Water Wars

The Supreme Court Can’t Solve the Water Wars

We’ve long held that the Supreme Court is a poor forum for resolving the war between Florida, Georgia, and Alabama over water use in the Apalachicola-Chattahoochee-Flint River River Basin (Basin). The underlying concerns played out in the Court’s June 27 opinion in Florida v. Georgia, which sent the case back to the special master for further proceedings. The ruling was clearly a win for Florida, but the forthcoming final ruling may very well be a win for Georgia. The entire case, though, represents a debacle in water use policy, which makes us all losers.

Click for a Quick Synopsis of the Water Wars

Georgia, Alabama, and Florida are reliant on water from the Apalachicola-Chattahoochee-Flint River Basin for drinking, agriculture, energy production, tourism, and other environmentally-derived economic reasons. Atlanta has become reliant on the water for potable use, rural Georgia is reliant on it for agricultural uses, Alabama needs it for energy production, and Florida needs it for the health of the Apalachicola Bay.

Through federal statutes, the US Army Corps of Engineers (“Corps”) manages the flow of water, which includes the operation of 5 dams in the Basin. Back in 1989, the Corps proposed a long-term allocation of water in Lake Lanier to the Atlanta area. Alabama, upset with the proposal, filed litigation against the Corps seeking to overturn this proposal; Georgia and Florida then intervened in the case. In the mid to late 1990’s, the parties took a brief respite from fighting in court to attempt a peaceful resolution of the matter. The parties formed a compact where they essentially agreed on agreeing to finding a solution, but didn’t actually agree on anything else (such as how to allocate water).

After another decade of litigation, the 11th Circuit Court of Appeals ruled in 2011 that the Corps had the authority to allocate more water to the Atlanta metro area. The Supreme Court declined to hear an appeal to that case, so Florida filed a separate complaint with the Court to equitably apportion water between itself and Georgia. Florida has consistently argued that the current allocation of water to metro Atlanta deprives the Apalachicola Bay of the freshwater needed for a healthy ecosystem.

In 2014, the Court granted the complaint and appointed Ralph Lancaster as the special master to oversee the case. Over the past several years Lancaster has been compiling evidence presented by the two states and ruling on motions. In 2016, he recommended that the Supreme Court rule against Florida because it failed to prove by clear and convincing evidence that capping Georgia’s water consumption would improve water flow to Florida during times of drought. On June 27, 2018, the Supreme Court rejected the recommendation and sent the case back to Lancaster for further proceedings

 

A Clear and Confusing Decision

The 5-4 decision is full of confusing principles and instructions, but it can really be boiled down to one point: can Florida show that any benefit it receives from a cap on Georgia’s water use would substantially outweigh the harms a cap would cause to Georgia?

Justice Thomas, the author of the dissenting opinion, thought the answer was a clear no. Citing evidence on the record, he believes that not only has Florida failed to show that the US Army Corps of Engineers (Corps) would implement any decree capping Georgia’s water use, but a cap would offer Florida minimal economic benefits of around $15 million a year while costing Georgia anywhere between $190 million and $1 billion in annual economic harm. Since the Corps is not a party to the suit, it would have to agree to incorporate a Supreme Court decree into its Basin operating manual for the decree to have any real meaning.

On the other side, Justice Breyer, the author of the majority opinion, seemed less interested in these numbers, at least for the time being. While Justice Thomas would have dismissed the case due to Georgia’s economic harm clearly outweighing Florida’s economic benefits, Justice Breyer thought dismissal was premature. The majority believed that Florida was able to show that the Court could fashion some sort of apportionment decree, so the special master should attempt to gather more evidence to be used in a potential decree. The Court will then weigh the costs and benefits to both sides.

The Environment is Too Damn Speculative

Justice Thomas’s foray into the cost-benefit analysis shows why the Supreme Court shouldn’t be solving this problem. We need an extensive regional water policy that take into account all interests and changes in weather, climate, and population. The Court simply isn’t capable of doing that.

In equitably apportioning water, the Court must assign value to each state’s interest before it can weigh those interests against each other. As we addressed in a previous article, the Supreme Court has been hesitant to take into account interests that can’t easily be given an economic value. While aspects of the environment can often easily be assigned an economic value, it also offers benefits that aren’t as easy to quantify. For example, trees provide lumber and shade for buildings, two items that can be easily converted to economic values; but they also provide oxygen and other health benefits, which are more difficult to convert to economic values.

Assigning value to resources is difficult, but so too is determining how likely a state will actually realize the value. We can assign a value to timber, but we also have to determine how likely it is that the trees will actually be used as timber. This is referred to as the state’s speculative interest in the resource – in this case, water.  Precedent says that the Court should not dismiss a water apportionment case simply because a state’s interest is uncertain or speculative.

