In an April 1, 2021 ruling, the U.S. Supreme Court overruled Florida’s exceptions to the decision of Special Master Judge Paul Kelly in its long-running dispute with Georgia over the use of water in the Apalachicola-Chattahoochee-Flint (ACF) river basin. The oral argument in the case, held February 22, 2021, seemed to point to several open questions where the justices could have made new law or clarified the tests associated with an equitable apportionment action. However, in the end, it came down to just the content of the evidentiary record, which was not in Florida’s favor, especially with the application of heightened standards of review.
In 2013, Florida brought this original action against Georgia, seeking an equitable apportionment of the basin waters. The Supreme Court referred the case to Special Master Ralph Lancaster, Jr. After 18 months of extensive discovery and a five-week trial, the special master issued a report recommending that Florida be denied relief. Although the special master assumed for the sake of his analysis that Florida had suffered a serious injury due to Georgia’s upstream water use, he determined that it was unnecessary to make definitive findings on those issues because Florida failed to prove by clear and convincing evidence that any remedy would solve its asserted injuries. Florida appealed. On review of Florida’s exceptions, the Supreme Court remanded the case for further proceedings, concluding that the special master’s clear and convincing evidence standard for the “‘threshold’” question of redressability was “too strict.” The Court directed the special master to make definitive findings and recommendations on several additional issues, including whether Florida had proved any serious injury caused by Georgia; the extent to which reducing Georgia’s water consumption would increase Apalachicola River flows; and the extent to which any increased Apalachicola flows would redress Florida’s injuries. Special Master Lancaster retired shortly after this ruling, and Judge Paul Kelly of the Tenth Circuit was appointed. Special Master Kelly issued an 81-page report recommending that the Court deny Florida relief. The special master concluded 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. Florida filed exceptions to this ruling and further briefing and oral argument ensued.
At oral argument, several themes emerged that could have broken new ground. They included: (1) Chief Justice John Roberts’ concern over how to weigh multiple causes in relation to the substantial injury test; (2) what must the Court do with the conflicting evidentiary findings of Special Masters Ralph Lancaster and Judge Kelly on the question of harm; (3) how is this case distinguishable from New Jersey v. New York, 283 U.S. 336 (1931); (4) whether a cost/benefit analysis must accommodate some value to environmental resources independent of the raw dollar value; and (5) whether the U.S. Army Corps of Engineers, as an independent nonparty, must be factored into whether relief can be meaningful.
In rejecting Florida’s position, the Court focused on the evidentiary record developed before the special master. The parties offered competing explanations for the cause of the oyster fishery collapse. Florida blamed the collapse on Georgia through a multistep causal chain. It said that Georgia’s unreasonable agricultural water consumption caused sustained low flows in the Apalachicola River; that these low flows increased the bay’s salinity; and that higher salinity in the bay attracted droves of saltwater oyster predators and disease, ultimately decimating the oyster population. Georgia pointed to a more direct cause — Florida’s mismanagement of its oyster fisheries. Though refusing to wade into the scientific debate as to the precise cause, the Court looked to the evidence that Florida had presented in support of its position. Florida’s own documents and witnesses showed that Florida allowed unprecedented levels of oyster harvesting in the years before the collapse. The record also shows that Florida failed to adequately re-shell its oyster bars. The fundamental problem with Florida’s evidence — a problem the Court found problematic with Florida’s entire case — was 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. None of Florida’s witnesses or reports point to Georgia’s overconsumption as a significant cause of the high salinity and predation. On this record, the Court found that Florida had not shown that it is “highly probable” that Georgia’s alleged overconsumption played more than a trivial role in the collapse of Florida’s oyster fisheries.
Turning to the species issues, the Court similarly found the record lacking, and Florida failed to meet its “heavy burden.” Florida said that Georgia’s overconsumption had harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River, thereby drying out important habitats for river species. The Court noted that Florida’s expert failed to show that his harm metrics did or likely would translate into real-world harm to the species that he studied and that he had provided no data showing that the overall population of any river species had declined in recent years. The Court also recognized that other evidence cast significant doubt on the expert’s harm metrics. Without stronger evidence of actual past or threatened harm to species in the Apalachicola River, the Court held that it could not find it “highly probable” that these species had suffered serious injury, let alone as a result of any overconsumption by Georgia.
Based upon the foregoing, the Court overruled Florida’s exceptions and dismissed the case, noting only that “We emphasize that Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource.” While dispositive of this case, the ruling does not supplant the Corps of Engineers’ policies regarding water usage and storage along the Chattahoochee River, which may affect flows during drought conditions.