Applying New International Principles of Transboundary Water Allocation to Florida v. Georgia's Doctrine of Equitable Apportionment.

Author:Holden, Elizabeth
 
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TABLE OF CONTENTS I. INTRODUCTION 1099 II. BACKGROUND: THE HISTORY AND PRINCIPLES OF WATER LAW 1101 A. Historic Approaches to Interstate Water Disputes in 1102 International Law 1. International Regulation of Boundary Disputes Over 1102 Water 2. International Principles Applying to Disputes Over 1104 Water Usage B. Historic Approaches to Interstate Water Disputes in the 1107 United States 1. Water Regulation in the United States 1108 2. Principles for Water Dispute Resolution in the 1109 United States a. Riparianism and Prior Appropriation 1110 b. Equitable Apportionment in United States Case Law 1111 III. NEW DEVELOPMENTS IN WATER LAW: MODERN INTERNATIONAL 1115 PRINCIPLES AND FLORIDA V. GEORGIA A. New Trends in International Water Law 1116 1. Emphasis on Humanitarian Consequences 1116 2. Applying Intergenerational Needs to Water Apportionment 1118 a. Moral Concerns 1119 b. Economic Concerns 1120 c. Ecosystem Goods and Services 1120 3. Legal Rights for Bodies of Water 1122 4. Equitable Procedures 1123 B. New American Developments: Florida v. Georgia 1123 1. The ACF River Basin 1124 2. Equitable Factors Considered in Florida v. Georgia 1124 3. Justice Thomas's Dissent and the Balance-of-Harms Test 1125 4. Analysis 1126 IV. APPLICATION OF NEW INTERNATIONAL PRINCIPLES TO THE AMERICAN 1127 DOCTRINE OF EQUITABLE APPORTIONMENT A. Equitable Procedures 1127 B. Legal Rights of Waterways 1128 C. Intergenerational Principles 1129 1. Ecosystem Services as an Economic Consideration 1129 2. Long-term Economic Consequences of Ecosystem Services 1130 D. Humanitarian Concerns and the Human Right to Water 1131 V. CONCLUSION 1133 I. INTRODUCTION

In 2018, Georgia revisited a centuries-old dispute with Tennessee over its border line. (1) Georgia claims that because of an error by mapmakers in an 1818 survey, Georgia's border arbitrarily lost land to Tennessee. (2) Now Georgia wants that land back. (3) This border dispute is not grounded in a need for land, but rather in a need for water: a mile and a half from Georgia's current border-line is the Tennessee River, and Atlanta's demand for water would be met if Georgia were able to build a pipeline to the river. (4)

Meanwhile, in August of 2018, the Supreme Court remanded demands by Florida for an equitable apportionment of water in Florida v. Georgia. (5) Florida sued Georgia after Georgia increased its water usage of the Apalachicola-Chattahoochee-Flint (ACF) River Basin, simultaneously limiting the amount of freshwater flowing to Alabama and Florida. (6) The Supreme Court determined that Florida's injury by Georgia is redressable, and remanded the case to a special master who will make further determinations using factors enumerated by the court under the doctrine of equitable apportionment. (7)

However, the current United States usage of equitable apportionment allocates water based on factors that weigh immediate costs and benefits; this usage does not sufficiently address long-term climatic concerns. (8) International law can fill this gap. International legal principles can both inform the Supreme Court's approach to analyzing state water disputes and provide a valuable perspective for American states embroiled in conflicts over water. (9) Over two hundred watersheds are shared by two or more countries, while over three thousand watercourse (10) treaties exist, providing a plethora of examples for the United States to draw from. (11) And certain more recently developed international principles for addressing interstate water disputes are of value for the US federal court system. (12) Specifically, humanitarian factors and intergenerational interests (13) should be considered when weighing the equitable apportionment of water resources among states. (14) If the international principles were applied on remand in Florida v. Georgia, humanitarian, economic, and ecological concerns might be mitigated to a greater degree.

