Note to readers: This is part III of a series on the conflict for the waters of the Apalachicola-Chattahoochee-Flint (ACF) river system. Alabama, Florida, and Georgia have been fighting over their allotments of ACF water since 1990. If you haven’t already read them, I suggest you begin with Part I and Part II of my Apalachicola River series in which I describe the ecological and historical context for understanding the April 2021 decision by the U.S. Supreme Court on Florida v. Georgia.
The news was disappointing. But after reading the U.S. Supreme Court’s unanimous opinion on Florida v. Georgia (April 1, 2021), it was clear that Florida didn’t stand a chance.
I hadn’t been rooting for Florida, despite my affection for my birth state. Nor was I rooting for Georgia.
Instead, like many others disappointed by the 30+ years of interstate conflict over the waters of the Apalachicola-Chattahoochee-Flint (ACF) River basin, I was rooting for the river and the people whose lifeways depend its health. Florida’s suit against Georgia offered a possibility that the High Court would require Georgia, Florida, and Alabama to work out a reasonable approach to managing the ACF, one of the most ecologically and economically important watersheds in the eastern U.S.
According to Justice Amy Coney Barrett who wrote the majority opinion for the court, the evidentiary bar is quite high for any state seeking to prove harm done by another state. For SCOTUS to have ordered Georgia to curb its use of irrigation water, Florida would have had to demonstrate with “clear and convincing evidence” that the harm it had suffered—especially the 2012 collapse of Apalachicola Bay’s oyster fishery—had been caused by Georgia’s overuse of water during the 2011-2012 drought.
In the high court’s opinion, Florida didn’t present a convincing case. No one disputes that the Apalachicola Bay oyster fishery collapsed. But Florida didn’t demonstrate a chain of causality between the fishery’s collapse and water withdrawn upstream by Georgia’s farmers. As Justice Barrett noted, Florida allowed “unprecedented levels of oyster harvesting” in the years prior to the collapse of the fishery. Furthermore, Florida’s witnesses could not rule out additional or alternative causes for the collapse of the fishery, including climate change and the U.S. Army Corps of Engineers’ handling of water flows in the Chattahoochee River. So, while the overall body of evidence convinces many that Georgia had a hand in the fishery’s collapse, this was not enough for the High Court. Perhaps Justice Barrett should have quoted one of science’s most famous tough-love axioms: correlation is not causation.
Florida would have had a stronger case if it had invested more in watershed science. We have the technology and expertise to determine with precision and confidence how water inputs and outtakes contribute to a river’s flow and ecological health. But Florida’s citizenry has elected republican governors since 1999 who have limited the scope and ability of state government. The state’s Department of Environmental Protection (DEP) and Florida’s five water management districts have suffered huge budget cuts over this time, especially during the two terms of Gov. Rick Scott. Despite some recent budget increases under Gov. Ron DeSantis, funding for Florida’s DEP is about as much as it was 15 years ago. Meanwhile, over that same interval the state’s population has grown by over 3 million and climate change has begun slamming the state hard with algal blooms, bigger hurricanes, and sea level rise.
There was a lot of celebratory backslapping in Georgia after the SCOTUS ruling. But celebrants did not include those who understand the urgency of managing the ACF wisely. Most would agree that Georgia didn’t win, Georgia dodged a bullet.
Georgia still faces daunting water supply and management problems that threaten its economic and ecological future. The Atlanta Metropolitan Area continues to grow but lacks the groundwater and surface water resources to sustain this growth. And although the state requires permits for farmers who extract and use surface water and groundwater, Georgia essentially allows unlimited groundwater use—a textbook example of the tragedy of the commons. Georgia’s day of water reckoning is well overdue.
The only real winners in the outcome of Florida v. Georgia were the attorneys. Legal fees for both states totaled $170 million. Imagine if that money had instead been spent to promote science, conservation, and resilience in the ACF watershed!
You and I are the latest witnesses to a multidecadal dysfunction in governance, one that is permanently disfiguring one of the Southeast’s wildest remaining ecosystems and the communities depending on it.
But it is far too soon to give up hope. As I learned from listening to those who are working for a long-term solution, the U.S. Supreme Court’s decision may have opened the door for a fair and reasonable approach to managing the ACF. In part IV of this series, I’ll tell you about this opportunity and explain how you can help.
LEARN MORE:
Read the opinion on Florida v. Georgia written by Justice Barrett. The language isn’t technical and it will reveal a lot about how SCOTUS reached their unanimous decision.
Read this analysis of the decision by Lara Fowler at the SCOTUSblog. It’s a great article that helps put the case and the court’s decision in context.