Water Wars Update: FLORIDA V. GEORGIA ORAL ARGUMENTS BEFORE THE SUPREME COURT
By: Clyde Morris, Attorney for the Lake Lanier Association
Most of us have never argued a case before the Supreme Court of the United States. That includes me, even though I am honored to be a member of the Bar of that august body. So how do you assess Georgia’s chances of winning, based on the latest high court question-and-answer session the legal profession calls Oral Argument?
Justices’ questions do not necessarily signal their leanings in a case, but they often provide two types of information that give us some insight into their thinking. Their questions usually highlight the issues the Justices think are important, and they often suggest what the Justices think the answers are.
Let’s imagine ourselves in the shoes of the states’ lawyers and ponder how it might have felt to be faced with the Justices’ key questions during oral argument. Of course, lawyers who practice before the Supreme Court are highly talented, trained specialists who are well-paid for being at the top of their field, so they are expert in thorough preparation and being quick on their feet during these sessions. They need to be, because if they stumble on any questions in this setting they could lose the entire case – and it’s already been going on for seven years and cost tens of millions of dollars.
First, because Florida is the Plaintiff, imagine you’re Florida’s lawyer. Chief Justice Roberts opens the questioning and wants to know how the Court should analyze the case if Georgia is merely a contributing cause of the collapse of Apalachicola’s oyster beds, not the sole cause. Justice Thomas follows up by asking when there were state line flows above 5,000 cfs, when the reduction occurred, and what role the Corps plays during drought periods.
Justice Breyer points out that experts testified overharvesting was the major cause of the oyster problem and that Florida has the burden of proving Georgia’s overuse was the cause by “clear and convincing” evidence; how do you respond? Justice Alito then asks how the court should reconcile the conflicting reports of its two “outstanding” Special Masters and why Florida has no good scientific evidence of salinity levels to prove that Georgia caused the problem.
Justice Sotomayor highlights serious inconsistencies in the testimony of three of Florida’s experts regarding Florida’s argument that increased salinity caused the decimation of the oyster beds. And Justice Kagan wants to know why Florida is now suggesting that all it wants is an increase of 500 cfs in state line flows when its legal briefs argued that nothing less than 1,000 cfs would make a difference.
Justice Gorsuch asks why a potential impact of $100 million to Georgia’s agriculture industry, compared to the $6.6 million total annual value of Florida’s oyster industry, wouldn’t preclude the Court from granting the remedy that Florida wants. Justice Kavanaugh wonders how the Court could possibly say the benefits of Florida’s requested decree substantially outweigh the costs to Georgia. And Justice Barrett queries whether the Corps would ensure that any extra water would go to Florida if the Court were to impose a cap.
Feel like you know how they’re leaning? If you’re Florida’s lawyer, you might be wondering if they’re all against you. Now put yourself in the place of Georgia’s attorney. Here is what they want to know from you:
Chief Justice Roberts suggests that Georgia is at least a contributing cause of the oyster bed collapse, and presses you to tell him what causation level would be necessary for the Court to impose a water use cap on Georgia – 20%, 40%, 50%? Justice Thomas recalls the first Special Master’s very pointed statements that Georgia agriculture was the cause of reduced state line flows – and he wants to know where the water went. Justice Breyer wonders how you explain the huge discrepancy in the amount of water Florida alleges is being used by Georgia compared to what Georgia says it uses.
Justice Alito refers to Florida’s “precious ecosystem” and queries how it should be taken into account in fashioning a decision. He also wants to know why Georgia should deserve a different outcome when in a precedent-setting 1931 case the Court imposed water use restrictions on New York in order to protect New Jersey’s oyster beds.
Justice Sotomayor says there is significant proof of increased water use by farmers, so the Court can’t just ignore conservation measures that Georgia could impose – and asks why the Court should ignore that those measures could come at no cost to Georgia. Justice Kagan gets even tougher: she tells you the case for equitable apportionment is completely clear. Then she challenges whether you’re really arguing that this case could be as bad as it comes and Georgia would still win, that Georgia could be overconsuming without regard to FL’s well-being and Florida could have massive harm, but because of the Corps’ operations it doesn’t matter?
Justice Gorsuch points out that the second Special Master, Judge Kelly, did not conduct an evidentiary hearing yet came to a completely different conclusion from the first Special Master – and he wants you to explain that. Justice Kavanaugh revisits the 1931 New Jersey v. New York case and asks why it wouldn’t have come out the other way if Georgia’s argument is correct. And finally, Justice Barrett wants you to tell her why the equitable apportionment Florida asks for isn’t appropriate if the remedy is costless to Georgia.
