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.
Scott Moore is a senior fellow at the University of Pennsylvania Kleinman Center for Energy Policy, where he studies climate change. His forthcoming book, “Subnational Hydropolitics,” looks at the causes and consequences of water conflict within countries.