In their own words: Supreme Court justices ponder Ga./Florida water war
By David Pendered
For almost 66 minutes, U.S. Supreme Court justices on Monday heard lawyers argue over Florida’s complaint that Georgia is to blame for the demise of the oyster fishery in Florida’s Apalachicola Bay.
The format had each justice ask a question of the lawyer for Georgia, and a question of the lawyer for Florida. The proceeding began with a short presentation from the lawyer representing each state.
The following is a direct account of the questions posed by the justices. Some accounts are full, and some are edited for space. The questions may illuminate the outlook of each justice in the case.
Some media accounts have sought to add drama to the arguments, noting, for instance, that justices cited Agatha Christie and Arthur Conan Doyle in their questions. However, the justices’ remarks, by themselves, provide ample drama in a confrontation that pits Georgia’s irrigation practices for the vast croplands in the Flint River basin against Florida’s most significant, and historic, oyster fishery.
A few historic notes to help navigate the justices’ questions: The court has received reports from two special masters, Ralph Lancaster and Paul Kelly, and now is slated to make a final determination; Lancaster recommended that the U.S. Army Corps of Engineers has sole control over water flow into Florida because the corps controls the dams; Kelly recommended that Florida had not proved its case; water flow is measured in cubic feet per second; the court ruled in 1998 that New Jersey owns most of Ellis Island, a matter that had been disputed by New York.
The case involves Florida’s complaint that Georgia uses an undue amount of water from the Apalachicola-Chattahoochee-Flint river system. The shortage of fresh water flowing from Georgia into Florida causes the Apalachicola Bay to become salty enough for predators of oysters to be able to enter the bay and attack oyster beds. The predators don’t enter the bay at lower salinity levels. As a result of the intruding salt water and predators, the Apalachicola Bay has failed as an oyster fishery, according to Florida’s complaint.
Justices are expected to issue a ruling before their term ends June 30. The court could issue a final ruling or, as it has twice in the past, call for further review.
The complete MP3 audio of the arguments and a transcript of the remarks are available here, on the Supreme Court’s website. The transcript is official and subject to final review.
Gregory Garre, for Florida
“[E]ven Special Master Kelly found that Georgia’s consumption only increases in drought periods, when water matters most, that Georgia has not effectively curbed this use, and that there’s no doubt that extreme low flows have occurred much more frequently in recent times. Those findings alone compel the conclusion that Georgia’s unrestrained consumption is unreasonable.”
Craig Primis, for Georgia
“Florida’s petition should be denied for a very basic reason. Simply put, Florida failed to prove its case. … Florida failed to demonstrate that Georgia’s water use caused the oyster collapse. Instead, the record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse. As one Florida official said at the time, they bent their oyster fishery until it broke.”
John Roberts, chief justice
“Mr. Garre, how should we analyze the case if we think based on the record that Georgia contributed to the collapse of the oyster harvest but not enough to cause that on its own, that the situation is like that on ‘Murder on the Orient Express,’ a lot of things took a stab at the fishery: drought, overharvesting, Florida regulatory policies, but also lower salinity that was caused by Georgia’s use of the water. But you can’t say that any one of those things is responsible for – for killing the – the fishery.”
“I’d like to pose to you the same question I did to Mr. Garre. You just said Georgia did not cause Florida’s harms. Even if you’re not a sufficient cause, how do you analyze the case if we conclude the record supports the idea that you were a contributing cause? In other words, are you off the hook if you alone did not cause the harm to the fishery? … Well, we don’t really know what the extent of the remedy would be. That’s what you’re going to decide if the case moves toward equitable apportionment.”
Clarence Thomas, justice
“Mr. Garre, a couple of questions. You – you say that Georgia has influenced the reduction in flow. Could you give us a before and after? You seem to suggest in your – in your briefs that an increase of above 6,000 cubic feet per second would be beneficial to the oyster beds, and – but there’s much discussion about the Corps [U.S. Army Corps of Engineers] limiting the flow to 5,000 square – cubic feet – feet per second during the low flow and drought periods. Could you give us a sense of when there was a flow that was above 5,000 and when did that reduction occur, and what role does the Corps play in the reduction during the drought and dry period being at 5,000?”
“Mr. Primis, the – do you agree that been a reduction in the flow of water into the Apalachicola over the years? … So the – when reading the – Florida’s brief, if I were to entitle it, it would be something along the lines of the case of the disappearing water. And if that is accurate, where do you think it went if Georgia is not the source of that disappearance?”