Now how do you think the Justices are going to vote? If you’re Georgia’s lawyer, the confidence you might have felt during Florida’s turn may pale in the afterglow of these questions.
Of course, I don’t have a crystal ball and can’t tell you how the Court will rule. But we can look at how each lawyer responded to the questions and try to assess how convincing we think the evidence and arguments are.
Florida’s lawyer, Gregory Garre, argued that he need only show Georgia’s water use was a substantial cause of the oyster bed collapse, not the sole cause. He points to evidence in the record that an additional 500 cfs of water would help alleviate the conditions that caused the decimation of the oyster beds. In support, he refers to a chart showing a steady increase in the number of months of sub-6,000 cfs flows before the crash in 2012. He reminds the Court that the Corps has said it would work to implement any remedy the Court puts in place. He points to Georgia’s skyrocketing agricultural water use and the unprecedented incursion of predators in Apalachicola Bay when the bay’s salinity increased due to Georgia’s overconsumption of water.
He tells Justice Sotomayor that the Court found New Jersey was entitled to relief with a change in salinity from only 0.5 to 1.5 parts per thousand, less than occurred here. He explains to Justice Kagan that halting Georgia farmers’ illegal irrigation, enforcing permits, stopping overwatering, scheduling irrigation, and eliminating farm ponds would increase state line flows enough to protect the oysters without affecting Georgia’s farming industry. He stands by the legal premise that Florida’s right to use ACF water is equal to Georgia’s. Most importantly, he argues that Apalachicola’s oysters are an irreplaceable ecological treasure that could be protected at little or no cost to Georgia.
Georgia’s lawyer, Craig Primis, admits to the Chief Justice that the Supreme Court has never directly addressed the causation issue in prior cases, but says previous cases suggest that a high level of causation – more than 50% – is necessary for the Court to intervene and impose an extraordinary remedy. He emphasizes that a 50% reduction in irrigation would result in a mere 1.4% increase in Florida’s oyster biomass. He explains to Justice Thomas that water is not disappearing, it is being stored in reservoirs authorized by Congress 80 years ago, and he points out that the Corps has been able to maintain a minimum state line flow of 5,000 cfs even during three back-to-back droughts because of that stored water.
In explaining why the Special Masters seem to have differing opinions on the impact of Georgia’s agriculture, he reminds Justice Thomas that Special Master Lancaster specifically reserved ruling on causation, whereas Judge Kelly was charged with examining that issue. He explains to Justice Breyer how Georgia’s water use estimates are based on actual consumption data collected by the state, and he tells the Justice that Florida’s experts admitted their salinity models had inherent errors of 2,000 to 10,000 cfs – which exceeds the amount of water Florida says Georgia consumes.
In response to Justice Alito, he argues that the law requires Florida to prove by clear and convincing evidence that its benefit substantially outweighs Georgia’s harm before the court should intervene in the state’s water policies. Crucially, he explains to both Justice Alito and Justice Kavanaugh that the difference between our case and New Jersey v. New York is that Florida’s own evidence shows there would be no benefit to the oysters from the additional water it has requested.
Replying to Justice Sotomayor, he explains that if the Court tries to fashion a remedy involving multiple restrictions on Georgia’s irrigation system, the Court could reduce itself to a role of acting as a sort of local water regulator and still not render any benefit to Florida. And he reminds Justice Kagan that Florida receives the considerable benefit of guaranteed minimum flows in times of drought through the Corps’ management of the ACF while Georgia is held to the same rules that apply to any other state regarding consumption.
To Justice Gorsuch, he replies that Florida already had all the evidence it needed in the record when the case was remanded to Judge Kelly, so there was no need for another evidentiary hearing. He reminds all the Justices again that expert testimony concluded that a 50% reduction in agriculture would result in a mere 1.4% increase in oysters, and even a 500 cfs increase in flow would significantly impact Georgia’s farming industry.
Finally, he answers Justice Barrett’s query by pointing out that a substantial invasion of right of a serious magnitude is required by the law in order for the Court to order equitable apportionment.
So, there you have it: the questions and the answers in the most important legal case to date – and perhaps ever – in the Water Wars. By putting yourself in the Justices’ places and assessing the responses the lawyers made to their questions, you can hopefully appreciate the complexities of the case and the difficulty in rendering a decision. We’ll all know by the end of the Court’s current term, June 30, what the Justice’s opinions turn out to be.
To listen to a recording of the oral arguments, go here: