An Improved 21st Century Judicial System with Environmental Science Expertise is Needed for Resolving Interstate Water Conflicts

As stresses on groundwater resources increase due to growing population and climate change, water litigation, such as the recently decided Mississippi (MS) vs Tennessee (TN) lawsuit, will become more common. In the United States, lawsuits between states can be heard only by the Supreme Court of the United States (SCOTUS). These lawsuits are expensive and lengthy, often requiring highly specialized technical expertise. In the MS vs TN case, the Court unanimously held that an interstate aquifer is subject to equitable apportionment. Although this appears to be a sound resolution, a careful examination of the SCOTUS hearing transcript revealed that the Justices had several egregious misconceptions about the groundwater system. These misconceptions arose in part due to the failure of technical experts to communicate groundwater concepts in understandable terms and in part due to the Justices’ lack of expertise in groundwater science. To address these issues, we first explore methods for improving scientific communication in courtrooms. Second, we propose ideas for reforming the legal system and provide compelling arguments for using the lower courts to hear such cases. We also explore the possibility of creating specialized federal water courts to resolve water disputes.