Florida v. Georgia

Oral argument transcript · No. 142-orig · October Term 2020 · argued February 22, 2021 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Gregory G. Garre, Washington, D.C., for the petitioner
• Craig S. Primis, Washington, D.C., for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument this morning in Original Case 142, Florida against Georgia. Mr. Garre. ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PLAINTIFF

Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court: The last time this case was here, the Court remanded for the Special Master to conduct an equitable balancing inquiry, but, on remand, the Special Master immediately short-circuited that inquiry by finding that Florida has not been harmed at all as a result of Georgia's exploding irrigation use along the Flint River. That finding, which is overwhelmingly refuted by the evidence, corrupted his entire analysis. The Special Master relied on the supposed absence of harm in concluding that Georgia's consumption was reasonable. He relied on the absence of harm in concluding that Florida would not benefit from a decree. And he relied on the absence of harm in refusing even 1 to order Georgia to stop irrigating on permitted acreage. And yet, despite getting off track, even Special Master Kelly found that Georgia's consumption only increases in drought periods, when water matters most, that Georgia has not effectively curbed this use, and that there's no doubt that extreme low flows have occurred much more frequently in recent times. Those findings alone compel the conclusion that Georgia's unrestrained consumption is unreasonable. Under the balancing called for by this Court, the evidence overwhelmingly establishes that Florida would significantly benefit from a decree and that meaningful relief is available for little or even no cost to Georgia. In fact, hundreds of additional CFS inflows could be generated at zero cost simply by halting illegal irrigation, eliminating overwatering, and scheduling irrigation to maximize its impact. That water in itself could prevent the extreme low flow conditions that decimated the Apalachicola in 2012, a huge benefit. Denying relief in these circumstances not only would be a death sentence for 1 Apalachicola but would extinguish Florida's equal right to the reasonable use of the waters at issue. I welcome the Court's questions.

Chief Justice Roberts: Mr. Garre, how should we analyze the case if we think based on the record that Georgia contributed to the collapse of the oyster harvest but not enough to cause that on its own, that the situation is like that on "Murder on the Orient Express," a lot of things took a stab at the fishery: drought, overharvesting, Florida regulatory policies, but also lower salinity that was caused by Georgia's use of the water. But you can't say that any one of those things is responsible for -- for killing the -- the fishery. How -- how should we analyze the case from that perspective?

Gregory G. Garre: Sure. Under basic causation principles, Your Honor, and as we explain in our brief, the test under the Restatement for causation is that we have to show that Georgia's consumption was a substantial factor in the harm to the bay and 1 river area. The fact that there may be contributing causes doesn't mean that Georgia's consumption, if it is a substantial cause, is a factor, as we think the record overwhelmingly shows. The -- the fact that there could be contributing causes does not defeat causation. And, here, the one thing that we know that changed in the region over time is that Georgia's consumption has drastically increased, and that has led to an extreme increase in the low flow periods that precipitated the 2012 crash of the oysters. Over -- the overharvesting theory is utterly refuted by the evidence and in particular the fact that dead oysters remained on the bars and that private leases that were not subject to public harvesting were decimated as well.

Chief Justice Roberts: Well, the -- the Special Master concluded that Georgia -- that Georgia would be required to allow huge amounts of water to flow into the bay to really allow recovery of the oyster fishery and that that would not be -- be equitable. 1 What is your response to that?

Gregory G. Garre: Well, first, Your Honor, as the chart on page 18 of our reply brief shows, just an additional 500 CFS inflows in key months would help eliminate the conditions that precipitated the crash, and I think that in itself would be huge relief. Secondly, the evidence overwhelmingly showed that additional flows or flows in that range would significantly benefit the bay. He focused on bars that were further from the mouth of the river. Dr. Glibert testified that at the mouth of the river, which serves as a nursery area for the entire bay, that the additional flows could result in a reduction of up to 30 percent in salt stress and that this would help recede the entire bay, and --

Chief Justice Roberts: Thank you, counsel. Justice Thomas.

Justice Thomas: Thank you, Mr. Chief Justice. Mr. Garre, a couple of questions. You -- you say that Georgia has influenced the reduction in flow. Could you give us a before 1 and after? You seem to suggest in your -- in your briefs that an increase of above 6,000 cubic feet per second would be beneficial to the oyster beds, and -- but there's much discussion about the Corps limiting the flow to 5,000 square -- cubic feet -- feet per second during the low flow and drought periods. Could you give us a sense of when there was a flow that was above 5,000 and when did that reduction occur, and what role does the Corps play in the reduction during the drought and dry period being at 5,000?

Gregory G. Garre: Sure, Your Honor. And, first, I, again, would point you to the chart on page 18 of our reply brief, which shows the flows in specific months and shows this -- the increase in the number of months in which flows have dipped below 6,000 and the steady increase right before the crash in 2012. So that -- that's point one. Two, historically, if you go back and compare low flows in the modern era versus low flows during drought periods, historically, you see that state line flows have decreased by 4- 1 to 5,000 CFS. And Georgia's consumption estimates are so small it has no answer for, we're up to 3,000 in CFS and differential goes. It has no answer for that. And then, Your Honor, as to the Corps, this Court in its prior decision said that the Corps would work to accommodate a decree in this case. The more water that goes into the system is going to be more water into the reservoirs that would help the Corps avoid drought operations in the first place. So I think a remedy here would undoubtedly result in more water and would undoubtedly result in the elimination of the conditions that precipitated the crash, and that can be achieved with as little as 500 CFS, Your Honor.

Justice Thomas: Well, that's -- you know, that's interesting because one of the problems we had during the dry and drought period before was that the Corps under its manual and its operate -- its operating manual had a tendency to hold water behind the dams and only allow 5,000 cubic feet per second. The -- I don't know, what would -- 1 what would you do, what could the Corps do, within the confines of its current operating manual to accommodate what you're asking for?

Gregory G. Garre: Well, Your Honor, first, the Special Master -- Master Lancaster found and I think even Special Master Kelly recognized the Corps has discretion to release more than 5,000 CFS, and it has done so historically. Special Master Lancaster outlined the evidence at pages 53, 55 of his initial report. And, Your Honor, we're asking this Court to order an equitable apportion of water. This Court made clear in the prior decision, and the Corps itself, the United States, has represented to it, that it will work to accommodate a decree. It can release more. Counsel for Georgia recognized at the hearing below at pages 47 to 48 that one of the modifications that could be made would be to adjust the rule when the Corps goes into drought operations.

Chief Justice Roberts: Thank you, counsel. Justice Breyer.

