A Recipe for Breach: Kansas v. Nebraska's Unclear Equity Standards Will Breed Interstate Water Litigation

March 01, 2017

Interstate compacts govern more than ninety-five percent of the available freshwater in the United States. The Supreme Court has original jurisidiction over sister-state suits regarding the enforcement and interpretation of these agreements. In the past, the Court has used principles of both contract law and statutory interpretation to resolve compact disputes. In Kansas v. Nebraska, the Supreme Court ordered the State of Nebraska to pay partial disgorgement damages for breaching its compact with the State of Kansas in one such dispute, but declined to grant an injunction against future violations. The Court also held that the states had to revise an ancillary technical agreement specifying how water usage is calculated under the compact to ensure accuracy. While each of these holdings is supported by precedent and public policy, the way the Court reached its decision on the technical agreement and denial of the injunction is problematic.

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