Supreme Court set to hear Fla. v. Ga. on Feb. 22

The U.S. Supreme Court will hear oral arguments in a longstanding water dispute between Florida and Georgia on Feb. 22, more than two years after justices remanded the case for further consideration. The court’s decision, expected this summer, may put to rest this particular episode in the Georgia, Florida, and Alabama power play for the precious resource.

Florida filed suit in October 2013, claiming Georgia consumed more than its share of water in the Apalachicola-Chattahoochee-Flint river system, causing the collapse of oyster fisheries in Apalachicola Bay. Two court-appointed special masters have recommended the court drop the case. Voting 5-4 in 2018, justices remanded the first special master’s report and later assigned the case to another, who in Dec. 2019 also denied Florida’s claims.

Florida attorneys have pled for court sympathy for Apalachicola’s oystering tradition, which they claim will be doomed without the court’s intervention. Georgia attorneys have pointed to evidence of Florida’s overharvest of oysters and the Peach State’s larger economy that quenches its thirst from the ACF.

Metro Atlanta water users and stakeholders around Lake Lanier initially feared Florida’s lawsuit would target the ACF’s largest reservoir; however, lawyers focused on south Georgia farmers on the Flint River. Georgia agriculture saps more water from the ACF than all other entities combined.

The composition of the court has changed significantly since justices first heard the case. In that close decision, announced June 27, 2018, the majority indicated some sympathy for Florida’s woes and remanded the initial Special Master’s report, which denied Florida’s claims on a technicality, for further consideration. Two of that majority are no longer on the court. Justice Anthony Kennedy announced his retirement the same day the court declared the remand and has since been replaced by Brett Cavanaugh. Amy Coney Barrett now fills the vacancy left by the late Ruth Bader Ginsburg. Both Kennedy and Ginsburg voted with the majority in 2018, along with Justices Stephen Breyer, John Roberts, and Sonia Sotomayor.

Writing for the majority, Breyer wrote that the first Special Master, Ralph Lancaster, held Florida to “too strict” a standard to prove its case. During the first hearing, several justices’ questions hinted a desire to help Florida get more water from the river system but also indicated they lacked a clear quantitative measure about how much water Florida needs for meaningful improvement and how limiting Georgia’s water use could potentially harm Georgia’s economy.

The second Special Master, Paul J. Kelly, sought quantitative answers and wrote in his recommendations that evidence did not show Georgia’s water use harmed Florida. He further stated that evidence demonstrated Georgia’s water use is reasonable and that evidence did not show the benefits of limiting Georgia’s water use would outweigh the potential harms to Georgia’s economy.

His report offered statements similar to those of Justice Clarence Thomas, who wrote in his dissent that Georgia would suffer greater harm than Florida if its water use is cut. He contrasted a Georgia regional population of more than 5 million and an annual gross regional product of $283 billion with Florida’s regional count of fewer than 100,000 people and an annual $2 billion regional product.

Since the last time justices heard oral arguments in the case, Florida seems intent on propping up the oystering culture of Apalachicola Bay. Private and state entities have committed to pumping almost $50 million to help restore the bay’s oyster fisheries. Additionally, Florida Fish and Wildlife Commission announced a plan to ban wild oyster harvest in Apalachicola Bay through Dec. 3, 2025 or until 300 bags per acre of adult oysters can be found on a significant number of reefs.

Both states have spent in excess of $40 million on the case since 2013.

How you can listen live

As of mid-January, the Supreme Court had not announced plans to hold February oral argument sessions in person at the court building. The court has heard oral arguments by telephone conference since April 2020. In keeping with public health guidance in response to COVID-19, the Justices and counsel all participate remotely. According to a January press release, the “court building remains open for official business only and closed to the public until further notice. The court will continue to closely monitor public health guidance in determining plans for the February argument session.”

Schedule: Florida v. Georgia is the second case scheduled for the day, after Trump v. Sierra Club. The day’s arguments are scheduled to begin at 10 a.m. There will be a three-minute pause before the second case begins. Any exceptions to the norm, such as extra time allotted by the court for a particular argument, will be indicated on the argument calendar, available approximately one month prior to an argument session. The argument calendars are on the court’s website.

The attorneys

Florida: Gregory G. Garre, of Lathem & Watkins, former National Law Journal Litigator of the Week and U.S. Solicitor General, has argued 41 cases before the Supreme Court.

Georgia: Craig Primis, of Kirkland & Ellis, Feb. 2018 “Litigator of the Week” in National Law Journal, which declared him as “winning the water war.” Both are based in Washington, D.C.

The hearing: The court usually allots one hour of argument time for each case, with each side speaking for 30 minutes. Much of the hearing time is actually dominated by responses to justices’ inquiries. Attorneys generally reserve time from their presentation to rebut arguments from the opposing side.

The vote: Justices vote on how to decide the case in private conference later in the hearing week. The senior justice in the majority appoints a justice to write the majority opinion; the minority opinion is composed by the senior justice voting on the minority side. Justices writing opinions then share written opinions among themselves, summarizing their reasons.

The decision: The justices are expected to announce their ruling in open court in June or July.

Live streams/hearing transcripts/oral argument recordings: The court will provide a live audio feed of the arguments to CBS News, the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. Written oral argument transcripts will be available on the same day the argument is heard.  The oral argument audio and a transcript of the oral arguments will also be posted on the court’s website following oral argument each day.