportionment without quibbling over formulas’ . . . [and w]here '[b]oth States have real and substantial interests in the River,’ those interests ‘must be reconciled as best they may be’” ; (3) that, “in light of the sovereign status and ‘equal dignity’ of States, . . . the complaining State must demonstrate that it has suffered a ‘threatened invasion of rights’ that is ‘of serious magnitude’” ; and (4) that “where a complaining State meets its ‘initial burden of showing ‘real or substantial injury,’ this Court, recalling that equitable apportionment is ‘flexible,’ not ‘formulaic,’ will seek to ‘arrive at a just and equitable apportionment of an interstate stream’ by ‘consider[ing] ‘all relevant factors.’” Id. at 11–14 (citations omitted). back
Id. at 15. back
Id. at 37 (quoting Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1026 (1983)); Virginia v. West Virginia, 220 U.S. 1, 27 (1911). back
See 2021 Florida, slip op. at 1. back
Id. at 5. back
See id. at 5–10. back
South Dakota v. North Carolina, 192 U.S. 286 (1904). back
Virginia v. West Virginia, 220 U.S. 1 (1911). back
Arkansas v. Texas, 346 U.S. 368 (1953). back
Kentucky v. Indiana, 281 U.S. 163 (1930). back
Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601 (1978), the Court denied a state leave to file an original action against another state to determine the contested domicile of a decedent for death tax purposes, with several Justices of the view that Texas v. Florida had either been wrongly decided or was questionable. But, after determining that an interpleader action by the administrator of the estate for a determination of domicile was barred by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted filing of the original action. California v. Texas, 457 U.S. 164 (1982). back
Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over dissent, relied on this case in permitting a suit contesting a tax imposed on natural gas, the incidence of which fell on the suing state’s consuming citizens. And, in Wyoming v. Oklahoma, 502 U.S. 437 (1992), the Court permitted a state to sue another to contest a law requiring that all in-state utilities burn a mixture containing at least 10% in-state coal, the plaintiff state having previously supplied 100% of the coal to those utilities and thus suffering a loss of coal- severance tax revenues. back
379 U.S. 674 (1965). See also Pennsylvania v. New York, 407 U.S. 206 (1972). back
Id. at 683. back
37 U.S. (12 Pet.) 657 (1838). back
19 U.S. (6 Wheat.) 264 (1821). back
Id. at 378. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New York, 407 U.S. 206 (1972). back