Justice Breyer: Well, the part I 1 don't understand, I mean, you now face two big hurdles. Of course, one is all these -- a lot of people testified or some testified, experts, that there was overharvesting of the oysters, and that was the major cause. That's your basic problem. The other, which I don't understand too well, which I'd appreciate your clarifying first, I assume your experts went out and they said, this is how much water falls in Georgia or comes into Georgia every year, and we'll subtract from that the water that evaporates, and we end up with a number that they must be using, and that's a lot. And the other side says, well, let's go out and measure what they're actually using. And they went and measured it, and that was a little. And between the two, there's a lot of disappearing water. Where does it go? And why? I mean, you have the burden of clear and convincing evidence. So, if the Special Master, and we looked through the record, adequately supported if it is, that they didn't use that much water. How do you get around that?

Gregory G. Garre: Right. So, first, Your Honor, our estimates square with what's happening on the ground, which is to say a severe reduction in state line flows declining basing yield and a significant increase in the number of low flow days below 6,000. I mean, all of that confirms that there has been a major change in the area. And the -- and the evidence also shows overwhelmingly that Georgia's irrigation use has skyrocketed and that George -- that Florida has been harmed as a result of these low flows. Now Special Master Kelly himself said that the true test of unreasonable consumption was harm. Here, you have overwhelming evidence of harm. You have overwhelming evidence of what's causing that harm: the extreme spike in Georgia's consumption.

Justice Breyer: Well, what is the evidence? Give me your best evidence. I mean, you have -- you -- you -- you have some oyster fishermen who went out and said, hey, there are a lot of dead oysters around here. And if we overharvested them, why are there all these dead oysters? Because they're in somebody's stomach 1 but not on the reefs or not out here. And -- but the other side says there are not that many and the water wasn't that saline and there are a few more conches but not too many, and you did overharvest the oysters after the oil spill particularly because you thought get them now or never. So we have conflicting evidence.

Gregory G. Garre: But, Your Honor, you don't have --

Justice Breyer: So what's your --

Gregory G. Garre: -- you don't have conflicting evidence about this. One, that -- there was an unprecedented invasion of predators into the bay. Mr. Ward and Mr. Berrigan, as well as Mr. Kimbro, testified to that. Two, that dead oysters remained on the bars. Mr. Berrigan testified as to that. That's utterly inconsistent with overharvesting. Three, that the private leases that were not subject to public harvesting were decimated as well. And, four, that reshelling efforts haven't worked. Even Georgia's own expert, Dr. 1 Lipcius, recognized that reshelling works when the conditions is right. Florida has been trying to reshell and bring the bay back for many, many years, and to this day, it hasn't come back because the conditions, it's not overharvesting that caused the crash.

Chief Justice Roberts: Thank you, counsel. Justice Alito.

Justice Alito: This is about the most fact-bound case that we have heard in recent memory, and we have two comprehensive reports by two outstanding masters and they are not -- to put the point perhaps mildly, not entirely consistent on a number of key points. What do we do with that?

Gregory G. Garre: So, Your Honor, ultimately, this Court has responsibility as fact-finder and would take de novo review of all the evidence. Now you're right, I mean, that the Special Masters reached diametrically opposed conclusions. We think the fact that Special Master Lancaster actually sat through the trial, heard the cross-examination, is very important. But, ultimately, this Court has to 1 make its own findings, and that's what we're asking it to do.

Justice Alito: All right. To follow up on the point that Justice Breyer was -- was exploring, which is the cause of the collapse of the oyster beds, there's conflicting evidence. You have evidence from Dr. Berrigan and Mr. Ward. The other side has evidence from its expert, Dr. Lipcius. But what about hard scientific evidence about salinity? What is the maximum salinity for healthy oyster beds, what was the salinity in 2012 at the time of the collapse, what is it today, et cetera?

Gregory G. Garre: Right. So Dr. Greenblatt, Dr. Kimbro, and Dr. Glibert all testified as to that, Your Honor. Dr. Glibert testified that the normal range at the mouth of the bay is zero to five parts per thousand. And -- and that's significant because the remedy that we're talking about could result in an increase of -- of one -- one part per thousand or more, which would mean a 20 to 30 percent decrease in salt stress at the mouth of the bay. And so Dr. Greenblatt also testified about the salinity conditions. 1 And this is all very similar to what happened in New Jersey versus New York, Your Honor, where this Court ordered an equitable apportionment under very similar conditions in order to protect New Jersey's oysters -- oysters.

Justice Alito: Yeah, well, what was the -- what was the salinity at the time of the collapse?

Gregory G. Garre: Again, Your Honor, in -- at the mouth of the bay, the salinity is in the range of zero to 5. Ordinarily -- I mean, what -- what all of the experts and the eyewitnesses showed is that there was a great increase in salinity in the bay, and it essentially became a marine environment. And the biggest evidence of that, Your Honor, is the unprecedented influx of predators, the oyster drills and other snails, which devoured the oysters. I mean, the --

Justice Alito: No, I -- I understand all that. You -- you have -- you know, you have some good evidence in support of your theory of cause, but I take it we -- we really do not have before and after measurements of salinity at the -- in the bay -- in -- in -- at the -- at 1 the -- at the beds, is that correct?

Gregory G. Garre: I don't think it's accurate. I believe Dr. Kimbro did a number of studies on that, Your Honor, and I think -- you know, again, ultimately, I don't think there's any serious dispute that the -- the main problem is that the bay became essentially a marine environment because of the increase in salinity. That's what causes the influx of predators. And the Court recognized this in New Jersey. So we could debate about the exact number, but the -- the problem is, is that the change in salinity caused this invasion of predators that our witnesses described was like a science fiction movie, it was so bad. And --

Chief Justice Roberts: Thank you, counsel. Justice Sotomayor.

Justice Sotomayor: Counsel, my biggest problem with your case are three facts, all offered by your experts. First, Dr. Greenblatt modeled that without any water consumption by Georgia, salinity would have changed by one to eight parts per thousand but generally less than five 1 ppts. Then you have Dr. Kimbro, who he relied on, and his experiments show that to see any appreciable effect on predation, you need salinity changes of 5 to 15 ppts. And then you have Dr. White, who predicted that if Georgia had not consumed any water, oyster biomass in 2012 would have been 7 to 10 percent higher. I'm doubtful that a 10 percent change is sufficient to be viewed as an invasion of rights of a serious magnitude. It's hard to -- to imagine how water consumption that at most, by your own experts, contributed less than 10 percent to your problem, to Florida's problem, how would that justify the use of an equitable remedy?

