U.S. absence from water war a ‘mystery’ to Breyer

By Amanda Reilly | 01/08/2018 04:30 PM EST

The Supreme Court today heard arguments in a case over water rights in the Rio Grande Basin, shown here at the U.S.-Mexico border.

The Supreme Court today heard arguments in a case over water rights in the Rio Grande Basin, shown here at the U.S.-Mexico border. Good Free Photos

Justice Stephen Breyer is perplexed by the Army Corps of Engineers’ refusal to participate in the Supreme Court battle between Florida and Georgia over water in a contested river basin.

At issue in the Apalachicola-Chattahoochee-Flint River Basin is Florida’s contention that Georgia’s excessive water use caused the 2012 collapse of the regional oyster fishery. The Sunshine State has asked the Supreme Court to cap George’s water consumption.

Breyer said today it’s a "mystery" why the government isn’t involved in Florida v. Georgia.

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The Army Corps, he said, is the "most obvious" entity to answer whether Florida would receive more water if the Peach State’s consumption were capped, given the agency’s control over a regional network of dams and reservoirs.

"Why isn’t the United States in this case?" Breyer asked.

The justice’s remarks came at back-to-back oral arguments in two long-running wars over water crossing state lines. Along with the Florida-Georgia dispute, the court also heard arguments in Texas’ complaint alleging that New Mexico has illegally diverted water.

In both cases, justices heard from the states and the federal government on whether they should accept recommendations from court-appointed special masters.

The disputes test the federal role in interstate water wars. But while the government has sought to be a formal party in the Texas-New Mexico dispute, in Florida v. Georgia it has remained on the sidelines, declining to formally intervene (Greenwire, Jan. 5).

The government’s failure to participate was a key reason the special master recommended the Supreme Court deny Florida’s request to place a consumption cap on Georgia.

While "Florida points to real harm and, at the very least, likely misuse of resources by Georgia," there’s no guarantee a cap would result in more water flowing into the Sunshine State, the special master found.

But Breyer, who’s known for drawing up elaborate hypothetical situations during arguments, did so today to show it was likely that at least a "teaspoonful" more water would flow into Florida if Georgia consumption were capped.

Other justices also appeared to agree with Florida that it’s "common sense" that a consumption cap would necessarily mean more water flowing across state lines.

"They’re clearly troubled by the fact that the [special master] report seemed to conclude, sort of contrary to their common sense view of things, that an increase in water in the watershed and a cap on Georgia wouldn’t have any impact on Florida," said John Sheehan, a partner at law firm Michael Best & Friedrich LLP and a former Justice Department attorney who attended today’s arguments.

Burden of proof

But justices also questioned whether Florida had met its burden of proof to show a meaningful amount of water would cross state lines.

Justice Elena Kagan said the state hadn’t presented sufficient evidence to quantify exactly how much water it would receive and whether the ecological benefits to Florida would outweigh the costs to Georgia.

"You’ve got common sense on your side," Kagan said. "But there seems to be a real dearth of evidence."

Both Georgia and the Army Corps, which participated in today’s arguments as an amicus, sought to portray the ACF River Basin as a complex system, with Army Corps operations dependent on whether the region is experiencing drought conditions.

"There’s nothing common sense about the operations in this basin," said Craig Primis, an attorney for Georgia, which opposes the cap.

Edwin Kneedler, a DOJ attorney representing the Army Corps, said the system of dams and reservoirs in the region is "operated as an integrated whole." He deflected questions about whether the corps would release more water to Florida if Georgia’s consumption were capped.

The federal government appeared most concerned about preserving the discretion of the Army Corps in the region: "The court cannot order the Corps of Engineers to take any additional operation," Kneedler said.

A consumption cap on Georgia "will at the very least change the facts on the ground" for the Army Corps, Chief Justice John Roberts said.

The arguments didn’t appear to satisfy Breyer’s concerns about the government’s absence from the case. He pondered whether there was a way for the Supreme Court to require the government to provide material experts and hold a hearing on the issue.

"It’s a serious matter. A lot of people need water," Breyer said. "Is there a way of working that out?"

Texas v. New Mexico and Colorado

Unlike in Florida v. Georgia, the United States has sought to formally intervene in the Texas-New Mexico dispute so it can be a part of whatever decree comes out of the Supreme Court.

The conflict in Texas v. New Mexico and Colorado centers on the 1938 compact approved by Congress to apportion water in the Rio Grande Basin.

Texas says that the compact mandates the diversion of a certain amount of water to New Mexico’s Elephant Butte Reservoir and that it should be allowed to flow from there unimpeded through southern New Mexico into Texas. But Texas says New Mexico is illegally diverting water before it crosses the border.

The special master in the case last year recommended dismissing the U.S. claims under the compact and only allowing the government to bring claims under federal reclamation law.

Ann O’Connell, assistant to the solicitor general at DOJ, said the federal government has several interests at stake in the dispute, even though it wasn’t a signatory to the compact.

"You need the United States to be bound by that decree because we are the entity that releases that water," she said, adding the government is also interested in ensuring it meets its obligations under a 1906 water-sharing treaty with Mexico.

Justices dug into whether the government would have avenues left to guard its federal interests if it weren’t allowed to bring claims under the 1938 compact. They sought to compare the case with past interstate water disputes in which the U.S. government was a party.

Several justices appeared to side with the government that it should be allowed to intervene.

"It seems to be quite simple," Breyer said. "The Constitution foresees that they can intervene."

Justice Neil Gorsuch noted the United States has pre-existing contractual obligations that could be affected by any resolution between the states. "I’m still stuck on this. … Why isn’t that a significant federal interest?" he asked.

The court would be "remiss" to ignore that the United States has an international obligation to provide Mexico with water, Justice Anthony Kennedy warned.

But at least a few justices appeared worried that allowing the United States to intervene in the dispute would open a new door for the federal government to sue states under water compacts.

"I’m concerned about the impact on other compacts," Roberts said.

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