Welcome
Environment & Energy

Supreme Court Weighs Blame in Georgia, Florida Water War (1)

Feb. 22, 2021, 4:32 PM; Updated: Feb. 22, 2021, 6:36 PM

The U.S. Supreme Court appears hesitant to side with Florida in a bitter water dispute that pits state’s oystermen against Georgia farmers.

The justices heard oral argument on Monday on Florida’s latest plea for a cap on Georgia’s use of a shared river basin. The case is an original jurisdiction proceeding, a rare type of dispute that goes straight to the Supreme Court rather than working through lower benches first.

“Denying relief in these circumstances not only would be a death sentence for Apalachicola but would extinguish Florida’s equal right to the reasonable use of the waters at issue,” Latham & Watkins LLP lawyer Gregory G. Garre, representing Florida, told the justices, referring to the epicenter of the state’s wild oyster industry.

Chief Justice John Roberts suggested, however, that figuring out who’s responsible for the industry’s collapse could be something like “Murder on the Orient Express,” the Agatha Christie novel in which multiple train passengers participate in a slaying to try to obscure culpability.

Kirkland & Ellis LLP lawyer Craig S. Primis, representing Georgia, pointed the finger back at Florida.

“The record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse,” he said, adding that the water usage cap Florida is requesting would amount to a “draconian” measure on Georgia.

Outside legal experts say Georgia retains the upper hand after Monday’s arguments. The justices seemed hesitant to step in on Florida’s behalf, given the steep legal burden downstream states have in water disputes and the questions about who’s really responsible for the oyster industry’s collapse, Georgia State University professor Ryan Rowberry said.

That high burden and previous special master reports favoring Georgia both put Florida at a disadvantage, said University of Maryland, Robert Percival, who tracks environmental issues at the Supreme Court. “It seems pretty clear that this time around, Georgia’s going to win,” he said.

Shared River Basin

At issue is the Apalachicola-Chattahoochee-Flint River Basin, which serves the Atlanta metro area, rural Georgia, and the once-booming wild oyster industry on Florida’s Gulf Coast. Florida says Georgia farmers along the Flint River are using too much water, depleting freshwater flows into Apalachicola Bay and causing the oyster population’s collapse. Georgia says Florida’s own resource management decisions are to blame.

After years of failed negotiations, Florida launched a Supreme Court fight in 2013, asking the justices to cap Georgia’s water use in the basin under a process called equitable apportionment. A court-appointed special master determined Florida didn’t meet the high legal bar for such a mandate, but the justices in 2018 said the official applied too strict a standard.

A new special master again in 2019 sided with Georgia in the fight. The Supreme Court now must decide whether to accept that conclusion, reject it, or order additional proceedings.

Legal scholars say similar interstate water disputes are likely to increase as climate change stresses water resources nationwide. The Supreme Court resolved another water case, Texas v. New Mexico, earlier this term.

Who’s to Blame?

Several justices expanded on the chief justice’s early questions about who’s to blame for Florida’s water woes. They pressed both sides on how they should handle conflicting evidence and conclusions from two different special masters in the case, and how they should balance the multiple factors affecting Apalachicola Bay.

Justice Sonia Sotomayor, questioning Garre, referred to one expert report that suggested Georgia’s water consumption contributed less than 10% to Florida’s problems. “How would that justify the use of an equitable remedy?” she asked.

The Supreme Court shouldn’t even consider an equitable apportionment order unless Georgia water use is shown to be the primary cause of oyster collapse, and it hasn’t been, Primis told the justices.

Ecological Resource

Justice Brett Kavanaugh pressed both sides for answers on how the court should approach a cost-benefit analysis of capping Georgia’s water use, when the impacts could include both substantial costs for Georgia and substantial benefits for Florida.

Kavanaugh is one of two current justices, alongside Justice Amy Coney Barrett, not on the bench when the Supreme Court first heard the case in 2018.

“Well, if you conclude the costs outweigh the benefits, then we’re done, but obviously we don’t think you should conclude that,” Garre said, adding that the court has the ability to calibrate an order to reduce Georgia’s costs.

Garre emphasized the ecological value and noted repeatedly during arguments that many of the ways Georgia could reduce water use would be would “cost Georgia next to nothing.” But Primis disputed the claim and said capping Georgia’s use would turn the Supreme Court into a “local water regulator” with still no benefit to its southern neighbor.

Justices Neil Gorsuch and Barrett pursued similar lines of questioning, zeroing in on the value of the oyster beds to assess benefits to Florida’s environment and oysters that would follow a Supreme Court order protecting water flows into Apalachicola Bay.

“Let’s just imagine that Georgia could take measures that cost less and help Florida preserve the Apalachicola oysters. How do we put a price on an environmental benefit like that?” Barrett asked Primis. The Georgia lawyer responded that the question is simply not before the court because a water usage cap wouldn’t address Florida’s “self-inflicted harm.”

Garre warned the justices against applying a “pure dollars and cents inquiry” to the case, recommending that they instead recognize the value of protecting the bay as an ecological resource.

“It’s hard to imagine New England without lobsters or the Chesapeake without crabs,” Garre said. But that will be the reality for Apalachicola and its oysters, he said, without a Supreme Court order. The court is expected to rule by summer.

The case is Florida v. Georgia, U.S., No. 22O142, oral argument 2/22/21.

(Updates with additional detail from arguments, comments from Rowberry, Percival.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.