Climate Change and Compact Breaches: How The Supreme Court Missed an Opportunity to Incentivize Future Interstate-Water-Compact Compliance in Kansas v. Nebraska

Recklessly gambling with Kansas’s water rights to the Republican River, Nebraska used 17 percent more water than it was allocated by the interstate Republican River Compact during a drought in 2005–06. Kansas sued Nebraska for this breach of compact in the Supreme Court. While the Court ultimately found that Nebraska breached the Republican River Compact, the remedy was only damages for Kansas’s loss and partial disgorgement of Nebraska’s profits. By failing to require complete disgorgement of profits, the Court arguably failed to disincentivize future breaches of other interstate water compacts. This lack of disincentive is especially concerning given climate change predictions in the arid western United States. These predictions forecast higher temperatures and longer dry spells for this region. These impacts will make it increasingly difficult for states to comply with interstate water compacts unless the compacts themselves are adaptable to the impacts or there is a heavy penalty for noncompliance. As the Court has effectively taken the heavy penalty off the table through its ruling in Kansas v. Nebraska, it is important to understand the specific climate change impacts threatening the river basins and how adaptable the interstate water compacts are to these impacts. This Note discusses the Court’s decision in Kansas v. Nebraska, explains why a breach of compact is not desirable even when the water might have a higher market value in the states that breach, and then examines both the Republican River Compact and basin and the Rio Grande Compact and basin