For the second time in less than a week, Texas has lost an “original jurisdiction” case before the U.S. Supreme Court, giving new gravitas to the nickname Lone Star State.
Last Friday, it was Texas v. Pennsylvania, the controversial request from Texas to undo the election process of four other states. On Monday, it was Texas v. New Mexico, a far less watched-for dispute over water rights stemming from the 1949 Pecos River Compact. In both cases, the Supreme Court rejected what Texas wanted it to do.
In both cases, the Supreme Court reached its decisions without input from lower courts, because under the Constitution certain lawsuits between states – so-called “original jurisdiction” cases – go first and last to the Supreme Court.
Justice Brett Kavanaugh, who authored the decision in the Pecos River case, reviewed the assertions advanced by Texas and said, “Texas offers various arguments, but none is persuasive.”
Six other justices joined Kavanaugh, Justice Samuel Alito Jr. dissented in part, and Justice Amy Coney Barrett did not participate because the case was argued before she joined the court on October 27.
Texas solicitor general Kyle Hawkins, who argued the river case in October, did not respond to a request for comment. Hawkins did not participate in the presidential election case, leaving his name off the state’s brief.
In an emailed statement, however, the Texas Attorney General’s office said, “Although we are disappointed with the result from the Court, we look forward to continuing our collaborative work with New Mexico in administering the Pecos River Compact going forward.”
Texas and New Mexico have been at odds for decades about usage of Pecos River water. But the case before the high court began after the tropical storm Odile filled the river and reservoirs to the brim in 2014. Texas asked New Mexico to hold back some of the water until the Red Bluff reservoir could handle the flow. New Mexico did so, but after several months, some of the water evaporated, becoming the somewhat metaphysical question: should Texas have to credit New Mexico for water that is no longer there and did not make it across the border?
The “river master” who administers allocation of water under the compact sided with New Mexico, and so did the Supreme Court.
“The water was stored in New Mexico at the request of Texas, so New Mexico’s delivery obligation must be reduced by the amount of water that evaporated during its storage,” Kavanaugh wrote. “For that reason, the River Master awarded New Mexico delivery credit for the evaporated water. We agree with the River Master’s determination, and we deny Texas’s motion for review.”
Even though Kavanaugh rejected the views of Texas, he did wax poetic briefly about the Texas stretch of the river. “The River flows south into Texas, winding its way for hundreds of miles past the oil fields, farms, ranches, and high school football stadiums of west Texas. About 900 miles later, the Pecos pours into the Rio Grande River a few miles west of the city of Del Rio on the Texas-Mexico border. Because of the dry landscape, farmers and ranchers in New Mexico and west Texas have long depended on Pecos River water.”