Gregory G. Garre: Well, Your Honor, the -- the Court in New Jersey versus New York found that it did justify the use of an equitable remedy in almost identical circumstances. The change in salinity there was .5 to 1.5. That's point one. Point two is Dr. Glibert specifically testified that the remedy that we're requesting could result in a 20 to 30 percent reduction in salt stress at the mouth of the river. And this 1 is the critical point, and it goes to Dr. White's finding about biomass. That was taken from a single bar which was further away from the mouth of the river. Dr. Kimbro and Dr. White testified that there would be considerably more oyster biomass on the reef. That's at pages 1720 to 21 of Dr. White's testimony. She would expect large increases at bars closer to the river. That's 1725.

Justice Sotomayor: But you know --

Gregory G. Garre: And that the --

Justice Sotomayor: -- counsel, Dr. White was your expert.

Gregory G. Garre: She was, Your Honor.

Justice Sotomayor: And so why didn't she do the test there? Why should the Special Master or us be bound by the testimony of an expert who takes tests at the best part of the river for her and for her conclusions and doesn't at the parts where she says it's a greater effect?

Gregory G. Garre: Well, Your Honor, I mean, she knows oysters well and she -- she testified as to the normal range of salinity there, which is zero to -- to five. And she testified as to 1 the, you know, significant results of increasing flows at the mouth of the river.

Justice Sotomayor: Well --

Gregory G. Garre: And Dr. Kimbro --

Justice Sotomayor: -- but let me ask you a further question on this, you know, this one ppt change, which, in the east bay, as -- as she testified, it's about 10 percent. But I don't know where the expert testimony is that 6 ppts, as opposed to 5, is bad for oysters or is what caused the -- the issue -- the -- the decrease here. Your own experts, Dr. Kimbro and Dr. White, said that at least 12 or 15 ppts is actually optimal for oysters.

Gregory G. Garre: Your Honor, I -- I would point you specifically to Dr. Glibert's testimony at pages 1869 to 70, where she -- where again she testified that the remedy we're talking about would result in a 20 to 30 percent decrease in salt stress and this would have many positive feedbacks. Dr. Kimbro said that there would be much more pronounced benefit as you move closer to the river and that this could help reseed the entire bay. This is at 1570 --

Chief Justice Roberts: Thank you, 1 counsel. Justice Kagan.

Justice Kagan: Mr. Garre, you said a while ago that Florida would benefit from as little as 500 CFS. And I didn't get that in your briefs. You know, in your briefs, it didn't seem to me that you made an argument that less than 1,000 CFS would make any difference in the bay. So where is this 500 coming from? What's the evidence that you have that 500 CFS would matter?

Gregory G. Garre: Sure. First, I mean, if you look at the chart on page 18 of our reply brief, it shows how the 500 CFS would bump flows above 6,000. And the one thing you can see from the record is that, historically, what happened before the crash is you had extreme frequency of low flows below 6,000. So the 6,000, which Dr. Hornberger and Dr. Allan testified was a biologically important threshold -- Hornberger at paragraph 46 of his pre-filed direct, Allan at paragraph 32 -- that would help avoid the conditions that precipitated the crash. Now Dr. Allan also testified that as little as 300 to 500 CFS could have a 1 disproportionately large impact -- pre-filed direct paragraph 3d and 26, paragraph 80 -- and would be a wonderful positive step to protecting the ecosystem. He had no doubt whatsoever about that, page 592 of his trial transcript. So the record does show that, Your Honor.

Justice Sotomayor: And did you ever quantify exactly how much water would flow to you on -- on the assumption that Georgia would increase its conservation efforts? That seems to be a gap in the record, that there's no quantification of that, you know, pretty important measure.

Gregory G. Garre: I don't -- we did, Your Honor, absolutely, Dr. Sunding in particular, and I can run through those. I mean, halting illegal irrigation and enforcing permits would result in 125 to 151 CFS. That's paragraph 47 in his pre-filed direct. Eliminating overwatering would be an additional 341 CFS, FX 801 at 2. Irrigation scheduling, just maximizing the impact of irrigation, Sunding paragraph 58. Masters, his testimony at 368, that would -- that would result in significant savings as well up to 200 1 CFS. And then eliminating farm pond irrigation itself could result up to 300 CFS. And he testified to this at his Table 4 to 6 on page 44 of his testimony. All of those, I might add, would cost Georgia nothing or very little.

Justice Sotomayor: And those statistics that you just gave to me, does that take into account the Corps' operations or not?

Gregory G. Garre: Well, now this is the water that could be generated, Your Honor, this -- the separate question of the water going through, and I -- and I think, I guess, I would point you to what the Court said in the prior decision, that the Corps would work to accommodate any decree. I mean, we're sort of in a chicken-and-egg situation here, but I don't think the Corps made clear last time and made clear in its brief again here that if this Court orders a decree, it would accommodate that decree, and the easiest way to do that would be to exercise the discretion it has to allow additional water through.

Justice Sotomayor: Thank you, Mr. 1 Garre.

Chief Justice Roberts: Justice Gorsuch.

Justice Gorsuch: Good morning, Mr. Garre. I -- I take it we start from common ground that to succeed, Florida has to show that the benefits of an apportionment decree would substantially outweigh the harm that would result.

Gregory G. Garre: Yes, that's fair.

Justice Gorsuch: Okay. Judge Kelly found that the decree would cost about 100 million dollars a year in drought years for Georgia on the one hand and that the entire oyster fishery generates about 6.6 million dollars a year before the collapse. Even -- even assuming that Judge Kelly was mistaken by several orders of magnitude, why doesn't that preclude or at least pose a problem for you?

Gregory G. Garre: Sure. I mean, first, this Court made clear that each state has an equal right to the reasonable use of the waters. Georgia has never disputed that Florida's decision to use the waters to replenish an 1 irreplaceable ecological resource is reasonable. And Georgia's use is extinguishing that right. So I don't think that the pure dollar-and-cents inquiry in that respect is correct. And I think New Jersey versus New York proves that because, if it really just came down to oysters versus, you know, lots of people or otherwise, then New York City would have crushed New Jersey in that case, and that's not the way it worked out. And I also would say that Special Master Kelly's cost estimates were fatally flawed, in particular insofar as they rely on the premise that our remedy would wipe out irrigation altogether. And -- and I would urge this Court, if you read one thing for the record, please read Dr. Stevens' cross-examination from pages 4453 to -- to 4468 and 4490 to 95. There, Dr. Stevens recognizes all of the things that he didn't consider that would generate additional flows, including eliminate -- eliminating illegal irrigation, scheduling irrigation, farm pond evaporation, simply irrigating less. Instead, Dr. Stevens' cost estimates 1 depend on the premise that we would eliminate irrigation and eliminate farming altogether in the region, a particularly absurd premise given that over half of the farming in the region is done without any irrigation whatsoever.

