Florida v. Georgia

MUST FLORIDA SHOW “CLEAR AND CONVICING EVIDENCE” OF REDRESSIBILITY OR IS IT SUFFICIENT FOR IT TO SHOW A REASONABLE LIKELIHOOD OF REDRESSIBLITY?

Florida argues that the Special Master incorrectly required Florida to show clear and convincing evidence that a decree will redress its injury. Florida contends that the clear and convincing evidence requirement applies to a showing of injury rather than a showing of redressability, and that the Supreme Court has never required an injured State to establish redressability through clear and convincing evidence. Florida notes that the Special Master found that Florida proved substantial injury through clear and convincing evidence and therefore it has met the redressability requirement. Florida asserts that once it met the redressability requirement, the Court will invoke its original jurisdiction and the Court will settle the dispute in a manner that recognizes the equal rights of both States. Florida notes that the Special Master correctly concluded that Florida has sustained a real and substantial injury from Georgia’s unreasonable consumption of water, but incorrectly held that Florida must show that a decree by the Supreme Court is guaranteed to work. Florida contends that the Supreme Court does not need to be certain that its decree will fully redress Florida’s injury; a reasonable likelihood of the fact suffices. The Supreme Court, according to Florida, has also consistently held that Article III of the Constitution only requires a plaintiff to show a likelihood of at least partial redress.

Georgia argues that the Special Master correctly applied the clear-and-convincing-evidence standard. The Supreme Court, according to Georgia, has held that the clear-and-convincing-evidence standard is not limited to the proof of injury inquiry in equitable apportionment cases, and thus Florida must provide clear and convincing evidence that a decree is highly probable to redress its alleged injuries. Georgia asserts that the reasonable predictions must be accompanied by supporting evidence that they are likely to occur and that the Court will not issue a decree if relief is uncertain. Georgia notes that the Special Master applied the correct legal standard when he held that, after a long discovery period and trial, Florida did not meet its burden of proof to establish the redressability requirement. Georgia argues that Florida failed to establish the redressability requirement because it did not show that its reasonable predictions that a decree solely against Georgia would necessarily result in additional water reaching Florida. Georgia also notes that the Special Master did not require Florida to show that a decree is guaranteed to work, but rather he used to word to denote that the Corps’ impact on water flows in the ACF Basin would make redress merely speculative and uncertain.

WILL A CONSUMPTION CAP EFFECTIVELY REDRESS FLORIDA’S INJURY?

Florida argues that even if the Supreme Court adopts the Special Master’s incorrect standard to provide redressability, the Court may still grant Florida relief in this case by imposing a consumption cap. First, Florida contends the mere chance that the Army Corps could offset or frustrate the benefits of a decree mandating a reduction in Georgia’s water consumption is irrelevant to the redressability analysis. Florida notes that the Supreme Court has held that the impact of an independent third party, like the Army Corps, is only material to the redressability analysis if the redress requires action by that third party. Florida contends that that is not the case here because the Army Corps’ involvement is not necessary to achieve effective redress from Georgia. That is, Florida asserts, that capping Georgia’s overconsumption of water upstream will flow into Florida without any action by the Army Corps.

Second, Florida argues that even if the Army Corps’ impact is relevant to the redressability analysis, the evidence suggests that the Army Corps’ conduct will likely aid rather than offset or frustrate a decree by the Supreme Court. Florida notes that the Army Corps’ rules mandate that it release at least an established minimum flow amount, but it may release even more than that required minimum. In fact, according to Florida, the Army Corps has released more than the required minimum in the past when excess water was available. Florida also contends that the Army Corps and the U.S. government have expressed a willingness to accommodate and comply with a decree issued by the Supreme Court. Thus, Florida asserts that is has shown a likelihood that a decree will redress the substantial injury.

Third, Florida argues that a decree will likely redress the substantial injury even if the Army Corps retains excess water upstream. Florida contends that a greater amount of water left unconsumed by Georgia due to a consumption cap will lead to a greater amount of water reaching Florida. Florida concludes by noting that the Special Master failed to consider the ways in which a consumption cap would result in more water in the ACF Basin, which in turn would necessarily yield benefits for Florida independent of the Army Corps’ actions. And at the very least, according to Florida, it would prevent the injury from worsening.

In response, Georgia first argues that the Special Master correctly concluded that Florida did not demonstrate that a consumption cap will offer effective relief. Georgia asserts that the Special Master correctly considered the role of the Army Corps in its redressability analysis because the equitable balancing process entails consideration of obstacles that hinder effective redress. Georgia argues that the Supreme Court has ruled that if some obstacle or third party will frustrate effective redress, equitable relief is likely inappropriate. Effective relief in this case, according to Georgia, is contingent upon an alteration of the Army Corps’ rules and practices.

Georgia then contends that the Special Master correctly concluded that the Army Corps generally offsets increased flow from the Flint River into Lake Seminole by reducing reservoir releases from the Apalachicola River into Lake Seminole. Georgia notes that the U.S. government describes exactly this practice in its post-trial amicus brief. Georgia also contends that U.S. Geological Survey data for the two rivers as well as the Army Corps’ official Reservoir Simulation model confirm the offset. Thus, according to Georgia, a consumption cap resulting in an elevated streamflow in the Flint River will not necessarily result in an elevated streamflow into Florida. Georgia further asserts that the U.S. government states in its brief that the Army Corps will likely not release more than the minimum during drought periods.

Georgia finally argues that Florida’s own expert witnesses testified that increased flows from Georgia are not correlated with a corresponding increase in flows into Florida. Georgia notes that Florida’s own witnesses testified that the Army Corps would need to be involved to effectively increase stream flows into Florida. Georgia also contends that the Special Master correctly held that Florida failed to prove any material redress from a consumption cap not only during drought periods but also during normal and wet periods without coordination with the Army Corps.

DO EQUITABLE CONSIDERATIONS FAVOR FLORIDA?

Florida argues that the Special Master ignored principles of equity when he required Florida to guarantee that the decree would guarantee redress. Florida contends that in equitable apportionment cases, the Supreme Court will give due consideration to “broad and flexible equitable concerns” instead of “hard and fast rules.” Florida further asserts that the Special Master correctly concluded that Georgia is inflicting real harm on Florida and that equity demands a remedy. Florida finally asserts that the Special Master’s recommendation would have the Supreme Court relinquish its constitutional duty to adjudicate disputes between States.

Georgia argues that the principles of equity actually favor the Special Master’s recommendation. Georgia contends that the Supreme Court will not grant relief where the plaintiffs has not proven that the relief will effectively redress the alleged harm. Georgia also asserts that the Special Master did not conclude that Florida suffered injury and that the Special Master explicitly did not reach that issue. Georgia finally notes that this case is not Florida’s “last remaining, legal remedy” because Florida may partake in the administrative process of altering the Army Corps’ rules and practices or bring a case in federal court involving the Army Corps.