Bloomberg Law
June 21, 2024, 2:13 PM UTCUpdated: June 21, 2024, 5:02 PM UTC

Supreme Court Sides With US and Blocks Rio Grande Water Deal (2)

Bobby Magill
Bobby Magill

The Supreme Court on Friday upheld the US government’s challenge to a consent decree among Texas, New Mexico, and Colorado, forcing those states to rethink how they’ll divvy up water in the Rio Grande River Basin to account for federal interests.

The ruling also gives the federal government greater control over agreements struck between or among states, including interstate water compacts.

“The United States just picked up a lot of power,” said Robin Kundis Craig, an environmental law professor at the University of Southern California Gould School of Law.

In a 5-4 opinion written by Justice Ketanji Brown Jackson, the high court ruled that the US has valid claims in the Rio Grande Compact and set aside the consent decree. Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanuagh joined in the majority opinion.

The original jurisdiction case had been pending at the court for a decade. Texas originally alleged that New Mexico was taking too much water under the Rio Grande Compact, which apportions water in the river between its headwaters in Colorado’s Rocky Mountains and Fort Quitman, Texas, about 80 miles southeast of El Paso. The states later reached a settlement.

A special master recommended in a report that the justices approve the settlement among Texas, New Mexico, and Colorado, but the federal government objected because it didn’t consent to the settlement.

Friday’s ruling upholds the federal government’s objection to the consent decree because the justices said it would have disposed of the US’s claims to the Rio Grande Compact. The justices also affirmed that the federal government has valid compact claims.

“The United States, like Texas, pleaded that New Mexico was pumping more groundwater than the Compact contemplates, and the United States still seeks to pursue that same claim,” Jackson wrote for the majority, adding that the US has distinct federal interests in the compact.

Water Federalism

The case is a dispute about water federalism, and the majority supported a vigorous assertion of federal authority within the Rio Grande Compact, said Burke Griggs, a law professor at Washburn University School of Law in Topeka, Kan.

“The states here made a deal, and the court vetoes the deal at the request of the United States,” he said.

Colorado Attorney General Phil Weiser said in a statement that he disagrees with the court’s ruling, but “it cannot change the fact that three states have already resolved their dispute under the Compact and are interested in ending this litigation.”

“I remain committed to working with Texas and New Mexico to develop a path forward that ends this dispute as expeditiously as possible,” Weiser said.

The offices of the New Mexico and Texas attorneys general didn’t immediately respond to requests for comment Friday.

The ruling has broad legal implications for water compacts and other agreements among states, Craig said.

The ruling allows the US to be included in any agreement among states, especially water compacts, which are old and need to be amended because they don’t account for population growth and climate change, she said.

“The US can be a holdout on all of these compacts if it doesn’t like the way the negotiations are going, or if it has interests it feels are not being addressed,” Craig said. “The United States just picked up a lot of control for its position in interstate compacts.”

US Concerns

The consent decree would have integrated into the compact the effects of groundwater pumping and climate change on reduced flows in the Rio Grande. It would have required a more accurate accounting of water delivery and compact administration among the states and resolve ambiguities in Texas’ water allocation from the river.

The US had a variety of concerns about the decree, including a 1938 baseline for New Mexico’s interference with the Rio Grande irrigation project and that groundwater pumping in the region is occurring at unsustainable levels. New Mexico argued that the US can resolve those concerns in lower courts.

“The United States alleges that New Mexico’s groundwater pumping breaches the State’s Compact duty not to interfere with the Project, and it seeks an injunction against New Mexico to prohibit that interference,” Jackson wrote. “Were the consent decree adopted, the United States would be precluded from claiming what it argues now—that New Mexico is in violation of the Compact when it permits groundwater pumping at those increased levels.”

Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett dissented.

In his dissent, Gorsuch objected to the original jurisdiction proceedings and said the special master’s report should be upheld.

The ruling “defies 100 years of this Court’s water law jurisprudence. And it represents a serious assault on the power of States to govern, as they always have, the water rights of users in their jurisdictions,” Gorsuch wrote.

“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,” Gorsuch wrote.

He added that the special master’s views were wise and should have been heeded.

Griggs said the dissent largely agreed with and incorporated the special master’s explanation of the recommendation to approve the decree.

The case is Texas v. New Mexico, U.S., No. 22O141, Decision 6/21/24.

To contact the reporter on this story: Bobby Magill at

To contact the editors responsible for this story: Zachary Sherwood at; Maya Earls at

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