Interstate Allocation of Rivers Before the United States Supreme Court: the Apalachicola-chattahoochee-flint River System

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 21 No. 2

Interstate Allocation of Rivers Before the United States Supreme Court: The Apalachicola-Chattahoochee-Flint River System

Douglas L. Grant

Introduction

The Apalachicola-Chattahoochee-Flint ("ACF") River System encompasses parts of Georgia, Alabama, and Florida. [1] The Chattahoochee River originates in north-central Georgia and flows southwest through Atlanta to the Alabama-Georgia border where it turns south and forms the southern half of the border between those states and a small part of the border between Florida and Georgia.[2] The Flint River begins south of Atlanta, flows southeast, and then flows southwest until it joins the Chattahoochee River in the southwest corner of Georgia.[3] The two rivers combine to become the Apalachicola River, which flows south through the Florida panhandle and empties into Apalachicola Bay.[4]

The three states have been at odds over water allocation from the ACF River System for nearly two decades. [5] The main cause of tension is Georgia's desire to obtain more water for municipal and industrial use in the rapidly growing metropolitan Atlanta area.[6] Buford Dam, a United States Army Corps of Engineers structure that forms Lake Lanier, is north of Atlanta on the Chattahoochee River.[7] Lake Lanier is the major source of water for the Atlanta area.[8] Georgia would like to secure additional water from Lake Lanier and the Chattahoochee River for the anticipated growth of that area.[9] As downstream states, Alabama and Florida worry that increased water use in the Atlanta area would adversely affect them.[10] Alabama fears interference with its own growth.[11] Florida fears ecological damage to the Apalachicola Bay Estuary and economic harm to the oyster, crab, and finfish industries the Estuary supports.[12]

In 1997, the three states entered into the ACF River Basin Compact that called for them to negotiate an allocation of the ACF River System.[13] As extended negotiations drew to a close, Georgia and Alabama sought to address Florida's ecological and economic fears by proposing to guarantee a minimum flow for the Apalachicola River. [14] Florida rejected the proposal on the ground that the health of its estuary requires fluctuating natural flow conditions rather than maintenance of a minimum flow. [15] Negotiations under the compact expired on August 31, 2003 with Florida threatening to sue in the United States Supreme Court for an equitable apportionment of the ACF River System.[16] While a suit has not materialized, it remains a serious possibility.

This Article examines the prospect of Supreme Court apportionment of the ACF River System. After a brief overview of equitable apportionment doctrine, this Article focuses on two central questions to apportionment litigation for this River System. First, what barriers exist to getting an apportionment from the Court? Second, if the case moves past these barriers, what factors will the Court consider, and how will it weigh them when making the apportionment? This Article shows that there is no assurance that the Court will provide an apportionment, and if it does, the terms could be unpredictable. In light of these uncertainties, this Article recommends that the states redouble their efforts to negotiate an allocation—if not before apportionment litigation begins, then during the course of it.

I. Introduction to Equitable Apportionment by the Supreme Court

The Supreme Court has original and exclusive jurisdiction over suits between states;[17] therefore, it is the only court that can hear equitable apportionment litigation between states.[18] The Supreme Court customarily appoints a special master to conduct necessary pretrial and trial proceedings and to make recommendations on how to resolve the issues.[19]

Litigating states stand before the Supreme Court on equal footing—no state can impose its law on another, and no state has to yield to another's law.[20] Consequently, the Court applies federal common law to determine each state's share.[21] The foundational common law principle, which the Court invoked in its first interstate water allocation case, is that there must be an "equitable apportionment of benefits between the . . . States resulting from the flow of the river."[22] Although the Court may frame a decree to allocate stream flow, the underlying objective is to equitably apportion the benefits resulting from the flow.[23]

States have asked the Supreme Court to apportion eight interstate rivers.[24] The Court has entered apportionment decrees for three of them.[25] Although the body of case law on equitable apportionment is not large, it clearly establishes barriers that a state must overcome to obtain an apportionment decree. It also illuminates the factors that the Court considers relevant when making an apportionment and sheds light on how the Court weighs competing factors.

