Kansas V. Colorado: State Sovereignty and the Equitable Allocation of Water

Abstract

The United States Supreme Court has heard 137 cases under its Original Jurisdiction. Kansas v. Colorado (Original No. 105), like many of its sister original jurisdiction disputes, dealt with an interstate water dispute. Indeed, the case involves a problem that has bedevilled the American west for over one hundred years: the apportionment of river water, mostly for irrigation purposes, in a desert to semi-desert environment.

In adjudicating inter-state water disputes, the Supreme Court’s first legal duty and challenge – like that of all international courts and tribunals – is to balance the competing interests of state sovereignty. Kansas v. Colorado demonstrates these competing interests in the guise of water allocation and the rough and tumble wrangling between the litigants over water. The dispute also demonstrates the lengths to which states situated in the arid west will go for a greater share of the existing pool of water. For example, Kansas sued Colorado numerous times without success, claiming that the latter was depriving it of its ‘rightful’ share of river water. Another excellent example of this ‘hunger’ for water and the jealousy state sovereignty engenders is demonstrated by another of the Court’s disputes, Arizona v. California, where California fought a decades-long rancorous dispute with Arizona, over 548 ac-ft (675 947 m3) of water/day, or 200 000 acre-feet (246 696 000 m3) of water annually. But, this appetite for the allocation of water was and is not limited to the United States. It is also a current phenomenon in India’s Sutlej and Krishna Rivers, Bangladesh, and South Africa.

With regards to the issue of state sovereignty, it has been a constant in the United States’ Supreme Court’s transboundary dispute portfolio for almost one hundred years. Indeed, in 1931, Justice Oliver Wendell Holmes observed, in New Jersey v. New York that the competing interests of state sovereignty must be balanced where an upper riparian has the physical power to cut off all the water within its jurisdiction, to the lower riparian. Moreover, he also observed that: the exercise of such a power to the destruction of the interest of lower [riparian] 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 be.

The paramount importance of the sovereignty issue means that it casts a long shadow over the Court’s adjudication. Consequently, the artifact of federalism is always in the background of the Court’s adjudication of intra-state water disputes. The focus of my presentation will be on the federalism issue.

Keywords: Water Allocation, Kansas v. Colorado, State Sovereignty, Equitable Allocation of Water, U.S. Supreme Court

JEL Classification: I18, I28, I31, K00, K4, K30, K32, K33, Q00, Q01, Q25, R11