Climate change is making water a scarcer resource. Warming temperatures, urban growth, and agricultural demand are pushing water resources to their limits. Increasingly, rival states compete over water allocation from limited sources throughout the country, such as the Rio Grande. These fights often extend to the courtroom. Since drafting the Rio Grande Compact in 1939, Texas, New Mexico, and Colorado have been engaged in a series of legal battles over the allocation of water in the Rio Grande. In 2013, Texas filed a suit in the U.S. Supreme Court, which has original jurisdiction in interstate disputes, to review the allocation of
water in the Rio Grande. In 2018, the Court granted the United States permission to intervene to protect its distinct federal interest, namely its water treaty with Mexico. In Texas v. New Mexico, the Supreme Court held that the United States may
intervene in interstate disputes because the following four specific conditions are met. First, the United States may intervene when the dispute “inextricably” involves the United States’ contract obligations to states. Second, the United States must have an integral role with the contract at issue. Third, when intervening, the United States must honor international treaty obligations.
Fourth, the United States must not seek to initiate or expand issues in litigation. While the federal government lacks blanket authority to intervene in cases involving interstate compacts, the Court granted an intervention because of the distinct federal interests in this case. The holding in Texas v. New Mexico raises important questions regarding the future of federal government intervention. May the United States intervene to expand existing interstate litigation? May the United States initiate disputes
between states? With climate change increasing the number of interstate water disputes, it is likely that the federal government’s obligations to states and Mexico will become more complicated, leading to additional requests to intervene and expand litigation between states in the future. The narrow holding in Texas v. New Mexico raises these important questions about the United States’ opportunities for litigation, which will likely become more common in the future. The answers to these questions may challenge the United States’ authority to enforce its obligations under the water treaty with Mexico and the Downstream Contracts. In a narrowly written opinion, Texas v. New Mexico correctly held that the United States may intervene in interstate water disputes for distinct federal interests. Nevertheless, Texas v. New Mexico failed to set guiding precedent for many contentious legal questions that will likely become more urgent due to climate change.