Supreme Court justices pried deep into disparate evidence from two different sides of a Southern water war in oral argument Feb. 22. Justices’ questions of Florida and Georgia attorneys reflected their knowledge of the case’s complexity and its ponderous evidence in the lawsuit Florida filed in 2013.
Justice Samuel Alito described it as “the most fact-bound case we’ve heard in recent memory,” but also alluded that the court lacks clarity about how to decipher the evidence. “Two outstanding reports from two outstanding special masters” were not consistent on key points, he said, before continuing, “What do we do with that?” That question, posed to Florida attorney Gregory Garre during the 1-hour session, will be answered this summer when a decision will likely come down.
At stake is Florida’s request for the Court to equitably allocate water from the Apalachicola-Chattahoochee-Flint river system to send more water down to Apalachicola Bay which suffered a collapse of oyster fisheries after a 2012 drought. Georgia contends that Florida caused its own woes by overfishing and that cutting Georgia’s water use would hurt Georgia’s economy more than it would benefit Florida’s. The lawsuit seeks to cap Georgia water use at current levels until 2050.
Lake Lanier, the largest reservoir on the river system, was not mentioned in the hearing during which Garre stated Florida was solely targeting Georgia’s agricultural water users on the Flint River. The bullseye on Georgia farmers became clear in Garre’s response to Justice Elizabeth Coney Barrett’s query, “Are you abandoning the challenge to municipal users?” He answered that irrigation practices on the Flint River were to blame for decreased water flow. He said evidence showed that Georgia could send 500 cubic feet of water per second downstream at no cost to Georgia farms.
Georgia attorney Craig Primus disputed not only the cost to Georgia of limiting agricultural water use, but also the potential benefit to Florida. He stated that 80 percent of Georgia farmers are “underwatering” and if the court were to intervene in local water ordinances it could find itself in the role of “local water regulator.”
Justices’ questions in the live-streamed audio seemed balanced, with no indication of favor to either side. One topic raised first by Justice Neil Gorsuch and later by Brett Kavanaugh, Barrett and Alito focused on whether a monetary figure could be attached to Florida’s ecology beyond managed oyster fisheries. Following up on Garre’s description of Apalachicola Bay as a unique ecological treasure that is being decimated by Georgia’s water use, Alito questioned Primis how to factor in alleged damage to the ecosystem. “It’s not going to be purely a question of money,” he said. Primis asserted Florida had not met its burden of proof in showing Georgia caused environmental harm in the bay, but that any harm was self-inflicted by Florida’s mismanagement.
Other topics raised during the hearing included:
– Florida’s repetitive comparison of its plight to a 1931 New York v. New Jersey water case in which the court ruled in New Jersey’s favor to avoid injury of the oyster industry in Delaware Bay. A ruling in favor of the more populated and prosperous state “would have crushed New Jersey,” Garre said.
– What’s really killing the oysters? Chief Justice John Roberts likened conflicting evidence on what caused oyster fishery collapse to the mystery novel, Murder on the Orient Express.
– What’s happening to the water? “This is like the case of the disappearing water,” said Justice Clarence Thomas. “Where is it going if Georgia is not responsible?”
– If Florida is allocated an additional 500 cfs would it be of substantial benefit? Would it outweigh the cost to Georgia?
Lanier area residents and water users have followed the lawsuit for seven years after initially worrying that Florida wanted to tap more water from Georgia’s largest reservoir. After collecting data from Georgia municipalities and industries in the ACF, Florida eventually pointed a finger at Georgia farmers along the Flint River, who use more water than all other entities combined.
The Feb. 22 hearing was the second go-round before Supreme Court justices, who in 2018 remanded a former Special Master’s recommendations to deny Florida’s claims. A second Special Master has also recommended denial. The composition of the court has changed since it originally voted 5-4 to allow further consideration of Florida’s allegations. Two justices who voted in Florida’s favor – Ruth Bader Ginsberg and Anthony Kennedy – were replaced by Kavanaugh and Barrett.