'Water Wars' decision, by the numbers

Posted

By now, most Floridians in the Panhandle probably know that the United States Supreme Court has dismissed the state’s lawsuit against Georgia for that state’s unreasonable consumption of water from the Apalachicola Chattahoochee Flint River Basin.

But let’s take a deeper look at the ruling, by looking at the numbers: 1, 2, 3, 5, 9, 10, 38, 64, 89, and 20,000.

1. The High Court’s decision was handed down the first day of April. Those who love Bay oysters at first hoped that it was a cruel April Fool’s joke by the Court, but alas, no, it appears the timing was coincidental.

2 and 3. The Court began its ruling, “For the second time in three years, we confront a dispute between Florida and Georgia over the proper use of interstate waters.” It is unusual for the justices to hear multiple arguments and render two decisions in the same dispute. Do we not detect some exasperation in this start to the Court’s decision?

5. The justices found that 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. In short, four other “confounding factors” contributed to the collapse and Georgia’s consumption “had little to no impact.”

9. The Supreme Court consists of nine persons of varying age, gender, race, experience and philosophy. It is unusual to see them issue unanimous decisions but that is what happened here. (In contrast, in the previous decision in this case, five justices voted to remand for more factfinding and four voted to dismiss.) In short, either the justices did not care much who won, or they had little doubt about the facts and the law.

10. 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 remarkably short, 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.

38. Justice Barrett’s decision in Florida v Georgia was issued in 38 days from the oral argument held Feb. 22. This is very quick for disputes that are not subject to expedited treatment. Although there were a large variety of questions at oral argument, it seems likely that a draft decision had already been written by then.

64. 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. At the end of the day, the question has to be asked: What did Florida get for this money?

89. 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.

20,000. As a reminder of the impact of this ruling, the ACF River Basin extends over 20,000 square miles in Florida, Alabama and Georgia. 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. (Nebraska and Colorado have fought multiple battles in the Supreme Court over rivers crossing into both states.) As if to anticipate that, the next to last sentence in Justice Barrett’s decision cautioned Georgia that it “has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.”

Conclusion

When this matter first was addressed by the High Court in 2018, the justices were skeptical of Florida’s case but remanded it on a technicality. With no new evidence and a second recommendation of dismissal, in the second go-round the skeptics were convinced as well as the two new justices. The tone and rapidity of the decision suggest that the Court will dismiss future interstate river disputes unless the complaining state can present a compelling argument based on indisputable evidence.

Josh Fitzhugh is a retired attorney and insurance executive. Early in his career he was a business writer for the Associated Press in New York City and served as editor in chief of The National Law Journal, a weekly newspaper about law and lawyers. He and his wife winter in Apalachicola in their house in the Hill section of town.

Comments

No comments on this story | Please log in to comment by clicking here
Please log in or register to add your comment