Is the Supreme Court Capable of Valuing the Environment?

Justice Breyer: …And then tomorrow because they convince the Mayor of Atlanta, whatever, to drink more Pepsi or something, or whatever they drink, Coca-Cola, I imagine, and, and, whatever reason that is –

Mr. Primis (Counsel for Georgia): Yes, it would be, it would be Coca-Cola, Justice Breyer

Justice Breyer: I know that.

The Soda Wars made a brief appearance during last Monday’s oral argument in the US Supreme Court over how water in the Apalachicola-Chattahoochee-Flint River Basin should be allocated between Georgia and Florida (a fight known locally as the “Water Wars”). As the plaintiff, or moving party, Florida bears the burden of initially proving that it has been harmed by Georgia and that the Supreme Court has the ability to provide relief. At issue was the standard of proof Florida must provide in order to move to the next phase of litigation where the Court would actually allocate water between the two states. Special Master Ralph Lancaster ruled that in order for the Court to begin thinking about allocation, Florida must show by clear and convincing evidence that it was harmed and that the Supreme Court can actually provide relief. Florida disagreed.

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.


US Supreme Court Justice Stephen Breyer

During arguments, several justices across the ideological spectrum appeared sympathetic to Florida. Last year, Special Master Ralph Lancaster ruled that though the evidence shows that low water flow in the Apalachicola River was the main culprit behind the collapse of the oyster population in the Apalachicola Bay, Florida failed to show by clear and convincing evidence that a cap on consumptive water use in Georgia would provide relief to Florida’s environmental harms. In order to meet this standard, Lancaster decided that Florida had to show, with some degree of certainty, exactly how much water they would receive under a cap system and specifically show that the increase in water would offer significant relief to Florida’s environment.

In addition, since the US Army Corps of Engineers (“Corps”) manages the ACF Basin under federal statutes and it is not a party to this suit, any decree from the Court imposing a cap wouldn’t be binding on the Corps; meaning the Corps could disregard the Court’s decree and allocate water based on federal statutes. Lancaster felt that Florida, therefore, could not prove that a decree would offer the state any relief. Consequently, he recommended the case be dismissed as there was no need to move to the next step of analyzing the costs and benefits to Georgia and Florida of a proposed consumptive cap on Georgia’s water.

The justices repeatedly questioned the need for such a strict standard. Justices Kagan, Ginsburg, Sotomayer, Gorsuch, Roberts, and Breyer seemingly agreed that there was at least some evidence on the record showing that Florida would benefit from a consumptive cap on Georgia’s water use. For many of them, this appeared to be enough to allow the case to move forward into the cost-benefits analysis phase.

The same justices also pointed out that the Corps stated in its brief that though a decree from the Court would not be binding on it, the Corps would take a decree into account when deciding how to apportion water. Chief Justice Roberts, among others, thought this perhaps offered enough evidence that a decree could offer some relief to Florida and the case should go forward. The Court can accept Lancaster’s recommendation to dismiss the case or reject it and instruct Lancaster to do a cost-benefits analysis so that the Court can allocate water.

Atlanta Believes Environmental Benefits Are Too Vague to Be Analyzed By Courts

The City of Atlanta has made an interesting argument as to whether the Supreme Court, or any court, is capable of assessing the value of the environment. This is important since the Court would, theoretically, have to assign some value to Florida’s ecosystems in order to weigh its interest against the value of Georgia’s need for a sufficient agricultural and municipal water supply. If the case were to proceed, the Court would need some standard of comparison in order to allocate water between the states.

The Atlanta Regional Commission (along with Dekalb County, Fulton County, the City of Atlanta, Forsyth County, Cobb County, Gwinnett County, and the City of Gainesville) filed an amicus brief in support of the Special Master’s recommendation to dismiss the case.

Notably, counsel for the Atlanta Regional Commission (“ARC”) argued that a court is incapable of weighing the defined economic value of Georgia (water for people and agriculture) against the vague value of ecology and ecosystems. Citing previous water allocation cases, the ARC insists that since the Supreme Court has historically found it difficult to standardize the valuation of the environment, the issue is political in nature and not suited for a court; it is therefore a “non-justiciable” issue and must be decided by legislatures.

This “non-justiciable” basis is the same one the Supreme Court has used to avoid reigning in on gerrymandering. Because the Court has failed to agree on a standard for resolving gerrymandering, it has declared the issue to be non-justiciable and best left for the political sphere. Interestingly, the Supreme Court heard a gerrymandering case in October and will hear two more cases later this term opening the question as to whether they might finally agree that they can and should solve gerrymandering issues.

The environment can often be assigned a specific value to a party in a lawsuit, such as the monetary value of oysters to the oyster industry or the defined value of trees to timbermen. Though, often it can be difficult to prove how one party will be directly impacted by the preservation of one particular piece of the environment.


Apalachicola River
Author: Amy K Posner

The problem lies in the fact that in cases of equity, such as this one, the court is not determining which party is legally correct; it’s attempting to determine an equitable solution for both parties. There are some environmental cases in which the value of the environment may be too vague to adequately balance the interests. For instance, when one party states that the use of particular trees would house 100 low-income people and the other side states that the trees provide oxygen to everyone, a court may find it difficult to weigh those interests. If those were the only trees providing oxygen then perhaps it’s a bit easier. In situations like these, courts may determine that a legislature is better equipped to deal with the problem because a legislature does not necessarily need to entertain the idea of an equitable solution. However, one can easily see how a legislature dominated by one interest may be a terrible venue for addressing the needs of the underrepresented.

To be fair, the ARC’s brief doesn’t completely dismiss the idea that the environment can be valued; it just asks the Court to hold off on creating precedent in this case and to wait for another case in which the value of the environment can be “clearly and fully proved.” However, Florida’s economic interest in the environment seems to fairly well-defined: less freshwater in the Apalachicola Bay results in fewer oysters, which hurts the oyster harvesting economy.

If Atlanta has embarked on a sustainability campaign to show that it cares about the environment, but also believes such disputes over the value of the environment should be solved through the legislative process, then perhaps it should push harder for a tri- or bi-state water commission. Such a commission would have equal representation from all interested parties and could make compromises and goals that a court simply isn’t capable of creating.

The environmental problems of the Apalachicola Bay ecosystem are not solely caused by Georgia’s water use; Florida has taken many steps to undermine the health of that ecosystem. Similarly, it isn’t Florida’s fault that Atlanta has mismanaged (or simply not managed) its growth to the point that it must have this particular water in the ACF Basin. A multi-state commission would likely force the Atlanta metro area, Georgia, and Florida to better evaluate growth and make more responsible water use decisions.

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