Sporhase v. Nebraska
Citation: 12 ELR 20749
No. No. 81-613, 458 U.S. 941/(U.S., 07/02/1982) Rev'd in part
Reversing the Nebraska Supreme Court, 12 ELR 20246, the United States Supreme Court holds that a Nebraska statute, which conditions approval of interstate groundwater transport permits on the destination state's grant of reciprocal rights to withdraw and transport groundwater for use in Nebraska, violates the Commerce Clause. The Nebraska Supreme Court had ruled that the statute does not violate the Commerce Clause since, under Nebraska law, groundwater is not an article of commerce; it is a unique commodity owned by the public. The U.S. Supreme Court disagrees, ruling that groundwater is an article of interstate commerce. Because of the multistate character of the aquifer in question, there is a significant federal interest in conservation and preservation of scarce water resources. The Court adds that the statute's reciprocity provision violates the Commerce Clause because it imposes an impermissible burden on interstate commerce. While the statute's purpose — to preserve and conserve groundwater — is reasonable and advanced by three of the statute's conditions for the withdrawal of water for interstate transfer, the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining states. The Court concludes that the statute does not meet the strict scrutiny test for facially discriminatory legislation. The state failed to demonstrate that the reciprocity requirement advances the state's legitimate conservation and preservation purpose. The Court also rules that Congress has not granted the states permission to engage in groundwater regulation that would otherwise be impermissible.
In his dissent, Justice Rehnquist would find that under Nebraska law, groundwater cannot be considered an article of commerce and, therefore, would rule that the Nebraska statute neither discriminates against nor burdens interstate commerce.
Counsel are listed at 12 ELR 20246.