Chattahoochee River. Photo Credit: US Department of the Interior

Forecasting Georgia’s interest is perhaps rather easy. The state is currently using water for personal consumption and agriculture and we can fairly accurately model future growth. Florida’s interest, though, may be more difficult to assess. For example, Florida may need a certain amount of water in the Apalachicola River in order to maintain healthy trees for the purpose of mitigating storm damage. We can quantify the value of trees and wetlands in mitigating storm damage, but it’s difficult to forecast when those services will be needed, e.g. when will a category 5 hurricane hit the Florida panhandle. This makes it difficult, if not impractical, for the Court to weigh benefits that will almost certainly be needed soon versus benefits that may be needed at some point in the future.

Not only is future water use sometimes difficult to predict, but future water supply will become even more difficult to predict. An analysis of how much water Florida would receive with and without a cap is essential to the case and the analysis relies on historical rainfall averages. As the climate becomes increasingly volatile, those historical averages may prove to be poor predictors of future rainfall. The southeast relies heavily on rainfall from tropical storms to end droughts, but recent reports suggest that changes in the ocean’s circulation could result in fewer tropical storms making landfall, though the storms may become more powerful. It’s nearly impossible for the Court to take this into account even if it’s open to entertaining speculative scenarios.

Florida Won the Battle, But Lost the Case Decades Ago

Perhaps the more fundamental problem is that the Court is dealing with two groups of dramatically different sizes. As the dissenting opinion points out, 5 million people live in Georgia’s portion of the Basin while only 100,000 reside in Florida’s portion. Given this, it’s seemingly impossible for Florida to show that its benefits would substantially outweigh the harm caused to Georgia if a cap on Georgia’s water consumption were implemented. Practically speaking, this means that Georgia has a more legitimate interest in the water than Florida.

But is this really how water policy should function? Say you’ve been using a stream to irrigate your small garden for decades and then one day a large-scale farm develops upstream and diverts a significant amount of the water. If we just look at the economic benefits the stream is providing to both parties, the large-scale farm is going to win. Placing a cap on that farm’s water use in order to maintain flow to your backyard garden would likely cause substantial harm to the farm while only providing a modest benefit to you. It wouldn’t seem fair or equitable for the Court to do nothing in this situation, though.

This large-scale farm versus backyard gardener scenario is perhaps an easier case than the one presented in Florida v. Georgia because at least in this scenario the Court is being asked to compare two similar uses. It becomes even more difficult for the Court to agree to cap upstream use if the upstream user is a large population center. This scenario is magnified a thousand times in Florida v. Georgia due to Georgia’s extreme population advantage. Even though the special master found that Georgia has used water in an inequitable manner, it’s impractical for the Court to severely restrict water to a large population center.

Build Quickly Before No One Knows What Happened

The lesson then is obvious: use water as quickly and as haphazardly as possible before the Court can use its equitable powers to protect a downstream state’s legitimate interest. Perhaps the majority realizes this inequity and is scratching for some bit of evidence that would allow it to help Florida while minimizing harm to Georgia. Florida is certainly not an innocent party in this case, but it’s hard to imagine that Florida wouldn’t have fared better had the Apalachicola Bay area developed in a similarly irresponsible manner as south Florida (or dare we say, metro Atlanta).

All of this is precisely why the Supreme Court is such a bad forum for debating this issue. We need a regional water policy that takes into account all interests and the Court is incapable of providing such a policy. Should Georgia ultimately win the case, Florida and Alabama can still sue over future Corps manuals. Changes in Congress could result in legislation benefiting one state to the detriment of the others. Even if Florida prevails, additional suits will be required with every change in rainfall or population. In other words, the Supreme Court was never capable of ending the war.

Kennedy’s Retirement May Be Good for Georgia

With the retirement of Justice Kennedy we don’t know how a future recommendation from the special master will be viewed by the Court. Since water appointment cases are original jurisdiction cases, meaning they start and end in the Supreme Court, nominees to the Court have no prior experience with such cases. Though the justices did not split along traditional party lines (Chief Justice Roberts and Justice Kennedy, Republican appointees, joined the majority while Justice Kagan joined the dissent), it may be safe to say that a justice to the right of Kennedy, say Brett Kavanaugh, will view this as a lost cause for Florida.

Given the population discrepancies and the likely high economic costs to Georgia and low economic benefits to Florida of implementing the proposed cap on Georgia’s consumption, all the justices could view this as a lost cause for Florida.

 

Cover Photo Credit: US Department of the Interior


 

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