Justice Gorsuch: I -- I guess I was trying to get at, I -- I accept that there are ecological harms as well, but how -- how do we account for those given the dollar-and-cents disparity? Assume for the moment Judge Kelly's numbers are not completely to be dismissed. Then --

Gregory G. Garre: Right.

Justice Gorsuch: -- then what?

Gregory G. Garre: Well, first, if you're going to consider dollar and cents, you should also consider that Florida has invested hundreds of millions in preserving this ecological treasure, and so that ought to count. And second, the remedy that we're asking for, you can generate more than 500 CFS at zero cost to Georgia. Even -- even Special Master Kelly recognized that halting irrigation would -- illegal irrigation would result in an 1 additional 125 CFS at zero cost. That's on page 75 of his report. And then, if you include eliminating overwatering, irrigation scheduling to simply maximize the impact, reducing farm pond irrigation, all of those things would cost Georgia next to nothing and save --

Justice Gorsuch: Thank you. Thank you, counsel.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Thank you, Mr. Chief Justice. Good morning, Mr. Garre. Just picking up on Justice Gorsuch's line of questioning, what if there would be substantial benefits to Florida of an -- an apportionment but also substantial cost to Georgia of doing so? So just assume that: benefits substantial, costs substantial. How in that circumstance could we say that the benefits substantially outweigh the costs if both the costs and the benefits are substantial in -- in some way?

Gregory G. Garre: Right. Well, if you 1 conclude that costs outweigh the benefits, then, you know, we're done, but -- but, obviously, we don't think you should conclude that. And on the costs, I mean, just to be clear, I mean, more than 400 CFS can be generated at no cost at all to Georgia, none. And -- and, again, I mean, we're talking about eliminating illegal irrigation, you know, over 90,000 acres that have no permits at all, enforcing existing permit terms, that would cost zero. Simply eliminating overwatering, such as using center pivots to water outside of the fields, scheduling irrigation to maximize impact, reducing farm pond evaporation. I mean, there's over a hundred -- 1200 CFS evaporates from farm ponds every year, and this is needless waste and efficiency that's not protected. And so I think a decree in this case could cost Georgia virtually nothing and generate significant flows above 500 CFS that would eliminate the very conditions that precipitated the crash. And given the benefits to Florida, given preserving this ecological resource, we 1 think that that substantially outweighs the costs of the very little that Georgia would have to incur.

Justice Kavanaugh: Well, I think you assumed away part of what I was posing, which is I was posing a question that assume you're right about the benefits to Florida, but assume also that there are substantial costs to Georgia. I know you disagree with that, but just assume that. How do we then go about doing the -- the balancing in that circumstance?

Gregory G. Garre: Right. Well, I mean, first, you can calibrate the remedy to reduce the cost, Your Honor. I mean, there's a range of options, you know, starting with simply requiring Georgia to eliminate waste and inefficiency. Special Master Kelly declined to consider that because of his flawed harm finding at paragraph 50 -- in Footnote 51 of his decision. Secondly, there are enormous benefits to preserving this ecological treasure. It's one of the unique -- most unique estuaries in the northern hemisphere. 1 And again, third, I'd point you to New Jersey versus New York. In that case, New York City wanted more water for municipal purposes, and yet the Court held that it couldn't have as much as it wanted because it was going to preserve New Jersey -- New Jersey's little old oysters. And I think that the same balancing would call for the same result here, where preventing waste and inefficiency could result in the additional flows that could help save this irreplaceable ecological treasure as well as the oysters and the communities that depend on it. The Seafood Oysters Association brief explains in compelling terms how, for centuries, these communities have relied upon the bay, its resources, and its oysters. And what Georgia is doing is wiping that out because of its voracious consumption of water, which is extinguishing Florida's reasonable right to use that water.

Justice Kavanaugh: Thank you, Mr. Garre.

Chief Justice Roberts: Justice 1 Barrett.

Justice Barrett: Good morning, Mr. Garre. I have a question about what showing you're required to make at this stage about the Corps' -- what role the Corps would have in ensuring that extra water went to Florida even assuming that we impose this cap of 1,000 cubic feet per second. I mean, last time around, the Court said that the Special Master had required too much and too soon, essentially, from you with respect to the proof of what the Corps would do. Specifically, what more have you shown this time around? Because now the other findings that Special Master Lancaster did not make have been made. So have you done anything additional to show what the Corps could do to accommodate?

Gregory G. Garre: Sure.

Justice Barrett: Are you just kind of relying on the government to -- to pony that up?

Gregory G. Garre: Sure, Your Honor. The first thing we did when the case got back in remand before Special Kelly was to ask for additional fact-finding on the 1 reasonable modifications that the -- the Corps could make to its manual, as well as the impact of the revised manual and changes in consumption and harm since the last trial. And Special Master Kelly denied that fact-finding out of the box. So the answer to your question is that there's not more evidence in the record, and it's because Special Master Kelly denied us the opportunity to develop that -- that evidence, which we think was wrong. Now, having said that, you know, last time, this Court made clear that the Corps would accommodate a decree and that the case should be decided on that premise. And I think one of the flaws in Special Master Kelly's report is that -- is that he repeatedly disregarded that in finding that the Corps would not allow the water through. This Court, in its prior decision, I think, requires the Court to presume that the Corps would allow the water through, would work to accommodate a decree, as it said, again, in the brief before this Court.

Justice Barrett: Okay, Mr. Garre, let 1 me switch gears, and I just want to narrow down what is actually at stake here, what your contentions are. Most of your brief and most of your argument has focused on Georgia's agricultural uses. So are you abandoning any challenge to municipal use?

Gregory G. Garre: We are. Our focus here is on agricultural use and irrigation in the Flint River, Your Honor.

Justice Barrett: Okay. And, similarly, briefs and oral argument have focused primarily on the effects of Georgia's consumption on the oyster industry. It seemed to me that your evidence of effects on the wildlife and plant life as a result of the consumption was pretty weak, that you didn't show a reduction in species. So am I correct that you're really primarily focused simply on the harms to the oyster industry?

Gregory G. Garre: No, Your Honor, we do think the harms to the river area are significant as well, and, you know, we pointed to evidence about the sharp decline in tree species in particular.

Justice Barrett: But that's predated, right? Those charts were from, what is it, between 1976 and 2004?

