The Supreme Court heard oral arguments on Monday in Florida v. Georgia, a rare and legitimate original jurisdiction case involving a dispute between two U.S. states. At the heart of the case is Florida’s claim that Georgia’s “overuse” of water from the Apalachicola River-Chattahoochee-Flint (ACF) River Basin destroyed Florida’s oyster industry. Florida’s lawyer, former Solicitor General Gregory G. Garre, told the Court on Monday that Georgia’s continued unlimited use of water poses a potential “death sentence” for Florida’s oyster fisheries.
For years, Florida has been seeking a court order forcing Georgia to limit its water consumption. Georgia disagrees that its water usage caused Florida’s oyster collapse, and warns that capping its consumption would hurt both its farming industry and the Atlanta metropolitan area. Because SCOTUS sits as trial court for inter-state disputes, the case offers a unique chance to witness the justices acting as fact-finders in an environmental case in which the Court may fashion an equitable resolution.
Monday’s oral arguments showcased the justices’ keen ability to present inquiries about the sharing of natural resources, state responsibility for preserving each others’ industries, and the sometimes subjective nature of scientific data presented in water-rights disputes.
Chief Justice John Roberts began questioning with another one of his Agatha Christie analogies.
“How should we analyze the case if we think… Georgia contributed to the oyster problems but not enough to cause that on its own?” he asked. “The situation is like Murder on the Orient Express,” the chief justice elaborated.
Listing other factors that might have harmed Florida’s oysters, Roberts questioned what role things like drought, over-harvesting, and poor regulatory policies might have played independently of Georgia’s water consumption.
The question is one that often arises in tort cases—what to do when a group of causes work together to produce a harmful result. Florida’s position on the matter was that if Georgia’s overuse is a “substantial cause,” the fact that there may be other additional contributing causes does not alleviate Georgia’s responsibility.
Georgia, however, pushed for an alternative standard. Craig S. Primis argued on behalf of the Peach State that simply being a “substantial cause” wouldn’t be nearly enough in this case over important natural resources.
“Given the extraordinary nature of the remedy,” Primus argued, “causation must be much higher for the state whose conduct is being challenged.” Primus urged the Court to adopt a standard “akin to a but-for causation,” which would mean Georgia would only be legally responsible if Florida could prove its oyster industry would have been safe without Georgia’s influence.
Later, Primis called the damage to Florida’s oyster industry “a self-inflicted wound,” and slammed Florida’s proposed solution as something that would only produce a 1-percent increase in oysters.
Justice Stephen Breyer called evidence that Florida had over-harvesting oysters a “major problem” with Florida’s case. Breyer then continued on to point out a serious inconsistency in the manner in which the two states collected water data for underlying the case.
“I assume your expert went out and said ‘this is how much water falls in Georgia every year, and we’ll subtract from that the water that evaporates, and we end up with a number that they must be using — and that’s a lot,'” Breyer said of Florida’s data collection. By contrast, he continued, “the other side says ‘let’s go out and measure what they’re actually using— and they went and measured it, and that was a little.”
“Between the two,” Breyer pointed out, “there’s a lot of disappearing water.” “Where does it go and why?” he demanded of Florida.
The disparity in water-consumption measurement raised Breyer’s question was noted by ecologists.
Justice Breyer asks about over harvesting of oysters in Apalachicola Bay, and the disparity in Florida and Georgia’s modeling to figure out how much water Georgia actually uses.
— WFSU Ecology Blog (@wfsuIGOR) February 22, 2021
Justice Samuel Alito seemed to imply that inconsistencies like those raised by Breyer posed particular problems for the Supreme Court acting (unusually) as fact-finder in the case. “This is the most fact-based case we have heard in recent memory,” Alito remarked. He continued to point out that the data, and even the reports from the two court-appointed special masters “are not, to put the point mildly, entirely consistent on a number of key points.”
“What do we do with that?” Alito asked.
Florida’s lawyer answered — perhaps somewhat unhelpfully for the justices — “Ultimately this Court has to make its own finding.”
Justice Clarence Thomas used some of his question time to make a similar point, saying that Florida’s case brief could be entitles, “The Case of The Disappearing Water.”
At times, the justices questioned whether the numbers were really as dramatic as the litigants characterized them to be. Justice Sonia Sotomayor pressed Florida on its position, stating that she was doubtful that Georgia’s consumption could possibly be viewed as an invasion of Florida’s rights sufficient to warrant court intervention.
Justices Neil Gorsuch and Brett Kavanaugh posed several questions about the way the Court should evaluate the proposed harm to Florida’s waters against the potential burden on Georgia. Gorsuch noted that the Florida’s remedy might cost Georgia up to $100 million per year during drought years, while Florida’s entire industry is only valued at $6.6 million per year.
“Why doesn’t that preclude or at least pose a problem for you?” Gorsuch demanded of Florida’s lawyer.
Garre argued on Florida’s behalf that at least some of what Florida asked for could be accomplished at no cost to Florida, such as enforcing existing permit laws, eliminating over-watering, scheduling irrigation, and reducing evaporation. Still, the question of balancing the equities between the two states clearly presented complexities for the justices.
Justice Amy Coney Barrett shifted focus to inquire about the Court’s role in enforcing any remedy it might order. Moreover, Barrett gave Florida a chance to highlight what may have changed since the last time the case came before SCOTUS (notably, before Barrett’s presence on the Court). In the past, Barrett explained, the Supreme Court ruled that its appointed special master “required too much and too soon” as a remedy.
“What more have you shown this time around?” Barrett asked. “Have you done anything additional to show what the [U.S. Army Corps of Engineers] could do to accommodate?”
The case last came before the Supreme Court in 2018, when Anthony Kennedy and Ruth Bader Ginsburg had been part of the Court’s 5-4 majority. At the time, the Court did not rule directly in favor of either state, but rather, that the court-appointed special master had used the wrong standard of review.
In oral arguments, the Court gave little indication of how it would rule in the case; rather, the justices appeared full of questions as to how to use legal principles of equity to adequately settle an important dispute over our most precious natural resource. As one Twitter user pointed out, there may have been much talk of oysters, but none from walruses or carpenters.
Scotus audio: Florida v. Georgia. Whether one state’s use of river waters caused an illicit drop-off in the oyster population in the associated bay. Walrus lobby and carpenters’ union inexplicably not joined as necessary parties.
— D.E. Frydrychowski (@ShakespeareJD) February 22, 2021
[Photo by Samuel Corum/Getty Images]
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