This Note outlines the history of international and American legal principles for transboundary disputes over freshwater resources. Part II discusses the major international and American approaches. Part III considers how Florida v. Georgia furthers the principle of equitable apportionment in the United States. Finally, Part IV considers how newly developed international principles can be adopted by US courts, with a focus on specifying additional factors useful in weighing equitable apportionment, including intergenerational economic concerns, ecological interests, and humanitarian concerns. This Note ultimately concludes that the resolution of interstate water disputes--such as that of Florida v. Georgia--would more adequately address long-term distribution concerns if humanitarian issues and intergenerational interests were included in the balancing factors used to equitably apportion transboundary waterways. (15)

  1. BACKGROUND: THE HISTORY AND PRINCIPLES OF WATER LAW

    The global demand for water increased by 600 percent over the last century, even though the human population only tripled during the same period. (16) Today, fresh water is used in a plurality of ways: land irrigation (composing 70 percent of global usage), industrial and urban use, energy production, navigation, human uses, and leisure. (17)

    Yet there is a finite amount of fresh water available. (18) The earth's continuous water cycle has rotated fresh water around the globe for millions of years, but global warming may lead to increased reservoir amounts in some areas, further depleting water supplies in already water-deprived areas, and heightening extreme weather patterns. (19) In countries like India, plans are in motion to divert whole segments of rivers to drought-ridden areas. (20) Likewise, human activity can negatively impact water supplies. (21) For example, toxic substances move downstream, and air pollution causes toxic rain, polluting drinking-water supplies. (22)

    These changes affect the United States: one report by the U.S. Government Accountability Office suggests that forty out of fifty states will have regions facing water shortages in the next decade. (23) And 1.6 million Americans do not have sufficient access to water because of droughts, fresh water mismanagement, and pollution concerns. (24) The Southeast in particular is experiencing heightened disputes due to increased demand from economic growth and shifting water supplies. (25)

    Historic international approaches to interstate water disputes provide a framework for the United States to address growing domestic conflicts over water. International approaches include the absolute right to water through territorial sovereignty, the "no harm" doctrine, and the principle of equitably apportionment. (26) In contrast, courts in the United States focus primarily on equitable apportionment to resolve disputes, although jurisdictions divide over using riparianism or prior apportionment in the East and West, respectively. (27) This Part considers these international and domestic approaches.

    1. Historic Approaches to Interstate Water Disputes in International Law

      Around the world, roughly 280 transboundary watercourses supply 40 percent of the global population, and "180 run through two States, while the remaining 100 cross three or more States." (28) These transboundary watercourses are often divided by principles of sovereignty and equitable apportionment using both hard and soft law. (29)

      1. International Regulation of Boundary Disputes Over Water

        Treaties between riparian states often address international water disputes. (30) Such treaties, along with dispute resolution at the International Court of Justice (ICJ), are the two common ways that foreign countries handle disputes. (31) Many treaties set specific waterways as boundaries between states, but, even when they do not, the waterways can serve as reference points for territorial delimitation if a river passes through multiple states. (32) For example, the ICJ considered a boundary delimitation dispute in Frontier Dispute (Burkina Fasol/Niger), Judgment of 16 April 2013. (33) In that case, the ICJ based its recommendation of boundary delimitations on the basic needs of certain villages--the ICJ met the needs of the different villages by putting the delimitations in the middle of the river, not on its banks. (34)

        However, many international watercourses are not covered by treaties or are only partially covered through certain treaty provisions. (35) Some riparian states choose not to participate in water treaties. (36) Instead, broader conventions defining governing principles are adopted by some states, including the 1966 Rules on the Uses of the Water of International Rivers (Helsinki Rules), the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992 Helsinki Convention), and the 1997 United Nations (UN) Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention). (37) The International Law Commission also provides useful commentary on how international laws should be developed and applied. (38)

        First, the Helsinki Rules of 1966 were developed for both navigational and non-navigational water uses. (39) Written by the International Law Association (ILA), these rules responded to the twentieth century's growing demands for fresh water to provide for irrigation, industry, and recreation; the rules focus on "use, sharing, and management of international watercourses." (40)

        In contrast, the 1992 Helsinki Convention is a regional instrument, setting a framework for more specific interstate water disputes in the European region. (41) The 1992 Helsinki Convention uses several definitions that are broader than those of the UN Watercourses Convention (discussed below). (42) For example, the 1992 Helsinki Convention also defines transboundary waters in a broad manner to cover both surface and groundwaters and both "confined" and "unconfined" aquifers. (43)

        Finally...

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