Gregory G. Garre: Well, I think Dr. Allan, as well as Dr. Clawndaw, described the harms, you know, over time and in more recent periods. I mean, what's happening is that sloughs are becoming disconnected, and, in particular, mussels are drying up. The U.S. Fish and Wildlife Service itself has recognized that, and it, you know, condemned Georgia's consumption. I point you to FX 46, 47, and 48 in particular on that, where they've raised increasing alarm bells about Georgia's consumption and its impact on the mussels in that area.

Justice Barrett: Thank you, Mr. Garre.

Chief Justice Roberts: A minute to wrap up, Mr. Garre.

Gregory G. Garre: Thank you, Your Honor. I guess I would say in closing it's hard to imagine New England without lobsters or, say, the Chesapeake without crabs, but, in effect, that's a future that Apalachicola now faces when it comes to its oysters and other 1 species. And yet, just to be clear, no one is asking or saying to Georgia farmers, sorry, you can't grow your crops anymore because there's no water left for you. Under the decree Florida is requesting, all farmers could continue -- continue to grow their crops. A decree would simply require them to prevent outright waste and adopt more efficient measures to save water while still irrigating. That's hardly asking too much. As this Court stressed in its prior decision, Florida has an equal right to the reasonable use of the waters at issue. Georgia has never disputed that Florida's use of the water to replenish an irreplaceable ecological treasure is reasonable. And yet, if the Court accepts the Special Master's recommendation, that right will be extinguished, and the Apalachicola, not to mention the communities that have fished and depended on it for centuries, will be lost. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Primis. 1 ORAL ARGUMENT OF CRAIG S. PRIMIS ON BEHALF OF THE DEFENDANT

Craig S. Primis: Mr. Chief Justice, and may it please the Court: Florida's petition should be denied for a very basic reason. Simply put, Florida failed to prove its case. On this record, after a five-week trial, Florida has not shown by clear and convincing evidence that Georgia caused Florida's alleged harms. And Florida also failed to show that the benefits of the decree it seeks substantially outweigh the harm it might cause. Florida's oyster allegations prove the point. Florida failed to demonstrate that Georgia's water use caused the oyster collapse. Instead, the record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse. As one Florida official said at the time, they bent their oyster fishery until it broke. To remedy this self-inflicted wound, Florida asks the Court to impose draconian caps on Georgia. But a 50 percent cut in irrigation would cost hundreds of millions of dollars to 1 Georgia and all for an increase in oysters of about 1 percent. This same problem -- massive costs on Georgia to provide negligible relief for Florida -- cuts across every aspect of Florida's case. Granting relief on this record would be the very opposite of equity. Georgia is home to more than 90 percent of the population, 98 percent of the jobs, and 99 percent of the economy in the ACF basin. The vast majority of the water in this basin already flows into Florida every year, and Georgia puts the relatively small amount it consumes to highly productive uses. The Court's earlier opinion in this case reaffirmed that a complaining state must have not merely some technical right to more water but a right with a corresponding benefit. Here, Florida has neither. Georgia respectfully requests that the Court overrule Florida's exceptions and enter judgment in favor of Georgia. I look forward to answering the Court's questions.

Chief Justice Roberts: Thank you, 1 counsel. I'd like to pose to you the same question I did to Mr. Garre. You just said Georgia did not cause Florida's harms. Even if you're not a sufficient cause, how do you analyze the case if we conclude the record supports the idea that you were a contributing cause? In other words, are you off the hook if you alone did not cause the harm to the fishery?

Craig S. Primis: Mr. Chief Justice, the Court has not directly addressed the causation issue that you posed in its prior cases. On this record, the Court need not actually decide it because Florida hasn't proven causation by Georgia under any standard that's been proposed and certainly not the substantial factor --

Chief Justice Roberts: All right. Well, that's -- that's, of course, avoiding the question. Assume I read the record differently than you do.

Craig S. Primis: Understood, Chief Justice. The Court's opinions do suggest a greater level of directness than Mr. Garre suggested, given the interests at stake between states and the natural resource -- resources that they share. This Court's decisions are 1 more consistent with a higher level of causation on the state whose conduct is being challenged.

Chief Justice Roberts: So, if you're, you know, a 20 percent cause, maybe that's not enough, but if you're a 40 percent cause, then that can be enough to move to equitable apportionment?

Craig S. Primis: No. Given the extraordinary nature of the remedy, Chief Justice, the causation must be much higher for the state whose conduct is being challenged. We would say something akin to a but-for causation requirement. And that's consistent with the extraordinary nature of the remedy that's at issue here. But, again, on this record, we would suggest the Court need not decide that.

Chief Justice Roberts: Well, we don't really know what the extent of the remedy would be. That's what you're going to decide if the case moves toward equitable apportionment. But you think a -- a significant causation level above 50 percent is necessary before you even get to that stage?

Craig S. Primis: Yes, Mr. Chief Justice.

Chief Justice Roberts: How do you 1 weigh the interests of -- competing interests of Florida oystermen and Georgia farmers? I mean, if we conclude that the contribution to the overall economy of the farmers is, you know, much more in dollar value than the contribution of the Florida oysters, does that mean you win?

Craig S. Primis: Well, certainly, economic contribution would be one factor of the multi-factored balancing test, but we don't think that it's a straight question of which state has the larger industry. The more compelling factor here is that even under Florida's own evidence, advanced by its experts, if the Court were to cap Georgia irrigation at 50 percent of its current utilization, that would only result in a maximum of a 1.4 percent benefit to Florida's oysters, and that would not be --

Chief Justice Roberts: Thank you, counsel. Justice Thomas.

Justice Thomas: Thank you, Mr. Chief Justice. Mr. Primis, the -- do you agree that there has been a reduction in the flow of water 1 into the Apalachicola over the years?

Craig S. Primis: Comparing the pre-reservoir, pre-Army Corps operations, and post-Army Corps operations, the answer to that question is yes, Justice Thomas.

Justice Thomas: So the -- when reading the -- Florida's brief, if I were to entitle it, it would be something along the lines of "The Case of the Disappearing Water." And if that is accurate, where do you think it went if Georgia is not the source of that disappearance?

Craig S. Primis: Certainly. The water is not disappearing. The first point I would make is that Florida is making a completely inapt comparison by comparing the ACF basin prior to the building of the dams and reservoirs and the Army Corps operations post. The Army Corps has the overriding influence in the amount and timing of flow from Georgia into Florida, and the reason that there were more days closer to 5,000 is because the Army Corps is controlling those flows in a way that did not exist previously. So it's not disappearing. The water -- it would be in 1 reservoirs. But it's compounded by the fact that there have been three back-to-back droughts that did not exist in the historic record, and the rain -- lack of rainfall accounts for the reduced flows as well as the change in seasonality. So the water's not disappearing. There's just less of it. And the Army Corps is intervening.