II. Barriers to Equitable Apportionment

A state may be unable to obtain an equitable apportionment decree for any one of several reasons. The Court might refuse to allow a state to file its complaint seeking apportionment.[26] If the Court accepts a complaint, the suit might fail because the United States is an indispensable party but may refuse to participate, and sovereign immunity precludes a state from joining the United States involuntarily.[27] A suit might also fail if the Court concludes that Congress has already made an interstate allocation that leaves no room for application of the federal common law doctrine of equitable apportionment.[28] Finally, a suit might fail if the state seeking apportionment cannot prove a serious invasion of its right to an equitable share of benefits from the stream flow.[29]

A. The Need for Permission to File a Complaint

1. Historically

A state cannot sue another state by simply filing a complaint in the Supreme Court.[30] The state must first file a motion for leave to file its complaint.[31] The state may include a supporting brief, and a state targeted as a defendant may file a brief in opposition.[32]

The Supreme Court imposes "prudential and equitable limitations" on exercising its jurisdiction over suits between states. [33] The Court looks at two factors when deciding whether to accept these suits. The first is the seriousness and dignity of the complaining state's interest.[34] The Court has regularly accepted complaints in interstate water apportionment cases, so these disputes generally are of sufficient seriousness and dignity.

The second factor is the availability of an alternative forum for resolving the matter.[35] This factor may explain the Supreme Court's denial of two motions by South Dakota for leave to sue Nebraska, Iowa, and Missouri regarding allocation of the Missouri River.[36] South Dakota was not seeking a federal common law equitable apportionment but argued instead that federal flood control legislation implicitly allocated the River between the upper and lower basin states.[37] The Court gave no explanation for denying South Dakota's motions, but one commentator has suggested the probable reason was that South Dakota's "basic controversy was with the United States" over the operation of federal dams on the Missouri River and that it was already in litigation in a federal district court.[38] In other words, an alternative forum was available.

2. The ACF River System

The Court might use this rationale to deny a motion by Florida for an equitable apportionment of the ACF River System. The United States Army Corps of Engineers ("Corps") has several water projects on the Chattahoochee River that affect downstream flows in the System, including the Lake Lanier project. [39] Lower federal court litigation between the Corps and basin states regarding Georgia's efforts to obtain more water from Lake Lanier for the Atlanta area goes back to 1990 [40] and continues today in different lower federal courts.[41] A key issue in the pending cases is whether the federal legislation for the Lake Lanier project allows the Corps to reallocate water from navigation, flood control, and hydroelectric power purposes to municipal and industrial use.[42] Conceivably, the Supreme Court might regard the ACF Basin dispute as essentially a matter between Georgia and the United States regarding the operation of federal dams on the ACF River System rather than a matter between Georgia and the other basin states.

Of course, the other basin states also have interests in the operation of the federal dams in Georgia, but that does not necessarily put the matter within the Supreme Court's exclusive jurisdiction of suits between states. The Eleventh Circuit allowed Florida to intervene in Georgia's litigation against the Corps because it decided that Florida's presence did not deprive the federal district court of jurisdiction.[43] It said that the suit was not between Georgia and Florida in a jurisdictional sense because "[t]he states do not seek relief from each other but, rather, want the Corps to act on the water supply request in opposite ways—Georgia seeks to have the Corps grant its request, while Florida wants to have it denied."[44] If this logic appeals to the Supreme Court, the Court might prefer that a lower federal court in Georgia or elsewhere decide on Georgia's demand for more water from the Corps and Alabama, as well as Florida's opposition to that demand.

B. The United States as an Indispensable but Absent and Unjoinable Party

1. Historically

The sovereign immunity of the United States protects it from suit without consent even if the would-be plaintiff is a sovereign state.[45] Although Congress has given blanket statutory consent for joinder of the United States as a defendant in certain kinds of water disputes,[46] it has not done so for equitable apportionment suits between states.[47] Therefore, if federal interests make the United States an indispensable party to an apportionment suit and if it does not elect to intervene, the Court must dismiss the suit.

Although the...