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

By Holden, Elizabeth | Vanderbilt Journal of Transnational Law, October 2019 | Go to article overview

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


Holden, Elizabeth, Vanderbilt Journal of Transnational Law


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. …

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