Justice Thomas: And I -- I'd like to go back to something else, taking my lead from Justice Alito's question. When we had this case the last time, the -- Special Master Lancaster focused on redressability, and, of course, the Court thought that we should go beyond that, and -- but there are pieces of his findings or portions that suggest that Georgia, particularly the agricultural area, caused some harm, and Judge Kelly now seems to come out the other way. And the question is -- I think Justice Alito's question is appropriate -- what do we do with that, with that in -- apparent inconsistency?

Craig S. Primis: Yes. Well, Special Master Lancaster specifically reserved on 1 causation, and Special Master Kelly was charged with looking at that very question, including how much water is Georgia using, how does it use it, and what would happen if it used less. And so what Special Master Kelly found, which was highly supported by the record, is that the irrigated acreage connected to the Flint River and the Upper Florida Aquifer -- Aquifer has not exploded in the way that Georgia suggests. It's flat from the period of 2004 to 2014. Georgia's own expert said that 80 percent of Georgia farmers are under water. And at present, they are using the water very efficiently with center pivot irrigation systems that have been upgraded to 90 percent efficiency, and there's been a moratorium on new permits since 2012. So, Justice Thomas, I would say that Special Master Kelly's findings are detailed and supported by the record. And while the Corps usually pays tacit respect and -- and defers to Special Master Kelly or to a Special Master, in this case, it -- it's all documented for the Court to see and can find -- reach that 1 conclusion on its own.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Breyer.

Justice Breyer: Well, I have two questions and one totally irrelevant question. The first was Justice Thomas's. How can there be these big discrepancies in how you measure this water that's being used by Georgia? I mean, huge discrepancies. I don't understand that. Anything you want to say further, fine. And the second is, how can there be these oysters all over the place and they go out and look and there are load -- loads of dead oysters all over, and they say, well, actually, no, it's overfishing that caused it all? Well, if you overfish, then you catch them. And my third question, which is absolutely irrelevant, this has been going on for years, and Florida thinks that it wouldn't cost Georgia much to remedy the situation. Maybe Georgia has a different view. But has anybody ever tried to work out a -- that Florida would pay something to Georgia to solve the problem? Has anybody ever tried is 1 only my question there. You don't have to answer it if you don't want to, but the first two I'd like to know.

Craig S. Primis: Well, let me try the first two first given the limited time, Justice Breyer. With regard to the oysters, I would refer the Court to the expert report of Dr. Lipcius, and what he found was that the actual data collected by Florida officials who were responsible for managing the oyster resource did not document elevated levels of dead oysters and did not document elevated levels of predators in 2011 and 2012, the period leading up to the collapse. So the data collected by Florida just doesn't support that conclusion, and that's counted just by the anecdotal testimony of these two individuals. Florida's own oyster expert, before he became their expert, he sent an e-mail in 2012 saying that he had inspected one of the bars and it looked like a gravel parking lot due to all the harvesting. That's the same expert who later testified to the contrary. 1 So the -- the -- the data just doesn't support it. And, in addition, Dr. Lipcius found that the bars that were heavily fished collapsed, and the ones that were not heavily fished, even with elevated salinities, survived and some of them even thrived. With regard to the data on how much water is consumed, the -- I would note that the two experts that Florida hired to conduct that analysis both conceded that their models had inherent errors ranging from 2,000 cubic feet per second to 10,000 cubic feet per second, which exceeds the total amount that Florida claims Georgia utilizes. So those models that they used and put forward the numbers are worthless from a scientific perspective. And with regard to Georgia, they have mapped their entire lower Flint basin region. They know where all of the center pivot irrigation systems are, and they document how much water those use through metering. And so they have a very detailed and specific and well-grounded basis to do this from the bottom up and come up with reliable estimates.

Justice Breyer: Thank you.

Chief Justice Roberts: Justice Alito.

Justice Alito: If we think there's some harm to Florida, but the imposition of the decree would cause harm to Georgia, what do we do with -- with that data? If it's just a matter of calculating the dollar value of Georgia agriculture and the Florida oyster and seafood industry, that's pretty straightforward. But Mr. Garre appropriately mentions that what is at stake is a precious ecosystem. So how do we take that into account? And in answering that, maybe you could answer this -- this question: To what degree are these oyster beds a natural phenomenon and to what degree are they a man-made creation? Was something like this present when Ponce de Leon sailed up, or is this something that oyster farmers have created?

Craig S. Primis: Justice Alito, with regard to the second question, the oysters do occur naturally in Apalachicola Bay, but they have to be managed and the resource has to be cared for by humans. 1 And so the two elements of that. There are limits on the amount of oysters that can be taken from the bay, and then the oyster resource managers have to -- have to reshell the bay and the oyster beds to ensure that there's a sufficient substrate for the new oysters to grow on. And so the combined effect of removing all the oysters from overharvesting and not replacing it with shell that future oysters can grow on has the effect of causing the bay to collapse. So it's actually a -- the combined answer. And I'm sorry, I lost the track of your first question.

Justice Alito: Well, how do we -- do we factor in the damage to the ecosystem if -- if a comparison is not going to be truly a question of money?

Craig S. Primis: Correct. And -- and Georgia does agree that it is not just a pure monetary comparison. I think the Court's decisions address this in saying that the potential benefits of the diversion must substantially outweigh the harm, and that has to 1 be shown by clear and convincing evidence. So the Court has set an appropriately high burden before it will intervene in really the internal water policy of various states.

Justice Alito: All right. Let me -- let me squeeze in one quick question.

Craig S. Primis: Sure.

Justice Alito: How do you get around New York versus New Jersey? Why isn't this just like that case?

Craig S. Primis: Sure. Ultimately, the record in this case answers the question. One thing that was not present in New York versus New Jersey was testimony from New Jersey's own experts that the additional water would give it no benefit. And, here, even taking every assumption favorable to Florida that it could -- that Georgia could produce 1,000 CFS, that the Army Corps would pass all of that water through, even though it won't, if you -- even using Florida's inflated use estimates, if you assume all of that and pass it all through, the end result that Florida's side said was 1.4 percent increase in the oyster bar, so, here, it truly 1 would be a vane thing to take out that much agriculture for the purpose of -- of helping oysters to the tune of 1 percent.

Justice Alito: Thank you.

Chief Justice Roberts: Justice Sotomayor.