Stephen Breyer, associate justice
“Well, the part I don’t understand, I mean, you now face two big hurdles. Of course, one is all these – a lot of people testified or some testified, experts, that there was overharvesting of the oysters, and that was the major cause. That’s your basic problem. The other, which I don’t understand too well, which I’d appreciate your clarifying first, I assume your experts went out and they said, this is how much water falls in Georgia or comes into Georgia every year, and we’ll subtract from that the water that evaporates and we end up with a number that they must be using, and that’s a lot. And the other side says, well, let’s go out and measure what they’re actually using. And they went and measured it, and that was a little. And between the two, there’s a lot of disappearing water. Where does it go? And why?”
“Well, I have two questions and one totally irrelevant question. The first was Justice Thomas’s. How can there be these big discrepancies in how you measure this water that’s being used by Georgia? I mean, huge discrepancies. I don’t understand that. Anything you want to say further, fine. And the second is, how can there be these oysters all over the place and they go out and look and there are load — loads of dead oysters all over and they say, well, actually, no, it’s overfishing that caused it all? Well, if you overfish, then you catch them. And my third question, which is absolutely irrelevant, this has been going on for years, and Florida thinks that it wouldn’t cost Georgia much to remedy the situation. Maybe Georgia has a different view. But has anybody ever tried to work out a — that Florida would pay something to Georgia to solve the problem? Has anybody ever tried is only my question there. You don’t have to answer it if you don’t want to, but the first two I’d like to know.”
Samuel Alito, associate justice
“This is about the most fact-bound case that we have heard in recent memory, and we have two comprehensive reports by two outstanding masters and they are not – to put the point perhaps mildly, not entirely consistent on a number of key points. What do we do with that? … To follow up on the point that Justice Breyer was – was exploring, which is the cause of the collapse of the oyster beds, there’s conflicting evidence. You have evidence from Dr. Berrigan and Mr. Ward. The other side has evidence from its expert, Dr. Lipcius. But what about hard scientific evidence about salinity? What is the maximum salinity for healthy oyster beds, what was the salinity in 2012 at the time of the collapse, what is it today, et cetera?”
“If we think there’s some harm to Florida, but the imposition of the decree would cause harm to Georgia, what do we do with – with that data? If it’s just a matter of calculating the dollar value of Georgia agriculture and the Florida oyster and seafood industry, that’s pretty straightforward. But Mr. Garre appropriately mentions that what is at stake is a precious ecosystem. So how do we take that into account? And in answering that, maybe you could answer this – this question: To what degree are these oyster beds a natural phenomenon and to what degree are they a man-made creation? Was something like this present when Ponce de Leon sailed up, or is this something that oyster farmers have created?”
Sonia Sotomayor, associate justice
“Counsel, my biggest problem with your case are three facts, all offered by your experts. First, Dr. Greenblatt modeled that without any water consumption by Georgia, salinity would have changed by one to eight parts per thousand but generally less than five ppts. Then you have Dr. Kimbro, who he relied on, and his experiments show that to see any appreciable effect on predation, you need salinity changes of 5 to 15 ppts. And then you have Dr. White, who predicted that if Georgia had not consumed any water, oyster biomass in 2012 would have been 7 to 10 percent higher. I’m doubtful that a 10 percent change is sufficient to be viewed as an invasion of rights of a serious magnitude. It’s hard to – to imagine how water consumption that at most, by your own experts, contributed less than 10 percent to your problem, to Florida’s problem, how would that justify the use of an equitable remedy?”
“Counsel, you’re talking about taking out agriculture, but your brother on the other side points out that many of the conservation methods are at no cost. So, for example, you’ve made great strides in – in improving irrigation efficiency. I see that in the record. But I also understand that half of Georgia’s irrigation permits impose no limit whatsoever on how much water farmers can draw out of the ground or, once they do, whether they’re overwatering. Now, whether or not 80 percent are not overwatering, there’s still 20 percent that are. There has been a significant proof of more use by the farmers. I’m – I’m just not sure how we can ignore the fact that there are measures that would not be costly that would only require that you do something about your grandfathered permits so that there are limits put in and limits that are related to need rather than open-ended. Why should we ignore that those conservation methods would come at no cost?”
Elena Kagan, associate justice
“Mr. Garre, you said a while ago that Florida would benefit from as little as 500 CFS. And I didn’t get that in your briefs. You know, in your briefs, it didn’t seem to me that you made an argument that less than 1,000 CFS would make any difference in the bay. So where is this 500 coming from? What’s the evidence that you have that 500 CFS would matter?”
