On January 8, 2018, the United States Supreme Court heard oral argument on the decision issued by Special Master Ralph Lancaster in the long-running dispute between Florida and Georgia over the fate of water use in the Apalachicola-Chattahoochee-Flint (ACF) Basin.  The Special Master sided with Georgia, less on the merits than for procedural reasons, finding that Florida had failed to meet its burden of showing how Florida’s proposed remedy of a consumption cap on Georgia would be effective to curb alleged excessive water use by Georgia due to control of impoundments on the Chattahoochee River by the U.S. Army Corps of Engineers (“the Corps”), not a party to the suit.

As the old saying goes, hard cases make bad law, and the justices seemed caught between the merits issues and the procedural requirements typically required of litigants in equitable apportionment proceedings upon which the Special Master relied.  In other cases, the Court has clearly stated that it will not order a state to take actions that will not produce the desired benefits to the complaining state.  During the hour long argument, the justices appeared both concerned and yet frustrated by the divergent points.  Justice Stephen Breyer was mystified by why the Corps was not in the case, saying it was the most obvious source of the question of whether Florida would receive more water if Georgia’s consumption were capped.  Said Breyer, “I don’t know what to do without knowing what the Corps is likely to do.”  Justice Anthony Kennedy seemed to share that concern stating to the Corps’ lawyer who participated in the argument, “You have said you don’t have any stake in the argument about whether more water would help Florida . . . You say, well, whatever you decide, we’ll use our expertise to follow it, but then you don’t tell us what to decide and you’re the experts.”

And yet, despite his evidentiary concerns, Justice Breyer felt that it might be equitable if Georgia shared more water.  Justice Sonia Sotomayor seemed to agree saying that there existed “plenty of evidence on the benefits of additional water.”  Justice Elena Kagan felt that Florida’s position on an equitable need for more water comported with common sense, but questioned whether it had proven its case.  “You’ve got common sense on your side,” Kagan said, “But there seems to be a real dearth of evidence.”  Chief Justice John Roberts seemed less worried about procedural niceties analogizing Florida’s situation to a company pursuing a public bid and alleging discrimination in evaluation.  Said Roberts, “It seems to me it’s asking an awful lot of Florida to have to say:  ‘We know that the Corps is going to change things the way it benefits us’ – instead they just want to say they’re going to make a different decision if they’ve got more water to allocate.”  Seemingly hoping for some middle ground, Justice Ruth Bader Ginsburg inquired, “Can we agree that a cap at the very least would prevent the situation in Florida from getting worse?”

Court watchers handicapping the discourse appeared to suggest that Florida had the upper hand in the oral argument, but it will likely be months before the Court decides whether to uphold, reject, or alter the decision by Special Master Lancaster, or return the case to him with instructions to consider an allocation plan.  Equitable apportionment actions tend not to break along ideological lines for the justices and thus are sometimes more difficult to predict based upon questions at oral argument.   Meanwhile, battles rage on in lower courts over the Corps’ Master Control Manual which is its blueprint for managing water in the ACF Basin.  Although the Supreme Court is a court of last resort, the complexity of the issues in this perennial spring of litigation between the states guarantees that whatever decision the Court ultimately reaches will not be the last word in the matter by far.