Justice Sotomayor: Counsel, you're talking about taking out agriculture, but your brother on the other side points out that many of the conservation methods are at no cost. So, for example, you've made great strides in -- in improving irrigation efficiency. I see that in the record. But I also understand that half of Georgia's irrigation permits impose no limit whatsoever on how much water farmers can draw out of the ground or, once they do, whether they're overwatering. Now, whether or not 80 percent are not overwatering, there's still 20 percent that are. There has been a significant proof of more use by the farmers. I'm -- I'm just not sure how we can ignore the fact that there are measures that would not be costly that would only require that you do something about your grandfathered 1 permits so that there are limits put in and limits that are related to need rather than open-ended. Why should we ignore that those conservation methods would come at no cost?

Craig S. Primis: Justice Sotomayor, the -- I -- I think you hit on a key point when you said that the evidence in the record does show that 80 percent are -- are not overwatering, in fact, they're underwatering, which suggests that the fact that the grandfathered permits don't have limits is not causing the massive problem that Florida suggests. And what the Court's precedents suggest is that the Court will not intervene unless a state can show by clear and convincing evidence that the benefits substantially outweigh the harms. And I think what the Court might be walking into here is becoming a -- a bit of a local water regulator and focusing on Georgia's -- how it handles its permits and -- and how it handles its metering program at a point where doing so would give no benefit to Florida because, even if the Court were to limit 1 these allegedly wasteful practices, it would still result in no benefit to Florida. So we will not -- have not accomplished that side of the cost/benefit analysis, and now the Court will be involved in managing decrees on local water issues.

Justice Sotomayor: Thank you, counsel.

Chief Justice Roberts: Justice Kagan.

Justice Kagan: Mr. Primis, I'd like to take you back to your conversation with Justice Thomas about the Corps operations and how we should think about that. I mean, suppose that we had what you think is a different case than this one but a case where it was clear that Georgia was overconsuming water and it was clear that that -- that if that water was able to get down to Florida, Florida would be much benefited. But then suppose that we had no reason to believe that the water would get down to Florida because of the Corps' operations. How would we think about that kind of case?

Craig S. Primis: I think the answer again lies in the Court's precedence, which is that Florida would still lose because they will not 1 have shown by clear and convincing evidence that the benefits to them, which under the hypothetical I assume would be zero, would substantially outweigh the harm to Georgia from the reductions that the Court would impose.

Justice Kagan: But -- but we wouldn't say in that kind of case, look, you know, putting the Corps aside, the case for equitable apportionment is completely clear, and we should put the Corps aside because, if we make that clear to the Corps, you know, not -- even though the Corps is not a party here, but if we say, look, the -- there would be an equitable apportionment here, except for the Corps' practices, then we would typically expect the Corps to change its practices.

Craig S. Primis: Right, Justice Kagan, and that was the subject of the -- of the prior case. And I think what was shown there and what history has shown since there, since that time, is that the Corps -- it said it again on remand that they have multiple policies, multiple legislative directives that the Corps must balance and that there's no reason to believe that the additional water that may be generated 1 through the decree that Your Honor has described would get through even after its administrative process. And that's an administrative process that would require public comment, would require environmental analyses. It would require evaluation of all of the other dictates that the Corps is operating under. And so it would be, I believe, not clear and convincing evidence under the Court's existing standards --

Justice Kagan: So --

Craig S. Primis: -- because it would be speculative as to whether the Court would actually ever do anything, and it could be years, if not a decade, from now.

Justice Kagan: So what you're really saying is that this case could be as bad as it comes and Georgia would still win? In other words, Georgia could be overconsuming with -- without any regard to the downstreet -- the downstream state's well-being and -- and -- and -- and Florida could be suffering massive harm, and none of it matters because the Corps is standing in the way?

Craig S. Primis: No, Justice Kagan, that's 1 not what we're saying. What we're saying here is that Florida has the benefit of being able to receive a guaranteed minimum flow from the Corps and from its reservoirs and dams that provide great benefit to Florida at a time when the whole region is in stress. So Georgia is subject to all of the same rules as any other state in terms of reasonable use and equitable balancing, and Georgia takes that responsibility seriously and has practiced --

Justice Kagan: Thank you, Mr. Primis.

Craig S. Primis: Yes.

Chief Justice Roberts: Justice Gorsuch.

Justice Gorsuch: Good morning, Mr. Primis. One of Florida's complaints is that the two Special Masters seem to have pointed in different directions and that the -- the second, Judge Kelly, did not proceed to hold an evidentiary hearing or trial and, procedurally, that there's a problem here. What -- what's your response to that?

Craig S. Primis: Yes, the -- the critical issue in the case and on remand was the cause of the 2012 oyster collapse and whether anything 1 could be done to provide Florida redress for that. All of that evidence was already in the record. Special Master Kelly was absolutely right to determine that. And so he didn't need to take any additional fact-finding on that issue, and that ultimately is the dispositive issue in terms of the balancing. I -- I would also note that Florida has great resources and a lot of information under its own control. It didn't need more discovery or more evidentiary hearing to proffer what it would have told Special Master Kelly and to identify other ways in which it could have obtained a benefit. It -- it had no evidence to suggest that. So they didn't put forward a compelling reason or record for Judge Kelly to open the record again, and for the issues that were driving the result in the case and needed to be considered, the -- the -- he didn't need to.

Justice Gorsuch: Mr. Garre has suggested an argument today that a change of just 500 CFS would make all the difference in the world. They don't need 1,000 anymore, just 1 500, and that 500 would impose a -- a -- a more modest burden on Georgia. I'd like to hear your thoughts on that.

Craig S. Primis: Certainly. We know that's not the case because George -- Florida's own experts evaluated a varied -- a variety of remedy scenarios that involved reduction of 50 percent of agriculture in Georgia, which would result in about 1,000 CFS coming through, and those showed no benefit to Florida. With regard to the bay, it showed less than a 1 percent or around a 1 percent increase in the oyster population. There's no evidence of harm to any other species in the bay, so it really does come down to the oysters, and there's just no benefit to them. And then, with regard to the river, I believe Mr. Garre was referencing the possibility that 500 CFS may connect some additional, what are called sloughs, but that -- there was no study done of that, and Dr. Allan's analysis of the same remedy scenario, 1,000 CFS, showed that the populations he studied, if his analysis was even correct, would improve by 2 and a half percent or less. So if -- if -- at 1 500 CFS, there would be even less benefit than what Florida's experts modeled, finding virtually no benefit.

Justice Gorsuch: Do you accept the premise, though, that there's no cost to Georgia at 500 CFS?