“Mr. Primis, I’d like to take you back to your conversation with Justice Thomas about the Corps operations and how we should think about that. I mean, suppose that we had what you think is a different case than this one, but a case where it was clear that Georgia was over-consuming water and it was clear that that – that if that water was able to get down to Florida, Florida would be much benefited. But then suppose that we had no reason to believe that the water would get down to Florida because of the Corps’ operations. How would they think about that kind of case? … So what you’re really saying is that this case could be as bad as it comes and Georgia would still win? In other words, Georgia could be over-consuming with – without any regard to the downstream – the downstream state’s wellbeing and — and Florida could be suffering massive harm, and none of it matters because the Corps is standing in the way?”
Neil Gorsuch, associate justice
“I take it we start from common ground that to succeed, Florida has to show that the benefits of an apportionment decree would substantially outweigh the harm that would result. … Judge Kelly found that the decree would cost about 100 million dollars a year in drought years for Georgia on the one hand and that the entire oyster fishery generates about 6.6 million dollars a year before the collapse. Even — even assuming that Judge Kelly was mistaken by several orders of magnitude, why doesn’t that preclude or at least pose a problem for you? … I – I guess I was trying to get at, I – I accept that there are ecological harms as well, but how – how do we account for those given the dollar-and-cents disparity?”
One of Florida’s complaints is that the two Special Masters seem to have pointed in different directions and that the – the second, Judge Kelly, did not proceed to hold an evidentiary hearing or trial and, procedurally, that there’s a problem here. What – what’s your response to that? … Mr. Garre has suggested an argument today that a change of just 500 cfs would make all the difference in the world. They don’t need a thousand anymore, just 500, and that 500 would impose a more modest burden on Georgia. I’d like to hear your thoughts on that. … Do you accept the premise, though, that there’s no cost to Georgia at 500 cfs?
Brett Kavanaugh, associate justice
“Just picking up on Justice Gorsuch’s line of questioning, what if there would be substantial benefits to Florida of an – an apportionment but also substantial cost to Georgia of doing so? So just assume that: benefits substantial, costs substantial. How in that circumstance could we say that the benefits substantially outweigh the costs if both the costs and the benefits are substantial in – in some way? … How do we then go about doing the – the balancing in that circumstance?”
“I want to pick up on Justice Alito’s question with respect to the balancing and the substantially outweigh test that you articulate. You say that the potential benefits must substantially outweigh the harm and that that needs to be shown by clear and convincing evidence, as I understand your argument. And I think one of the big responses is how do you explain New York versus New Jersey. And that’s certainly in the briefs and again Mr. Garre today has said, well, if you took that analysis and really applied it in the same way that Georgia is articulating here, then New York versus New Jersey would have come out the other way. So I want to hear whatever you have to say about New York versus New Jersey.”
Amy Coney Barrett, associate justice
“I have a question about what showing you’re required to make at this stage about the Corps’ – what role the Corps would have in ensuring that extra water went to Florida even assuming that we impose this cap of 1,000 cubic feet per second. I mean, last time around, the Court said that the Special Master had required too much and too soon, essentially, from you with respect to the proof of what the Corps would do. Specifically, what more have you shown this time around? Because now the other findings that Special Master Lancaster did not make have been made. So have you done anything additional to show what the Corps could do to accommodate? … Okay, Mr. Garre, let me switch gears, and I just want to narrow down what is actually at stake here, what your contentions are. Most of your brief and most of your argument has focused on Georgia’s agricultural uses. So are you abandoning any challenge to municipal use?
“Let me – I want to follow up on – it’s related to this question, but it follows up on one of Justice Alito’s, which was asking you to measure the harm to an ecosystem. So, you know, here you said earlier that the larger state doesn’t always win. And, of course, if we’re looking just at the dollar value of Georgia’s agricultural industry versus the dollar value of Florida’s oyster injury – industry, we would say, you know, as – as Judge Kelly did, let’s just assume those figures were right, that the benefit – the cost to Georgia dwarfs the benefit to Florida. But how do we put a price on – I mean, let’s – let’s imagine – and I know you disagree with this, but let’s just imagine that Georgia could take measures that cost less and help Georgia – help Florida preserve the Apalachicola oysters, how – how do we put a price on an environmental benefit like that?”