“Finally, please settle this blasted thing. I can guarantee at least one of you will be unhappy with my recommendation and, perhaps, both of you. You can’t both be winners. But you can both be losers.”
-Special Master Ralph Lancaster
The US Supreme Court trial between Florida and Georgia over water rights wrapped up this past Friday with some words of wisdom from the special master assigned to the case, Ralph Lancaster. The two states have been locked in a three-decades long battle over rights to the water in the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) that stretches from North Georgia to the Apalachicola Bay in the Florida panhandle.
The 11th Circuit Court of Appeals ruled in 2011 that under existing federal laws the US Army Corps of Engineers could continue to distribute water from the ACF Basin in a way that favors Atlanta’s interests over Florida’s interests, effectively leaving Florida with one option: to request from the US Supreme Court an equitable apportionment of water between the two states. So Florida did just that, and in 2014 the Court agreed to hear it. Such a dispute between states is one that goes directly to the US Supreme Court, which means the Court must carry out a trial. You may be wondering why this is noteworthy. Since the nine-member (or currently eight-member) court overwhelmingly hears appeals, that makes it generally ill-prepared to conduct a trial. To assist the Court in such an unusual circumstance, a special master is appointed to oversee the process and make a recommendation to the justices.
Special Master Lancaster’s harsh words for the two states are hardly surprising. Months ago when the Court agreed to hear the case, SustainAtlanta posted several articles warning of the near-certain outcome that any apportionment decision would be an inadequate solution for everyone. This is because an equitable apportionment action in the Supreme Court isn’t designed to be a long-term solution to a complex matter involving ever-changing circumstances; it’s designed to immediately halt a squabble between states in an effort to prevent “armed conflict.” These are two very different things.
The much more significant reason as to why his words should come as no surprise is because we already know that the adjudicating-away of water woes is no solution. Other states in similar situations have already been down this road, and they have all found it to be a mistaken path. A court decree will likely fail to adequately take into account future changes in climate, weather, population, and the environment. Yet these changing variables are the same factors that will affect the amount of available water in the ACF Basin. We’re not sure just how hostile relations between competing parties will be in a future landscape, but we expect it’ll look something like this:
Just ask New York and New Jersey. Decades ago they were in nearly the same situation as Georgia and Florida; upstream cities needed water for their growing populations and downstream users needed water for their agricultural and oyster economies. After finding a Supreme Court decree that awarded water rights to New Jersey’s oyster population to be an inadequate long-term solution, New York, New Jersey, and the other states in the Delaware River Basin formed a commission to solve water quality and quantity issues amongst themselves. Turns out this was actually a great idea.
Georgia, Florida, and Alabama (another interested state, though not a party to the suit) have shown little interest in compromise. The one effort to create a water-sharing compact quickly died in 1997 as the states couldn’t agree to relinquish any power to a third-party commission. Political leaders, despite all being of the same political party, have consistently shown themselves to be on different pages when it comes to addressing the issue. While the Georgia governor worked on a good-faith effort to negotiate with Florida, the Georgia Assembly passed a resolution in 2013 to investigate the accuracy of the Tennessee-Georgia border in an effort to annex a part of Tennessee that contains the Tennessee River. In 2015, a bill was introduced in the Georgia Assembly to allow water from the Tennessee River to be transferred for use in Atlanta. Why compromise when you can just take something from someone else?
Meanwhile, the federal delegations from all three states have fought over the issue at the US Capitol. This past April, US Senator Richard Shelby (R-AL) inserted language into a spending bill instructing the US Department of Justice to investigate water contracts. This move was a clear attempt to get the Justice Department to investigate the water contracts that have apportioned water in a way that favors Atlanta. Unsurprisingly, since the 11th Circuit has already ruled in favor of Georgia’s interests, US Senator David Perdue (R-GA) feels the US Congress should have no involvement in the matter. The political disagreement over how to address water sharing is one reason why American Rivers named the ACF Basin as the most endangered river system in the United States in 2016.
The inability to even agree on a method of addressing the issue offers little hope for environmental health, the use of historical evidence, the responsible use of taxpayer money, maintaining a predictable water supply, and, perhaps most importantly, the general idea that compromise is still something we’re willing to entertain as a means of solving problems. Politicians, though, are arguably only as culpable as those who put them in office.
In many respects, the US Supreme Court is the last branch of government that openly discusses issues in a civil manner and often attempts to reach compromise. Let’s hope that in its decree, the Court follows in Mr. Lancaster’s footsteps and offers a stern warning to all of us that failing to compromise on issues that inherently involve the concept of sharing is imprudent and a magnificent waste of time and resources.
Please visit our Water Wars page for much more information on the conflict.