Fred Grimm

Fred Grimm: Florida’s legal fees flow like a mighty river

After 24 years of unending, uncompromising water wars, Florida versus Georgia, one lawsuit after another, the flow has built to a mighty torrent.

Of legal fees, that is.

Last week, the U.S. Supreme Court set off yet another litigation bonanza, agreeing to consider Florida’s claim that Georgia has been pilfering so much water out of the Chattahoochee River on behalf of the sprawling Atlanta metropolitan region that the downstream effect has ravaged Florida’s Apalachicola Bay.

It was a startling decision by the Supreme Court, which, in effect, will sit as the trial court to decide this particular aspect of the long, long squabble. This means years more of litigation, of course, to be broken down in billable hours.

Gov. Rick Scott called the court's decision “huge news and a major victory for Florida.” He added: “For 20 years, Florida has tried to work with Georgia, and [Apalachicola Bay] families have continued to see their fisheries suffer from the lack of water.”

He was off by four years. This long legal tussle started back in 1990. Florida claims that Georgia has been taking way more than its fair share of the water flowing through the Chattahoochee-Flint-Apalachicola river basin, most of it sucked up by Atlanta. But it’s hard to imagine that Florida can actually persuade the Supreme Court to compel the Atlanta region to cut back water usage to its 1992 level. The Atlanta area had a population of three million back in 1992. Today it’s up to 5.4 million.

The Supreme Court case was just another of the many lawsuits filed over water rights in the river basin, often with Alabama joining in with Florida, claiming Georgia has been leaving downstream neighbors with just the dregs. Florida won what looked like a major victory in 2009, limiting Georgia’s water grab, though U.S. District Court Judge Paul A. Magnuson added a futile footnote to his decision: “Only by cooperating, planning and conserving can we avoid the situations that gave rise to this litigation.”

Fat chance. In 2011, the U.S. Circuit Court of Appeals for the Eleventh Circuit sided with Georgia, but left it up to the U.S. Army Corps of Engineers to decide how much Atlanta could intercept from the Chattahoochee. Florida headed to the Supreme Court with an argument that if we waited while the Corps piddled around with this until 2017, our oyster industry would be dead and gone.

The famed Apalachicola Bay oyster fisheries have indeed collapsed. The feds pronounced the industry a disaster in 2012 — and it was probably because of the paucity of freshwater flowing down out of Georgia (Of course, Florida has done a fine job of destroying the other oyster fisheries that once lined our west coast without a bit of help from Georgia.).

The oysters may be doing poorly amid all this never-ending litigation, but the lawyers are thriving.

Cynthia Barnett, a Florida-based author who has written three books on water issues, Mirage, Blue Revolution and the forthcoming Rain, has researched legal costs Florida has rung up fighting Georgia. She found that since 2001, Florida’s legal fees have reached $19,902,833.43, paid out to six law firms.

The Supreme Court case, of course, will demand only the priciest lawyers. The Atlanta-based Daily Report noted last week that Georgia had hired former U.S. Solicitor General Seth Waxman to take on Florida in the case. Waxman’s application for the job noted that his usual rate was $1,115 an hour, which indicates that the lawyers Florida taxpayers will need to argue their side of the case won’t come cheap.

Georgia Attorney General Sam Olens told the Daily Report, “The Supreme Court’s action now gives us the opportunity to address head-on — and defeat — Florida's ridiculous claims.” Olens added, in something of an understatement, that the “time and expense this process will involve is regrettable.”

But not to the $1,115-an-hour lawyers.

With no end in sight. In fact, Georgia filed yet another lawsuit Friday against the Corps of Engineers over water allocated for Alabama.

“Imagine what good we could have done for the Chattahoochee and Apalachicola rivers if we’d spent these years — and the millions of dollars — working together to use less,” Barnett said.

It seem especially peculiar that after all these years, the warring parties haven’t been able to craft an out-of-court agreement. Here we have two — three if you count Alabama —Republican-run states with Republican governors, with Republican-dominated congressional delegations, all of them espousing the same conservative, tight-fisted, save-taxpayer-money ideology, happily giving away millions to fancy lawyers in an endless string of water-rights lawsuits.

Florida claims that Atlanta has been gulping water like some drunken sailor to sustain unfettered development, which might sound slightly hypocritical coming from a governor who has crippled his own state’s planning agency and has promised to fight environmental regulations that might hinder development.

Barnett noted that Georgia has actually done much better than Florida lately in the way of water conservation, particularly in areas like rainwater retention. “Georgia has leap-frogged us when it comes to water sustainability,” Barnett said.

“Just imagine, if for all these years, instead of fighting in court, the states had been working hand-in-hand and spending this money to reduce water consumption,” she said.

“I sometimes think it would be better that if, instead of lawyers, we had asked soccer referees or kindergarten teachers to work this out.”

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