MARK BRODIE: Arizona says it'll join the lawsuit Nevada has filed against the federal government, challenging new rules on allocating Colorado River water. Nevada filed its lawsuit in August.
Under the new federal rules, the Lower Basin states of Arizona, Nevada and California would take cuts to their allocations through 2028 — with bigger cuts potentially coming beyond that. The Upper Basin states of Colorado, New Mexico, Wyoming and Utah would not be required to take any cuts.
With me now to talk about this is Rhett Larson, the Richard Morrison Professor of Law at ASU's Sandra Day O'Connor College of Law. Rhett, good morning. Thanks for being here.
RHETT LARSON: Good morning. Happy to be here.
MARK BRODIE: Any surprise that Arizona has joined this lawsuit from Nevada?
RHETT LARSON: I don't know that I'm surprised that Arizona joined the lawsuit. I'm a little surprised at the timing. I had expected that other potential intervenors might have waited until the federal government had responded to Nevada's original claim before they had intervened. So I'm not surprised that Arizona got involved. I'm a little surprised they got involved at this stage.
MARK BRODIE: And in terms of what Arizona is asking for, like what does the state want?
RHETT LARSON: Well, Arizona's asking for a lot of the same things that Nevada's asking for, saying that the federal government violated administrative procedural requirements and environmental analysis requirements under federal law, and that they violated the law that governs the Colorado River.
Arizona's request is slightly different than Nevada's. Nevada's asking that the judge vacate the next two-year plan as well as the longer 10-year framework. Whereas Arizona's saying, that longer 10-year framework, we're asking you to vacate it, but this next two-year plan, we want to retain because that gives us a little more predictability, at least in the short term. And that's a plan that Arizona, California, Nevada have been working to negotiate. And so they still want to see that plan get across the finish line.
MARK BRODIE: Well, how does a court consider that then if you have two people on one lawsuit who are not necessarily wanting the same result?
RHETT LARSON: I mean, it's pretty common for a lawsuit to have someone brings a claim and then someone else decides, "Hey, I'm interested in this lawsuit." So they intervene and say, "I kind of agree with this person over here, but not completely." ... So there's precedent for this kind of intervention.
But it is definitely difficult because both Arizona and Nevada are saying the analyses that the federal government has relied upon in making these decisions are fundamentally flawed. But Arizona's saying, despite that fundamental flaw, the agreement that we have reached with Nevada and California still needs to move forward.
MARK BRODIE: OK. So where does this leave California? If two of the three Lower Basin states are suing the federal government, one is not, does that put potentially the deal between the three of them at risk?
RHETT LARSON: I hope not. Now ... come people may wonder, why did Nevada, you know, jump out of the gate so fast? And part of the reason is that Nevada just has fewer disparate interests to align. The Colorado River allocations into Nevada really impact the Las Vegas metro area. Whereas Colorado River water to Arizona and California affect a vast variety of different people — from tribes, to farms, to cities, to industry.
And so for Arizona or California to get involved in litigation requires them to herd a much more diverse group of people into the same direction. So California's going to face the same challenges as Arizona as far as getting everyone on the same page if they want to intervene in this litigation. I don't anticipate that this will get in the way of the Lower Basin deal, the fact that this litigation exists, but it does add another variable, and this is already a complex negotiation.
MARK BRODIE: So what are the possible outcomes from this, assuming that a judge agrees with the states? If a judge disagrees, I imagine everything just kind of stays the way it is. But if a judge sides with Nevada and Arizona, what happens?
RHETT LARSON: Well, if the — if the judge sides with Arizona and Nevada, what'll end up happening is the federal government will probably appeal, and then we'll have a question as to whether or not everything gets put on hold.
And then if everything gets put on hold during the appeal, then we end up with a question with, well ... what governs us when we're on hold? Which is exactly why Arizona doesn't want to see this next two-year plan vacated by the court, because we want to have at least some certainty for the next two years. Otherwise, we're just in a — litigation compounds the uncertainty that we have. So if Arizona and Nevada win, the federal government will probably appeal, and then we're into more uncertainty.
The ideal outcome would be that this lawsuit is creating an off-ramp for the parties to start having a conversation about how we might reach another sort of more consensus-based approach, negotiated solution. If we miss that off-ramp, there's a chance that this litigation starts picking up steam and builds its own momentum, and then we're really off to the races in terms of legal costs.
MARK BRODIE: How much optimism would you have that the states — who have not over the last number of years been able to come up with an agreement with the federal government and amongst themselves — would suddenly be able to do that?
RHETT LARSON: I don't have very much optimism for that at all. I think if it were likely, then we would have seen more movement in that direction by this time. Litigation has a place. There's a time for people to sue each other, and that time is when you're struggling to talk to each other, and when at least one party isn't internalizing the costs of its own intransigence. And we've reached that point.
We're struggling to talk to each other, and the Upper Basin doesn't really have much incentive to sell because they're not facing any cuts. Litigation at least creates some risks for the federal government, some risks for the Upper Basin, which might push people towards negotiation. But it's as likely or maybe even more likely that litigation just gets bogged down, and we end up spending millions of dollars on lawyers instead of on water.
MARK BRODIE: Well, and there's also the risk, right, that states could start suing each other, right? Like Lower Basin states could start suing Upper Basin states as opposed to states suing the Feds.
RHETT LARSON: That's exactly right. So this — this litigation is just Arizona and Nevada for the time being — there will probably be other intervenors — but it's really just these states suing the federal government. There's a separate legal issue out there, which is, will the Lower Basin sue the Upper Basin for failing to deliver the agreed-upon amount of water over the last 10 years? And that possibility is still looming.
MARK BRODIE: And presumably it could be pretty messy as well, right?
RHETT LARSON: Oh, it would be extremely messy. It'd be very complicated, in part because when states sue each other, the U.S. Supreme Court has original jurisdiction, which means that lawsuit goes straight to the United States Supreme Court. There's no appeals process. And so all of the uncertainties and complications of litigation are then compounded by the sort of political ramifications of this being the U.S. Supreme Court.
MARK BRODIE: Right. Interesting. All right, that is Rhett Larson with ASU's Sandra Day O'Connor College of Law. Rhett, thanks as always.
RHETT LARSON: My pleasure. Thank you.
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