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SCOTUS grills states in ‘water war’ arguments

The nine justices of the US Supreme Court probed counsel for Florida and Georgia Monday regarding the facts and nuances in the epic fight between the two states over water in the Apalachicola River basin.

None of the jurists expressed how they were going to vote. A decision is expected by June.

In a one-hour oral argument conducted telephonically, rather than in-person, at the high court because of the pandemic, about half the questions asked for explanations of data from the extensive record and half posed “what ifs,” the latter a reflection of the court’s desire to know the ramifications of any decision it might make.

“This is about the most fact bound case that we have heard in recent memory,” said Justice Samuel Alito. 

Perhaps the most interesting thread was the comparison between this case, Florida v Georgia, and the 1931 decision, New Jersey vs. New York, in which the court had ruled for New Jersey and its oysters over the more economically robust neighboring state of New York.

Florida’s counsel, Greg Garre, said the New Jersey case was controlling; Georgia’s counsel, Craig Primis, said that Georgia, unlike New Jersey, had proven that the remedy sought by Florida would have no impact on the Apalachicola oysters.

Each lawyer had about five minutes to speak before answering questions, and then as the initiator of the suit, Florida had a minute to sum up at the end. Garre used all of his time, and consistently cited references to the record. Primis was succinct: “Florida has not proved its case.”

Perhaps recognizing the weakness of his case – the most recent factfinder in the case ruled strongly in Georgia’s favor – Garre argued the additional water flow Florida wanted, 500 cubic feet per second at a minimum, in drought-stricken months, could be attained at no cost to Georgia by implementing better efficiency measures in the Flint River basin.

Balancing the cost to Georgia and the benefit to Florida is one of the tests the Supreme Court has used in the past to sort out these interstate water wars.

In response to Justice Amy Coney Barrett, Garre acknowledged Florida had dropped the argument that municipal water use around or in Atlanta was hurting Apalachicola Bay.

Justice Stephen Breyer, who wrote the majority opinion in 2018 which sent this dispute back for more fact-finding, rather than dismiss it as the minority had wanted, was particularly plain-spoken.

“Your basic problem,” he said, was the amount of testimony that overharvesting of oysters was the major cause of the 2012 collapse of the fishery. Second, he said, and Justice Clarence Thomas later agreed, “there’s a lot of disappearing water” between estimates by the two states’ experts. How do you account for that? Breyer asked

Garre said the justices should look at the declining annual water flows at the Woodruff Dam. Premis attributed the discrepancy to drought conditions, Corps’ controlled reservoirs, and to Florida’s “worthless” experts.

Three legal issues surfaced during the discussion:

First, why hadn’t the parties gotten more clarity as to the response of the US Corps of Engineers to any possible decree issued by the Supreme Court?  Florida said they tried but the fact finder refused to accept more evidence; Georgia said Florida could have proffered that information to the fact finder but did not. Justice Elena Kagan got Primis to admit that even if Florida proved Georgia’s consumption of water was very unreasonable and Florida had been badly injured, Florida would still lose because of the management of waters in the basin by the Corps of Engineers.

Second, does Georgia have to cause at least 50 percent of the water-related injury to Florida for the court to impose an “equitable distribution” of the waters in the basin? Georgia said yes; Florida said that Georgia’s contribution just must be “substantial.”

Third, if the injury to Florida is only modest, but Georgia’s cost of contributing water to Florida is negligible as a result of more efficient use of water in the Flint River basin, can the court still issue a decree? Yes, said Garre, but Primis said no, adding the court would become “a local water regulator” if it did so.

At the close of the questioning of Georgia’s counsel, Barrett, the newest member of the high court and a Louisiana native, asked how the court could “put a price” on the Apalachicola ecosystem distinct from the economic impact on oystering.

“That is a difficult question,” Primis replied. “The experts at trial debated whether one could put a monetary or economic value on that, but Florida never attempted to do so… Ultimately this may pose a difficult issue in a future case.

“Certainly one could imagine where an ecological harm did rise to the level of substantial invasion of serious magnitude,” he said. “It’s just not present here.”

Beginning his appeal, Garre had said the latest fact finder’s conclusion that Florida had suffered “an absence of harm… corrupted his entire analysis.”

He closed by saying “there has been a lot of debate about what may happen with the decree. But one thing is certain: without a decree Georgia will just continue to consume more and more and the Apalachicola will be irretrievably lost. The solution here can’t be to do nothing to stop this.”

To read a transcript of the arguments, visit https://tinyurl.com/yc659398

Handicapping the court

Is it possible to predict how the US Supreme Court will decide in Florida v Georgia? Not with certainty but that never stops lawyers or court watchers from trying.

Here are some factors to consider:

Previous Decision. The dispute was previously considered by the high court, where a majority of five decided to send it back for more fact finding. Four justices would have affirmed the recommendation that Georgia win. Those four justices remain on the court, but two of the five who voted to keep the case alive have retired or died. Advantage Georgia.

New Master Report. The court had to appoint a new “special master” on remand.  That master found for Georgia on almost all matters in dispute. The court doesn’t have to accept those findings but usually does. Advantage Georgia.

Ideological bias. In some cases, like those involving interpretation of the US Constitution, justices may have historical biases that can help predict how they may vote. There are no overarching philosophical issues in this case so facts will largely drive outcome. Advantage Georgia

Lawyer experience. Florida’s lawyer, Greg Garre, has argued 44 cases before the high court and served as US Solicitor General. His opponent, Craig Primis, is a former Supreme Court clerk with extensive litigation experience but many fewer arguments before the justices. Advantage Florida.

This article originally appeared on The Apalachicola Times: SCOTUS grills states in 'water war' arguments

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