Why Profs Think Colorado Should Pay Nebraska, Oklahoma for Pot Problems

A photo from the Oklahoma State Patrol Facebook page. Additional images and more below.
A photo from the Oklahoma State Patrol Facebook page. Additional images and more below.
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In December, as we've reported, Nebraska and Oklahoma filed a lawsuit against Colorado in the U.S. Supreme Court over the state's marijuana laws. Among the claims: Colorado's marijuana experiment undermines pot bans in neighboring states, "draining their treasuries and placing stress on their criminal justice system."

Colorado's attorney general has reportedly requested, and received, an extension to the deadline for responding to these assertions: The state now has until March 27 to counter the arguments contained in the document, which is included below. Meanwhile, two law professors have published a paper, also shared here, in which they maintain that the suing states deserve to be paid for the headaches caused by Colorado weed.

"Fear and Loathing in Colorado: Invoking the Supreme Court's State-Controversy Jurisdiction to Challenge the Marijuana-Legalization Experiment" was penned by Chad DeVeaux and Anne Mostad-Jensen, professors at the Concordia University School of Law.

In highlighting the paper, Eugene Volokh, a UCLA law-school prof writing for the Washington Post, notes his own doubts about the conclusions reached by DeVeaux and Mostad-Jensen.

Jon Bruning is the Nebraska Attorney General who originally signed on to the lawsuit.
Jon Bruning is the Nebraska Attorney General who originally signed on to the lawsuit.
YouTube file photo

In Volokh's view, "such matters should be resolved through the legislative and executive branches of the federal government, not the judicial branch, and I don’t think that Congress’s earlier judgment categorically prohibiting commerce in marijuana is sufficient to justify this particular remedy." But he credits the authors for coming up with a new slant on the case.

As the writers note, the Nebraska-Oklahoma suit asks the U.S. Supreme Court to strike down Amendment 64, the 2012 measure that legalized limited recreational marijuana sales in the state — but they don't think that's the best way to address the situation. Instead of voiding the law, they believe Colorado should compensate the states the old-fashioned way — with cold, hard cash.

The paper notes that most cross-border complaints that have reached the Supreme Court deal with pollution — and they see a correlation between toxic sludge and pot. Here's an excerpt:

Just as contaminants released into rivers flow across state lines, marijuana introduced into the stream of commerce from Colorado dispensaries will predictably flow into neighboring States through the simple expediency of placing lawfully purchased cannabis in vehicles which are then driven across state lines. And just as interstate watercourses are guided by the laws of gravity and hydrology, the movement of Colorado pot is driven by greed. Marijuana is the most lucrative cash crop in the United States. The resulting “high demand in the interstate market will draw” Colorado weed “into that market” thereby having a “substantial effect on the supply and demand” of the drug in the black markets of neighboring States.

Oklahoma Attorney General Scott Pruitt.
Oklahoma Attorney General Scott Pruitt.
YouTube file photo

This "flow" creates damages for Oklahoma and Nebraska just as would water pollution, DeVeaux and Mostad-Jensen believe. But they contend that "rather than issuing injunctive relief — the traditional remedy in original nuisance actions — we posit that the Court should award damages to prevailing sister States compensating them for the injuries inflicted by the incursion of Colorado marijuana into their territory."

Such a ruling will help to determine if Colorado has taken the proper course when it comes to marijuana, the authors feel. Another excerpt reads:

If Colorado’s venture generates sufficient revenue to compensate her neighbors for the damage caused and remains profitable her enterprise will have proven efficient and she will prevail by “shar[ing] … the profits associated with the nuisance” with her neighbors “in exchange for allowing the nuisance to continue.” Conversely, if internalizing the extraterritorial damage her program causes results in a net loss, her neighbors’ interests will ultimately prevail. In either case, the viability of Colorado’s program will turn on whether the profits it generates exceed the harm it creates — exactly the metric that would govern in a transaction-cost-free environment.

Here's "Fear and Loathing in Colorado," followed by the original lawsuit.

Send your story tips to the author, Michael Roberts.

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