State of Florida v. State of Georgia, 062718 FEDSC, 142, Orig

Docket Nº:142, Orig
Judge Panel:BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Ginsburg, and Sotomayor, JJ., joined. Justice Thomas, with whom Justice Alito, Justice Kagan, and Justice Gorsuch join, dissenting.
Case Date:June 27, 2018
Court:United States Supreme Court




No. 142, Orig

United States Supreme Court

June 27, 2018

Argued January 8, 2018


This original action concerns the proper apportionment of water from an interstate river basin. Three rivers form the heart of the Basin. The Chattahoochee and Flint Rivers begin near Atlanta, flow south through Georgia, and ultimately converge at Lake Seminole, just north of Florida, where the Apalachicola River begins and flows 106 miles south into the Gulf of Mexico. In 2013, Florida, the downstream State, sued Georgia, the upstream State, asking the Court to issue a decree equitably apportioning the Basin's waters. The Court agreed to exercise its original jurisdiction and appointed a Special Master. The United States declined to waive its sovereign immunity from suit in the case. After conducting lengthy evidentiary proceedings, the Master submitted a Report recommending that the Court dismiss Florida's complaint. That recommendation, the parties agree, turns on a single issue-namely, whether Florida met its initial burden in respect to redressability. The Master concluded that Florida failed to make the requisite showing because it did not present clear and convincing evidence that its injuries could be redressed by a decree capping Georgia's upstream water consumption if the decree does not also bind the Corps. Florida has filed exceptions to the Master's Report.


1. The Special Master applied too strict a standard in concluding that Florida failed to meet its initial burden of demonstrating that the Court can eventually fashion an effective equitable decree. Pp. 10-18. (a) Where, as here, the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment applies. In this realm, several related but more specific sets of principles guide the Court's review. First, both Georgia and Florida possess "an equal right to make a reasonable use of the waters of the Flint River. United States v. Willow River Power Co., 324 U.S. 499, 505. Second, when confronted with competing claims to interstate water, the Court's "effort always is to secure an equitable apportionment without quibbling over formulas." New Jersey v. New York, 283 U.S. 336, 343. Third, in light of the sovereign status and "equal dignity" of States, a complaining State's burden is "much greater" than the burden ordinarily shouldered by a private party seeking an injunction. Connecticut v. Massachusetts, 282 U.S. 660, 669. Among other things, it must demonstrate, by" 'clear and convincing evidence, '" that it has suffered a" 'threatened invasion of rights'" that is" 'of serious magnitude.'" Washington v. Oregon, 297 U.S. 517, 522. And to the extent the Court has addressed the "initial burden" a State bears in respect to redressability, the Court has said that "it should be clear that [the complaining] State has not merely some technical right, but also a right with a corresponding benefit" as a precondition to any equitable apportionment. Kansas v. Colorado, 206 U.S. 46, 102, 109. An effort to shape a decree cannot be "a vain thing." Foster v. Mansfield, C & L. M. R. Co., 146 U.S. 88, 101. Finally, because equitable apportionment is" 'flexible, '" not "formulaic," this Court will seek to "arrive at a' "just and equitable" apportionment' of an interstate stream" by "consider[ing] 'all relevant factors, '" South Carolina v. North Carolina, 558 U.S. 256, 271, including, inter alia, " 'physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, [and] the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former.'" Colorado v. New Mexico, 459 U.S. 176, 183. Because all relevant factors must be weighed, extensive and specific factual findings are essential for the Court to properly apply the doctrine of equitable apportionment. See Nebraska v. Wyoming, 325 U.S. 589, 618. Pp. 10-15.

(b) The Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. The Master referred to this as a "threshold" showing. But it is "threshold" only in the sense that the Master has not yet determined key remedy-related matters, including the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia's use of Flint River waters. Unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by "clear and convincing" evidence. Rather, the complaining State should have to show that, applying the principles of "flexibility" and "approximation," it is likely to prove possible to fashion such a decree. To require "clear and convincing evidence" about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse. Pp. 15-18.

2. The Court reserves judgment as to the ultimate disposition of this case, addressing here only the narrow "threshold" question the Master addressed below-namely, whether Florida has shown that its "injur[ies can] effectively be redressed by limiting Georgia's consumptive use of water from the Basin without a decree binding the Corps." Report 30-31. Florida has made a legally sufficient showing as to the possibility of fashioning an effective remedial decree. Pp. 18-37. (a) The Report makes several key assumptions. First, the Master assumed Florida has suffered harm as a result of decreased water flow into the Apalachicola River. Second, the Master further assumed that Florida has shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River. Third, the Master assumed that Georgia's inequitable use of the water injured Florida. At this stage of the proceeding and in light of these assumptions, Florida made a sufficient showing that the extra water that would result from its proposed consumption cap would both lead to increased streamflow in Florida's Apalachicola River and significantly redress the economic and ecological harm that Florida has alleged. In addition, the United States has made clear that the Corps will cooperate in helping to implement any determinations and obligations the Court sets forth in a final decree in this case. While the Corps must take account of a variety of circumstances and statutory obligations when it allocates water, it cannot now be said that an effort to shape a decree here will prove "a vain thing," Foster, supra, at 101, since the record indicates that, if necessary and with the help of the United States, the Special Master, and the parties, the Court should be able to fashion a decree. Pp. 20-35.

(b) Further findings, however, are needed on all of these evidentiary issues. Florida will be entitled to a decree only if it is shown that "the benefits of the [apportionment] substantially outweigh the harm that might result." Colorado, 459 U.S., at 187. On remand, before fashioning a remedy, the Special Master must address several evidentiary questions that are assumed or found plausible here. Pp. 35-37. Case remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Ginsburg, and Sotomayor, JJ., joined.



This case concerns the proper apportionment of the water of an interstate river basin. Florida, a downstream State, brought this lawsuit against Georgia, an upstream State, claiming that Georgia has denied it an equitable share of the basin's waters. We found that the dispute lies within our original jurisdiction, and we appointed a Special Master to take evidence and make recommendations.

After lengthy evidentiary proceedings, the Special Master submitted a report in which he recommends that the Court deny Florida's request for relief on the ground that "Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin." Report of Special Master 3. The case is before us on Florida's exceptions to the Special Master's Report.

In light of our examination of the Report and relevant portions of...

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