FLORIDA GETS A “DO-OVER”
Posted on July 2, 2018 by Karen Crawford
Florida v. Georgia, 585 U.S. ____ (2018), Slip Opinion No. 142, June 27, 2018
On June 27, in a 5-4 decision the U.S. Supreme Court (SCOTUS or the Court) rejected the Special Master’s conclusion that the Court could provide no relief to Florida for its claims of harm from Georgia’s upstream water usage from the Flint River, ultimately affecting downstream flow in the Apalachicola-Chattahoochee-Flint River basin, a basin affected by operations of a dam and lake by the U.S. Army Corps of Engineers (Corps). SCOTUS reserved judgement on the ultimate outcome of the case, and sent the case back to the Special Master for further consideration with specific direction as to the additional factual findings it considered necessary to decide this case.
Citing several historical decisions by the U.S. Supreme Court in equitable apportionment disputes over water rights between neighboring states, the Court characterizes the following guiding principles to be used in deciding such cases:
1. The states possess an equal right to make a reasonable use of the waters in question.
2. When confronted with competing claims to interstate water, the Court’s effort is to secure equitable apportionment, without quibbling over formulas.
3. Given sovereign status and equal dignity, a complaining state’s burden is much greater than the burden ordinarily shouldered by a private party seeking an injunction, requiring a demonstration by “a clear and convincing evidence” that it has suffered a “threatened invasion of rights” that is “of serious magnitude.”
Once the Court finds the complaining State has met this burden, the Court must determine whether the State has shown it has not only some “technical right,” but a right with a “corresponding benefit” as a precondition to any equitable apportionment. If so, then the Court will seek to arrive at a just and equitable apportionment of an interstate stream, by considering all relevant factors, because equitable apportionment is flexible and should weigh all relevant factors by examining extensive and specific factual findings to properly apply the doctrine of equitable apportionment. To do this, the Court has observed it must consider physical and climatic conditions, the consumptive uses in the several sections of the rivers at issue, the character of return flows, the extent of established uses, the availability of storage water/capacity, the practical effect of wasteful uses on downstream area, and the benefit to downstream areas against the damage to upstream areas if a limitation is imposed.
In this case, however, the Court stated the Master instead made several assumptions regarding what should be key findings of fact, including that 1) Florida has suffered harm from decreased water flow into the subject basin, 2) Florida had shown that Georgia has taken too much water, and 3) inequitable use by Georgia had caused injury to Florida. These assumptions were found by the Court to stop short of providing the necessary findings of fact required to decide the case. As a result, all Parties agreed that the recommendation of the Special Master turned on one single, discrete issue –whether Florida has shown that a cap on Georgia’s consumption would address its injury if the decree did not bind the Corps as well.
The Court determined that the Master’s conclusion that Florida failed to meet its burden because it did not present “clear and convincing evidence” that its injuries could be redressed by a decree capping Georgia’s upstream water consumption if that decree does not also bind the Corps, was too strict a standard to apply to redressability at this point in the case. The Court determined that the Special Master had not defined the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia’s use of the Flint River waters, and that unless and until that necessary fact was established, Florida needed only to show that, applying the principles of “flexibility” and “approximation”, it is likely to prove it is possible for the Court to fashion such a decree.
The Court determined that further findings are needed on all of the evidentiary issues underlying the Master’s assumptions before the Master’s conclusion that Florida failed to meet its initial burden of demonstrating that the Court can eventually fashion an effective equitable decree could be reached and supported. The Court stated that “to require “clear and convincing evidence” about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse.” The Court addressed here only that Florida had made a legally sufficient showing as to the possibility of fashioning an effective remedial decree, thereby meeting its burden.
The lengthy dissent ultimately agreed with the Special Master’s conclusion that the Corps would not change its operations during droughts if the Court capped Georgia’s water use, and thus Florida would not benefit during droughts. Further, the dissent argued there was no need to remand the case for further findings by the Special Master as the evidentiary findings ultimately rest with the Court. But the majority opinion discusses the differences of view as to interpretation of the facts related to estimated water flows, further emphasizing the complex nature of these cases. The dissent suggests that giving Florida another bite at the apple was unlikely to produce additional evidence to affect the outcome and would be unfair to Georgia. Ultimately, the dissent appears to agree that the Master’s ordinary balance-of-harms analysis was sufficient, and he applied that test.
Also, this blogger found the majority’s “Chevron-like” discussion of the deference that should be given to the Special Master’s findings interesting but a bit disturbing in that the Court cited a precedent that those findings “deserve respect and a tacit presumption of correctness.” The Court’s division over today’s decision turned on both the correctness of the findings by the Special Master and whether he had correctly applied the applicable precedents to sufficient findings. A clear disagreement is articulated by the majority and dissenting opinions surrounding the factual evidence related to whether the amount of water that would flow to Florida during drought conditions would ultimately be increased by a cap on Georgia’s water use from the Flint River. The answer to this question turns on the behavior of the Corps in both storing the resulting additional water, then releasing that additional stored water from Lake Seminole during drought conditions.
Interestingly, in addressing Florida’s exceptions to the Master’s evidentiary determinations, the Court discussed the consequences of the United States’ declining to waive sovereign immunity from suit in this case at its outset. An early motion by Georgia to dismiss Florida’s complaint on the grounds that the United States was a necessary party was denied as the Special Master concluded at that time that a decree binding the Corps might not prove necessary. Ultimately, however, the Report of the Special Master was based on the conclusion that a decree binding the Corps was necessary to redress the injury to Florida. The Court’s analysis of the evidence indicated that, since the cap on Georgia’s consumption was upstream of the Corps-operated dam and lake, the cap could effectively result in more water storage and more water that could be released to the Apalachicola River reaching Florida in both non-drought and drought conditions. It also disagreed with the Master’s conclusion that effective relief was rendered impermissibly “uncertain” given the Corps’ revised Master Manual and its documented commitment that it will “work to accommodate any determinations or obligations the Court sets forth if a final decree equitably apportioning the basin’s waters proves justified in this case” and take such a decree into consideration in appropriate operational adjustments to the Master Manual, if applicable.
Again, the Supreme Court stressed that Florida will ultimately be entitled to a decree only if it is shown that “the benefits of the [apportionment] substantially outweigh the harm that might result.”
For those keeping score on certain of these issues and looking for clues as to “life after Kennedy”, Justice Breyer penned the majority opinion, joined by Roberts, Kennedy, Ginsburg and Sotomayor. Justice Thomas wrote the dissent, joined by Alito, Kagan, and Gorsuch.