Craig S. Primis: No, I don't accept that premise. That would involve a reduction in agriculture for sure, which would cost Georgia.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Thank you, Mr. Chief Justice. And good morning, Mr. Primis. I want to pick up on Justice Alito's question with respect to the balancing and the substantially outweigh test that you articulate. You say that the potential benefits must substantially outweigh the harm and that that needs to be shown by clear and convincing evidence, as I understand your argument. And I think one of the big responses is how do you explain New York versus New Jersey, and that's certainly in the briefs and 1 again Mr. Garre today has said, well, if you took that analysis and really applied it in the same way that Georgia's articulating here, then New York versus New Jersey would have come out the other way. So I want to hear whatever you have to say about New York versus New Jersey.

Craig S. Primis: Yes, Justice Kavanaugh, I think I need to revert to one of my earlier answers, which is that there is critical evidence here and I -- I believe substantially more testimony and analysis in this case as to the effect of a decree on the oyster population in Apalachicola Bay, and what it shows is that there is really no benefit, an increase of a maximum of 1.4 percent and, in most cases, less than that. And so we can't say what the Court in New Jersey versus New York would have done if confronted with that additional testimony, but we think that it's a distinction and a dispositive one in this case.

Justice Kavanaugh: Thank you, Mr. Primis.

Chief Justice Roberts: Justice Barrett.

Justice Barrett: Good morning, Mr. Primis. I have a legal question for you. So Special Master Kelly seems to have concluded that a modest injury -- and -- and it, you know, put the injury to Florida from Georgia's actions at about 1.4 percent of a decrease in oyster biomass -- that a modest injury didn't justify an equitable decree, that the injury had to be serious. And I want to know if that's the right legal way to look at it. And I'll -- let me put it to you this way: What if the injury was, in fact, modest, but it would be virtually costless to Georgia to remedy it? Would we still say that that wouldn't justify an equitable decree? So was Judge Kelly right to say that a modest injury doesn't justify an equitable decree?

Craig S. Primis: Well, I -- I think it comes back to the test that requires a substantial invasion of rights of a serious magnitude through the action of another state. And so I don't believe that a modest injury would -- would qualify and would justify this Court's invocation of its extraordinary power under equitable apportionment to intervene. 1 But that's the answer to the legal question. In terms of what was before Judge Kelly, he was also looking at a record where there was inadequate proof of causation and inadequate proof of any benefit to Florida as well.

Justice Barrett: Let me -- I want to follow up on -- it's related to this question, but it follows up on one of Justice Alito's, which was asking you to measure the harm to an ecosystem. So, you know, here, you said earlier that the larger state doesn't always win. And, of course, if we're looking just at the dollar value of Georgia's agricultural industry versus the dollar value of Florida's oyster injury -- industry, we would say, you know, as -- as Judge Kelly did, let's just assume those figures were right, that the benefit -- the cost to Georgia dwarfs the benefit to Florida. But how do we put a price on -- I mean, let's -- let's imagine -- and I know you disagree with this, but let's just imagine that Georgia could take measures that cost less and help Georgia -- help Florida preserve the Apalachicola oysters. How -- how do we put a 1 price on an environmental benefit like that?

Craig S. Primis: Right. Well, that is a difficult question, and the experts at -- at trial debated whether one could put a monetary or economic value on that. Florida never attempted to do so, and so we don't know from their perspective what the answer to that question is. Ultimately, that may pose a difficult issue in a future case, but in a case where there's no benefit and substantial evidence of self-inflicted harm, I -- I -- I would suggest the Court does not need to resolve that here, but, certainly, one could imagine where a -- an ecological harm did rise to a level of substantial invasion of -- of serious magnitude, and in that situation, it would be a -- a much more difficult question. It's just not present here.

Justice Barrett: Thank you, Mr. Primis.

Chief Justice Roberts: A minute to wrap up, Mr. Primis.

Craig S. Primis: Florida has had every opportunity to prove its case. But, after years 1 of discovery and a lengthy trial, it is now clear that Florida's allegations were not based in science or in fact. Instead, Florida's own evidence at trial showed that even draconian caps on Georgia's water use would cause hundreds of millions of dollars in harm to Georgia and yield no benefit at all to Florida or its oysters. Georgia's evidence showed the same. That is not the high equity that warrants relief. The Court set out in detail the questions it wanted answered to evaluate these claims. The answers came back, and they point decisively in one direction: Florida's request for a decree should be denied. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Garre, rebuttal. REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PLAINTIFF

Gregory G. Garre: Thank you, Your Honor. I mean, first, on the question of where does all the water go, Mr. Primis pointed to the Corps. But that's a red herring because all the water going into the system is going to come out 1 of the system eventually. The Corps just controls the timing. So the fact that state line flows have plummeted over time in the recent era is devastating for Georgia. Secondly, he pointed to climate, but that's refuted by the chart on page 6 of our reply, as well as the testimony of Dr. Lettenmaier and Dr. Hornberger. And the most damning thing is that Georgia declined to present its own climate expert at trial, which tells this Court everything. In terms of the consumption models, the U.S. Fish and Wildlife Service and Georgia itself have noted that Georgia's models have systematic errors in undercounting. I'd point you to FX 534 and FX 530. The variations that Mr. Primis pointed to were based on a day-to-day comparison, which is completely irrelevant because those models were designed to -- to examine trends over time. I'd point you to Hornberger testimony at 2012 and Lettenmaier testimony at 2404. On the 1.4 percent oyster mass, that's a red herring too because that dealt with one bar which is further away from the mouth of the 1 river, and the evidence from Glibert and Kimbro and White was that there would be much more pronounced benefits at the mouth of the river and that could reseed the entire bay. On the 500 CFS, eliminating the conditions that precipitated the crash is a huge benefit. And, notably, Mr. Primis has no answer to page -- the chart on page 18 of our reply, which shows how just 500 CFS can do that. And then, as to the cost of the 500 CFS, again, Mr. Primis pointed out that this would reduce irrigation. That's completely false, as his own expert admitted in his cross-examination, Dr. Stavins at 4468. And -- and more damningly, Dr. Stavins admitted, from 4453 to 468, that he didn't consider any of the cost-efficient measures that could be taken at zero to no cost. And so, on this, there's just a dearth of evidence for Georgia. On New Jersey versus New York, the difference here is that in New Jersey they were debating what might happen. Here, we know what has happened. The oysters, one of the most famed oyster fisheries in the nation, have been devastated. 1 The benefits here and the need for a decree are overwhelming, and New York City there would trump anything that Georgia has to offer here. Last, I would say that there's been a lot of debate about what may happen with the decree. But one thing is certain: Without a decree, Georgia will just continue to consume more and more and the Apalachicola will be irreversibly lost. The solution here can't be to do nothing to stop this. Thank you, Your Honors.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:06 a.m., the case was submitted.)