The decades-long fight between Georgia and Florida over water rights in the Apalachicola-Chattahoochee-Flint River Basin (Basin) has finally come to end, right? We can all finally get some sleep and move on with our lives, right? Well, not really. What we got today is the US Supreme Court’s opinion in Florida v. Georgia, an original jurisdiction case where Florida asked the Court to equitably allocate water between the two states. In a 5 to 4 decision, the Court ruled in favor of Florida, sending the case back to the special master for further review. This is just a quick recap of the history and opinion; well take a more in-depth look at the decision in a future article.

Florida’s Last Ditch Effort

In an original jurisdiction case, which is relatively rare, the case begins and ends at the US Supreme Court – there is no federal district court to hold a trial or a federal appeals court to review the district court’s decision. A special master is appointed to conduct the trial phase of the litigation – ruling on motions and presiding over discovery – and is tasked with making a recommendation to the Supreme Court justices. This case was argued all the way back in January, so it has taken the Court about 5.5 months to make a decision. The average time between argument and opinion in original jurisdiction cases is only 79 days.

#SCOTUSWatchers: Assuming Florida v. Georgia is decided tomorrow it will be 170 days since arguments. Looks like the last time SCOTUS took more than 170 days to decide a case on original jurisdiction was in 1929: https://t.co/u6Q55WRgTL

— Adam Feldman (@AdamSFeldman) June 26, 2018

During argument in January, many justices appeared sympathetic to Florida’s plight. But sympathy isn’t always good enough. Florida is asking the Court to divide the water in the Basin between the two states in an equitable manner. This was viewed as Florida’s last ditch effort to get more water. Back in 2011, the 11th Circuit Court of Appeals overturned a federal district court opinion instructing the US Army Corps of Engineers (Corps) to dramatically reduce the amount of water going to Atlanta and increase the water going to Florida. The Supreme Court declined to hear an appeal to that case, which involved the interpretation of federal statutes giving the Corps the ability to manage water in the Basin.

Florida responded with a separate lawsuit asking the Court to use its Constitutional authority to settle disputes between states; in this case, the dispute would require the Court to apportion water in an equitable manner. Florida alleged that the US Army Corps of Engineers gives too much water to Atlanta and Georgia’s agricultural industry to the detriment of Florida’s environment and fishing industry. While the Court declined to hear an appeal to the issue involving the Corps’ statutory authority to allocate water, it agreed to hear Florida’s equitable apportionment case.

Last year, Ralph Lancaster, the appointed special master, recommended the Court dismiss the case because Florida had failed to show by clear and convincing evidence that Florida’s harm could be remedied by a Supreme Court decree. Since the United States did not waive its sovereign immunity right, the Corps is not a party to the suit. Since the Corps is dispensing water to the states based on federal legislation and it isn’t a party to this suit, any action by the Court would be not binding on the Corps and would therefore be meaningless.

Are the Justices Ready, Willing, and Able to Help Florida?

At argument several justices across the political spectrum pointed out that evidence in the record appeared to support Florida’s claim. They questioned why Florida needed to overcome the high “clear and convincing evidence” standard of proof in order for the case to move into the next phase. As for the fact that the Corps isn’t a party to the suit, Chief Justice John Roberts appeared willing to accept the Corp’s statement that it would ‘take any decree into account’ when dispensing water as good enough for the Court to at least try to equitably apportion the water. Note: Please see our previous article for greater discussion.

Comments made during oral argument turned out to be good indicators of the Court’s final decision. Chief Justice Roberts and Justices Kennedy, Sotomayor, and Ginsburg joined Justice Breyer’s opinion in favor of Florida. Without getting into too many details, the Court ruled that Special Master Lancaster’s clear and convincing evidence standard was too strict. The opinion states that before it can be concluded that Florida could not benefit from a remedy, Lancaster must first figure out exactly how much water would ameliorate Florida’s harm. Lancaster must therefore go back and make specific findings of fact regarding exactly how much water Florida could get under a cap and how effective this would be in providing relief. Florida must then show that the benefits of the apportionment would substantially outweigh the harm that might result.

Interestingly for Georgia, Justice Breyer pointed out that an equitable apportionment case gives the Court much more flexibility in crafting an opinion. Had this case arisen from a compact between the states, the Court would simply look at the text of the compact to reach a decision. Since no compact exists (recall that the two states have made no real effort to reach a compromise, at least publicly), the Court has the ability to use a wide-range of equitable factors to remedy the harm suffered by one state. Perhaps the states, but particularly Georgia, should have tried harder to create a water-sharing compact.

We’re still far from a final decision. Special Master Lancaster must now go back to work collecting evidence and looking at harm. The Court could still ultimately rule in favor of Georgia, but the five justices in the majority appear willing to create a decree restricting Georgia’s use of water in favor of Florida.

Please see our Water Wars page for much more information on the decades-long dispute.