A country with its internal state boundaries overlying groundwater aquifers may face situations similar to that of Nebraska in the Sporhase case. The Supreme Court's decision resulted in a limitation on state power to prevent the movement of groundwater to points outside its state boundaries. From a policy standpoint, this decision seems to strike a suitable balance between the needs of the state in protecting the health and welfare of its citizens in times of crises and the needs of a free flow of commerce. Other countries may have to make this policy decision based on other principles and considerations, but it would seem that the Sporhase balance might be universally relevant, at least in considering these two factors.
The proposal of the MWP to make large intrastate diversions of Texas groundwater presents different legal and policy issues than those of interstate diversions. Even intrastate water diversions cause public concern about the disruption of the economies of the places of origin as well as environmental, human displacement and other costs. If a state government has power over its water resources, it can make necessary policy judgements about the costs and benefits to the exporting and importing areas in the state, and can take into account relevant externalities. If a government employs the Rule of Capture, however, it has tacitly left such decisions in the hands of private enterprise.
Was this article helpful?