Legal fees add up in tri-state water litigation

Legal fees add up in tri-state water litigation

March 26th, 2012 Jeffry Scott/Cox Newspapers in News

The exposed lake bottom on Lake Lanier in Flowery Branch, Ga., is visible in this 2007 file photo.

Photo by Associated Press/Times Free Press.

ATLANTA -- As lawyers speculate whether the U.S. Supreme Court will decide this summer to hear the tri-state water wars case between Florida, Georgia and Alabama, they don't stand idle -- and the meters haven't stopped running.

So far, the state of Georgia and the Atlanta Regional Commission have spent about $18.7 million in outside legal fees in the two-decades-long water wars negotiating and litigating to preserve metro Atlanta's access to drinking water from Lake Lanier.

It's spending the state and local communities have always viewed as critical to protecting the area's economic viability, as a shortage of drinking water, by some estimates, would cost the local economy billions annually.

"When you talk numbers of that magnitude, spending 15 or 20 million dollars to defend against these lawsuits, those numbers are dwarfed by what losing would look like," said Nels Peterson, the Georgia attorney general's counsel for legal policy.

The bulk of the $8.5 million in fees Georgia has paid to outside attorneys has gone to the Atlanta firm of Mc-Kenna Long & Aldridge. The bulk of the $10.3 million in legal fees ARC and five water agencies joining it in the suit have paid in legal fees has gone to Atlanta firm King & Spalding.

The state and ARC have split the $1.3 million paid lead attorney, Seth Waxman, and his Washington, D.C., firm, WilmerHale, since they joined the case in 2009. Of that, Georgia paid about $680,000, and the ARC and six metro water authorities paid about $600,000.

Waxman argued and won the case before a three-judge panel of the 11th Circuit Court of Appeals last summer that overturned a July 2009 decision by Senior U.S. District Judge Paul Magnuson of the District of Minnesota that would have cut off metro Atlanta's access to Lanier's water supply. That ruling said the U.S. Army Corps of Engineers, which manages the lake, doesn't have the authority to manage it as a water supply.

The judges ruled unanimously that the Army Corps of Engineers has authority to allocate additional water from Lake Lanier, and gave the Corps a year to come up with that plan. Florida and Alabama tried to appeal again to the 11th Circuit, but the court last September refused to hear it.

In February, Florida and Alabama appealed to the U.S. Supreme Court. Now, with the meters running, ARC attorneys are preparing a brief to argue against that. The deadline for that brief is April 20, said Patricia Barmeyer, King & Spalding's lead attorney.

Barmeyer, who has been on the case since 1999, said the state has no choice but to defend itself after Alabama fired the first shot filing a federal lawsuit against Georgia in 1990.

She says no matter what the outcome of this portion of the case -- if the Supreme Court agrees to hear the case or not, hears it and rules for or against Georgia -- years of litigation lie ahead. Too many legal issues remain unresolved.

"This litigation is far from concluded," Barmeyer said. "Phase two of the case on endangered species, which the court ruled in our favor, has been appealed to the 11th Circuit, and that's been stayed for now. But it's not going away."

Florida contends in that phase of the case that low river flows from the Chattahoochee, which feeds the Apalachicola River, threaten a number of endangered species and that is a result of the U.S. Army Corps of Engineers' management of reservoirs along the Chattahoochee, including Lanier, that control the water flow.

Georgia argues the Corp is not violating the Endangered Species Act.

Attorneys arguing for Georgia and ARC's doubt the Supreme Court will hear the Corp's management of Lake Lanier phase of the case because opinion wasn't divided in the 11th Circuit ruling. When 11th Circuit judges last September rejected the request by Alabama and Florida to rehear the case, the vote was 10-0, against -- and three of the judges were from Florida, and two from Alabama.

ARC attorney Lewis Jones, of King & Spalding, said the case is also so "fact specific" that the Supreme Court is unlikely to hear it because a decision about Lake Lanier wouldn't have a wider impact.

The total legal costs of fighting a battle that's raged 22 years is almost incalculable because many attorneys involved are on staff in state employ. But thousands upon thousands of staff hours have likely been spent on the case. The AG's office only has records going back to 2009 on the amount of time staff attorneys have spent on water litigation. They total almost 1,000 hours.

After Judge Magnuson's ruling, then-Gov. Sonny Perdue commissioned a group to study water and its importance to the state and metro Atlanta.

The study found that if the Magnuson ruling stood the adverse economic impact on metro Atlanta -- not including housing values -- would be between $20 billion and $39 billion a year.