- By Scott Moore
Earlier this month, the U.S. Supreme Court tried to end not one but two interstate water wars. One, between Texas, New Mexico, and Colorado, argues that New Mexico has violated a 1938 agreement by over-pumping groundwater, while the other, between Florida and Georgia, argues that Georgia’s breakneck development has slowed the flow of water to its downstream neighbor. The common theme is that as climate change and economic growth put more pressure on America’s water supplies, states are increasingly fighting one another, for now before the Supreme Court. But unless Washington and the states find a better way to settle these disputes, America’s water wars may come full boil.
America is no stranger to water conflict. A long-running dispute between California, Arizona, and five other states over the Colorado River began in the 1920s, and tensions remain between them even today. But over the past decade, growing demand and shifting water availability have made states far more eager to fight their neighbors in court over shared supplies of water. For Texas and New Mexico, the conflict stems primarily from prolonged drought, which has led to diminished streamflow and forced farmers to rely more on groundwater. The roots of the Florida-Georgia conflict, meanwhile, lie in the explosive growth of the Atlanta metro area, which has placed greater pressure on the Apalachicola-Chattahoochee-Flint river basin that Georgia shares with Florida. In 2014, the state of Florida filed a lawsuit against Georgia charging that its upstream neighbor’s increasing water use was devastating its economically significant oyster industry.
Yet despite the rush to the courtroom in both the southwest and the southeast, lawsuits tend to be an expensive and ineffective way to settle water conflicts. The Florida-Georgia suit, in particular, has cost both states dearly – Florida spent over $40 million in 2016, while Georgia spent some $20 million, and when all is said and done the total cost of litigation is likely to be several times that amount.
As if those eye-watering sums weren’t reason enough to consider a different path, many past Supreme Court decisions have failed to actually resolve interstate water disputes. When the Supreme Court hears interstate equitable apportionment claims, it does so on the assumption that states are effectively suing on behalf of their citizens. This legal wrinkle creates several barriers to reaching final verdicts.
For one thing, it means that the Court considers state water law, which can be very different and create vastly different implications for water users, in its decisions. For another, it means that the Court is reluctant to try to determine what a final, fair division of water between states should be. As a result, Supreme Court decisions rarely actually resolve interstate water disputes.
This month’s arguments between Florida and Georgia show how difficult it is to get the Court to address the underlying reason for conflict between the two states. Both states’ arguments before the Court emphasized the effect of limiting Georgia’s water consumption, which Florida has called for as a way to ensure the health of Apalachicola Bay. The justices focused intently on whether this step would actually restore Florida’s oyster industry, and the concern appeared to be bipartisan. Obama appointee Justice Elana Kagan challenged Florida’s attorney to produce “any evidence to show that they’re going to get enough water as a result of [the] consumption caps,” while Trump appointee Justice Neil Gorsuch appeared to question whether the “benefits” of imposing consumption caps on Georgia “significantly outweigh the harms.” But the justices appeared equally skeptical of Georgia’s claim that limiting the state’s water use would do no nothing to help Florida. The final decision is likely to depend on the justices’ belief in “redressability” – whether imposing water consumption caps on Georgia will, in fact, help restore Florida’s oyster industry.
But regardless of which way the Court rules, the loser is likely to keep fighting. For Georgia, sustaining Atlanta’s rapid growth looks like a cause worth fighting for, while in Florida, politicians have campaigned on the charge that “Georgia is stealing our water” – making it unlikely they’ll back down.
There is a better way. Instead of fighting it out in the courtroom, the two states should agree to create a joint commission, along with the U.S. Army Corps of Engineers, which is responsible for operating key reservoirs that control water flow into Florida. This commission would be responsible for developing a plan to ensure that Florida gets enough water to maintain its oyster industry and preserve the environment – without capping Georgia’s water use. To be sure, maintaining this plan would require tough decisions to be made, especially in times of drought. But paired with commonsense actions like encouraging the use of water-saving appliances, a joint plan can help balance the water needs of both Florida and Georgia. Even if the Supreme Court eventually rules in Georgia’s favor, the state is likely to find that cooperation is a lot cheaper than conflict over water.