THIS IS ONE OF OUR TOP 10 IN ’21 STORIES
Early in the year, 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.
On April 1, they issued a unanimous ruling that dismissed the state’s long-standing lawsuit against Georgia for that state’s unreasonable consumption of water from the Apalachicola Chattahoochee Flint River Basin.
The justices found Florida had not proven that the collapse of the oyster population in the Bay was caused by Georgia’s upstream water consumption. At most, they said, increased salinity and oyster predation only contributed to the collapse; other likely causes were overharvesting brought on by fear of pollution from the Deepwater Horizon disaster, inadequate replenishment of oyster beds with oyster shells, drought and other climatic conditions.
Supreme Court opinions generally run long, from 30 to 50 pages and oftentimes with one or more dissents. This decision, authored by the Court’s newest member Justice Amy Coney Barrett, was just 10 pages. By finding that Florida had not carried its “heavy burden” in causation, the justices said they did not need to address other potential issues.
Florida v. Georgia commenced Oct. 1, 2013 and concluded April 1, 2021, for a total of 89 months of litigation. Even considering the generally slow pace of our state and federal judicial systems, that’s a long time.
The Florida Department of Environmental Protection confirmed in mid-February that since this case was brought, the state has paid $64 million in lawyer and expert fees and associated costs. That’s about $3 for every Florida resident, or $5,000 for every person living in Franklin County.
No court ruling or decree now limits Georgia’s use of the waters in the Basin, but neither is Florida barred from filing another lawsuit against Georgia in the Supreme Court for future injury.
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.
Florida’s counsel, Greg 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 a question from Barrett, Garre acknowledged Florida had dropped the argument that municipal water use around or in Atlanta was hurting Apalachicola Bay.