Georgia Unanimously Wins Water Feud with Florida In Supreme Court

Photo: WUSF Public Media

The Supreme Court handed the state of Georgia an overwhelming victory yesterday in a long-brewing water feud with the state of Florida.   In the end, it boiled (bad pun) down to Florida’s inability to show its “injury” could be remedied if it received more water.  Writing for a unanimous court, Justice Barrett said (quoting the Special Master assigned to do fact-finding in this unusual case) that “Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm to Florida’s oyster fisheries or its river wildlife and plant life.”

Why This Matters:  Florida was its own worst enemy in the case.  Why?  The case turned on the fact that Florida argued its injury was to its Gulf of Mexico oyster fishery — it didn’t make a good case of greater harm. Georgia successfully argued that Florida’s oyster industry was wiped out because Florida had permitted overharvesting, and more freshwater from upstream in Georgia would not revive it.  In a case like this one decided on “equities” rather than laws, Georgia convinced the court that it had much more at stake than Florida, so the Justices sided with the Peach state’s farmers and Atlanta’s water needs.  

Lose-Lose

It may seem like this case was a slam dunk given that it was decided unanimously by a Supreme Court that has deep ideological divides.  But this case should have been a closer call.  The growing reduction of freshwater flowing into the Gulf of Mexico from Georgia is not just Florida’s problem — it could be a national problem due to the increasing fire risk in northern Florida, and the overall environmental decline in the health of the Gulf of Mexico that could cause real damage to both Florida and the region’s economy.

In a key passage, the Court held, according to SCOTUSblog, that “[t]he fundamental problem with this evidence — a problem that pervades Florida’s submission in this case — is that it establishes at most that increased salinity and predation contributed to the collapse, not that Georgia’s overconsumption caused the increased salinity and predation.” SCOTUSblog’s Lara Fowler went on to explain that instead, the Court held that the “prolonged multi-year drought and U.S. Army Corps of Engineers operations were ‘confounding factors’ that impacted Florida’s oysters. ‘Georgia’s consumption had little to no impact on the Bay’s oyster population,’ Barrett wrote in her opinion.”

Those “confounding factors” are only going to get worse as the Apalachicola Bay region’s ecosystem is deprived of the freshwater it needs to function. The oyster fishery there has been totally closed since last year and will stay closed until at least 2025According to the Pew Trusts, “oysters from the bay once accounted for about 90% of all those harvested in Florida and 10% in the United States.”

This will only hasten the demise of not only the remaining oysters, but it will also harm the seagrass beds, and all the other wildlife on which a healthy ecosystem depends — endangered or not.  The oysters are just the canary in the coal mine, as they say.  Apparently, no one was arguing for the people of Florida (and maybe even Georgia) who could be harmed by drought, wildfire, loss of tourism revenues, etc. that are likely to only worsen given the regional warming trends due to climate change.

Justice Barrett only made a passing reference to Georgia’s “obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.”   But there is no way for the state of Florida to hold the state of Georgia to that “obligation,” if there is an upstream bias, which this decision makes painfully clear.  As Fowler put it, this “ruling gives Florida no room to argue its case further; there is no opportunity for further appeal.”

To Go Deeper: Check out Lara Fowler’s analysis of the opinion in SCOTUSblog here.

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