For all of the benefits of the doctrine of equitable allocation, it does have
its critics. One of the major ones was the renowned water scholar Charles
J. Meyers. In his classic study of the Colorado River.(1) Meyers condemned
both the equitable apportionment method and the Supreme Court’s principle as unwieldy and inefficient. In fact, he echoes Justice Owen Roberts’ frustration.
Moreover, Meyers reasoned that either a compact or a congressional
mandated apportionment are better than an equitable apportionment since
Supreme Court’s adjudications are (1) time consuming; and (2) the “Court
lacks the ability to deal with the technical information that is a predicate to a good decision, and federalism considerations prevent the Court from adopting the right standard of apportionment.”(2) This is akin to a treaty being executed by two independent states, as opposed to allowing courts or tribunals to implement an equitable apportionment.
Despite these criticisms and the U.S. Supreme Court’s Kansas v. Colorado’s 1943 judgment wherein it declared the following regarding its original jurisdiction in transboundary water disputes:
“[these] controversies may appropriately be composed by negotiation and
agreement, pursuant to the compact clause [as the ideal way to resolve these conflicts].We say of this case, as the court has said of interstate differences of like nature, that such mutual accommodation and agreement should, if possible, be the medium of settlement, instead of invocation of our adjudicatory power.”(3)
(1) Charles Meyers, The Colorado River, 19 Stanford Law Review 1 (1967).
(2) Ibid. at 48–50. Meyers, however, did not account for the inaction of Congress and those states that will not or are unable to enter into compacts.
Colorado v. Kansas, 323 US at 392 (1943).