Christine Klein on CPRBlog {Bio}

Missouri River Floodplain Owners Seeking a “Double-Take” from the Taxpayers

Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution.  Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves.  They’re likely to be disappointed.

Lawsuits seeking recovery of flood damages from the federal government almost always fail.  First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

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The Lesson of Tarrant Regional Water District v. Herrmann: Water Conservation, not Water Commerce

It’s been more than 30 years since the U.S. Supreme Court declared that water is an article of commerce and that Nebraska’s attempts to prevent the export of “its” groundwater to neighboring Colorado violated the dormant Commerce Clause.[1] The high Court did not return directly to the issue until last week’s ruling in Tarrant Regional Water District v. Herrmann.[2] [3] This time, a unanimous Court ruled againt the would-be exporter--Texas--and its effort to diver a portion of the Kiamichi River from a point within neighboring Oklahoma.

The Court struck a blow to one of Texas’ largest water districts, which supplies the exploding populations of the state’s north central region including Fort Worth, Arlington, and Mansfield.[4] The ruling thwarted Tarrant’s attempt to obtain a permit from the Oklahoma Water Resources Board to divert 310,000 acre-feet from the relatively clean Kiamichi River upstreamfrom where it flows into the salty Red River. This would have been enough water to supply the annual water needs of some 300,000 Texas families.[5]



[1] Sporhase v. Nebraska, 458 U.S. 941 (1982).


[3] Chesterfield Smith Professor of Law and Director, LL.M. Program in Environmental & Land Use Law, University of Florida Levin College of Law. Klein was one of six amici who filed a brief for Professors of Law and Political Science as Amici Curiae Supporting Respondents Herrmann et. al,

[4]Metropolitan Fort Worth experienced a population growth over more than 23% from 2000 to 2010, one of the largest increases in the United States. Tarrant, slip opinion, at *7.

[5] (explaining that 1 AF can supply the annual needs of a family of four).



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Reversing the Environmental Deficit

As the recession grinds on, financial news continues to grab front-page headlines. The national deficit is a central flashpoint for controversy, triggering debate on the appropriate balance between spending today and increasing our children’s growing mountain of debt. In the midst of this battle, it is easy to overlook another looming problem: the growth of the environmental deficit. Overall, we are spending down the planet’s “natural capital” at unsustainable rates. As the nation’s most thoughtful minds address our economic woes, their wisdom provides three important lessons for environmental sustainability. The moment is particularly ripe for such analysis as the international community struggles with the overwhelming issue of climate change, certainly a key to achieving any sort of sustainable environmental future.

Re-regulation to promote responsibility: Even as taxpayers bailed out financial institutions deemed too big to fail, executives received huge bonuses. Growing outrage has prompted a call for increased governmental oversight, reversing the nearly three-decade deregulatory agenda initiated by Ronald Reagan, who mocked durable federal agencies and programs as “the nearest thing to eternal life we’ll ever see on this earth.” Even Alan Greenspan, former chairman of the Federal Reserve and a staunch supporter of deregulation, admitted in 2008 that his “whole intellectual edifice” had collapsed and that he was in “shocked disbelief” to discover that his faith in the unregulated free market had been woefully misplaced.

In the environmental realm, this deregulatory frenzy most recently manifested itself through a spate of “midnight regulations” promulgated by the Bush administration during its final months. These agency rules—largely invisible to the general public—dismantled numerous important environmental safeguards. For example, in the name of “streamlining” the permitting process for coal mines, one new rule would have allowed over 1,000 miles of Appalachian streams to be filled with the debris from so-called “mountaintop removal” mining, as entire peaks are blasted off to expose underlying coal deposits. A second late-term rule, ostensibly enacted to “clarify” existing requirements and to produce a process that is “less time-consuming and a more effective use of our resources,” would have allowed federal agencies to conduct activities that may harm threatened or endangered species without even consulting federal wildlife experts. In all, the Bush administration rushed through dozens of such regulations.

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Coveting Their Neighbor's Water: the Importance of Hood v. City of Memphis

The interstate water wars have gone underground. For more than a century, the U.S. Supreme Court has been the arbiter of last resort to settle fights between states over the right to use surface streams that cross state lines. But now, the high Court may be asked to settle a long-standing feud between Mississippi and Tennessee over a vast underground formation—the Memphis Sand aquifer, which underlies about 10,000 square miles of Arkansas, Tennessee, Mississippi, and Kentucky.

The stakes are high, and the rhetoric inflammatory. Mississippi sued the City of Memphis, seeking hundreds of millions of dollars in damages and claiming that Memphis is stealing Mississippi’s “share” of the aquifer. The problem is that no one has ever determined the two states’ respective “shares” of the aquifer, and that Tennessee (and not merely Memphis) must be part of any lawsuit that makes such a determination. In June, the Fifth Circuit Court of Appeals affirmed the dismissal of Mississippi’s claims in Hood v. City of Memphis, holding that Tennessee is an “indispensable party” to the action. Further, the court said, Mississippi had filed its action in the wrong court because only the Supreme Court has the authority to decide such an interstate dispute.

Mississippi will likely try again, this time in the Supreme Court. That would be a case to watch for at least two reasons.

First, it would present the Supreme Court with its first opportunity to apply the doctrine of “equitable apportionment”—the fair allocation of water among neighboring states—to groundwater. Although the Court has divided up three surface watercourses—the Laramie River (1922), the Delaware River (1931), and the North Platte River (1945)—it has yet to venture underground. According to the Fifth Circuit, the Supreme Court should not treat groundwater any differently than surface water in terms of equitable apportionment because the “Aquifer flows, if slowly, under several states, and it is indistinguishable from a lake bordered by multiple states or from a river bordering several states depending upon it for water.”

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