Klein on the Dormant Commerce Clause and Water Export

Christine A. Klein (Florida) has posted The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011).  The abstract:

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of its application for a permit to acquire water from Arizona.

This article examines the Dormant Commerce Clause as it applies to water export, identifying factors that have influenced the courts’ legal opinions. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause – whether water is an article of commerce – into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty five years, this paper argues that courts should no longer rely upon Sporhase’s water-as-article-of-commerce mantra. Instead, this article suggests a new analytical paradigm, the “water continuum.” More broadly, this article examines evidence from the Court’s Dormant Commerce Clause jurisprudence involving other natural resources – specifically, landfill space – that suggests the Court may be poised to make a radical shift, abandoning the Dormant Commerce Clause entirely.

Matt Festa