PUB00160

• Year: 2005
• Title: A Legal Analysis of Sporhase V Nebraska
• CWCB Section: Administration
• Author: Charles T DuMars
• Description: A Legal Analysis of Sporhase V Nebraska
• Publications - Doc Type: Legal Analysis

Nebraska's second reason for why water is not an article of commerce was hat it
is necessary for life. Id. The Court, however, did not agree. Most water g es to .
agricultural markets, which are "worldwide" and "provide the archtypical exam Ie of
commerce among the several States for which the Framers of our Constitution int nded
to authorize federal regulation." Id. at 953. The Court also pointed to the extent f the
Ogallala aquifer, which underlies not only the property in question, but a variety of tates.
ld.

According to the Sporhase Court, then, groundwater is an article of com
Even so, this conclusion "raises, but does not answer, the question whether the Ne
statute is unconstitutional. For the existence of unexercised federal regulatory ower
does not foreclose state regulation of its water resources, of the uses of water with' n the
State, or indeed, of interstate commerce in water." Id. at 954. To decide whether 0 not a
state statute limiting interstate commerce is unconstitutional, the Court turned 0 the
following passage from Pike v. Bruce Church, Inc., 397 U.S. 137 (1970):

Where the statute regulates evenhandedly to effectuate a legitimate local
public interest, and its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits. If a legitimate local
purpose is found, then the question becomes one of degree. And the
extent of the burden that will be tolerated will of course depend on the
nature of the local interest involved, and on whether it could be promoted
as well with a lesser impact on interstate activities.

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Pike v. Bruce Church, Inc., 387 U.S., at 142 (citation omitted) (quoted in Sporhas , 458
U.S. at 954. A state law limiting interstate trade is, therefore, valid ifit treats out-o -state
market participants like their in-state equivalents, furthers a legitimate local lUbliC
interest, and is narrowly tailored.4 Applying these considerations, the Sporhase Court
found that the first three conditions of the Nebraska law in question were valid. Ne raska
could require that exports of its groundwater be "reasonable, not contrary to the
conservation and use of groundwater, and . . . not otherwise detrimental to the ublic
welfare." Neb. Rev. Stat. 46-613.01 (I 978). The Court then offered four reason why,
"in times of severe shortage," it was "reluctant to condemn as unreasonable, me sures
taken by a State to conserve and preserve for its own citizens this vital resource in times
of severe shortage." Sporhase, 458 at 956 (emphasis added). The first reason was t at "a
State's power to regulate the use of water in times and places of shortage for the p rpose
of protecting the health of its citizens - and not simply the health of its economy is at
the core of its police power." Id. (emphasis added). Second, equitable apportio ent
decrees and interstate compacts have "recognized the relevance of state boundaries in the

4 See the following, cognate passage from Hughes:
we must inquire (1) whether the challenged statute regulates evenhandedly with only
"incidental" effects on interstate commerce, or discriminates against interstate commerce
either on its face or in practical effect; (2) whether the statute serves a legitimate local
purpose; and, ifso, (3) whether alternative means could promote this local purpose as
well without discriminating against interstate commerce.
Hughes, 44] U.S. at 336.

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