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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Oyster men in Florida and farmers in Georgia have been

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Speaker 1: locked in a bitter argument over shared river resources for decades,

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Speaker 1: and that battle reached the Supreme Court. The oyster men

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Speaker 1: of Appalachicola Bay already lived with the upheaval that the

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Speaker 1: Georgia farmers fear their fishery collapsed in twelve amid persistent

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Speaker 1: drought and low water flow conditions. Florida's attorney, former Solicitor

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Speaker 1: General Gregory gar asked, the justice is to camp Georgia's

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Speaker 1: water use of a shared river basin. It's hard to

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Speaker 1: imagine New England without lobsters, or say the chestd without crabs.

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Speaker 1: But in effect that the future that Appalachicola now faces

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Speaker 1: when it comes to its oysters and other species. But

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Speaker 1: Chief Justice John Roberts wondered how to figure out who's

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Speaker 1: responsible for the collapse of the fishery. The situation is

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Speaker 1: like that on murder on the Orient Express. A lot

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Speaker 1: of things took a stab at the fishery drout over harvesting,

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Speaker 1: Florida regulatory policies, but also lower saluinity that was caused

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Speaker 1: by George's use of the water. But you can't say

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Speaker 1: that any one of those things is responsible for for

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Speaker 1: killing the the fishery. The questions of other justices, like

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Speaker 1: New Justice Amy Coney Barrett focused on the cost versus

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Speaker 1: the environmental benefits. Let's just imagine that Georgia could take

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Speaker 1: measures that cost less and helped Georgie help Florida preserve

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Speaker 1: the appalachic coal oysters. How do we put a price

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Speaker 1: on an environmental benefit like that? Joining me is Ryan Roeberry,

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Speaker 1: a professor at the Georgia State University College of Law.

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Speaker 1: Ryan some have called this a David versus Goliath fight.

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Speaker 1: I mean David versus Goliath in the sense that David

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Speaker 1: would be sort of the appalachic Cola Bay oysterman and

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Speaker 1: the oyster fisheries in the Appalachicola Bay, and the goliath

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Speaker 1: in the room is sort of all of the Georgia

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Speaker 1: agricultural industries that draw water from these rivers. So if

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Speaker 1: you look at it just myopically in those two cents,

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Speaker 1: yet it is a David and Golias kind of situation.

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Speaker 1: This dispute has been going on for decades. Explain it

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Speaker 1: to us, well, the dispute is simply Florida is claiming

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Speaker 1: that Georgia agricultural interests so farms are using too much water.

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Speaker 1: And when they're using too much water, that water is

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Speaker 1: not crossing the border into Florida and going down into

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Speaker 1: the Appalachicala Bay, which is where the oysters are, and

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Speaker 1: as a result, if not enough water, the oysters are suffering.

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Speaker 1: Florida's attorney told the Justice is that denying relief would

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Speaker 1: be a death sentence for Appalachic Cola. How So, for

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Speaker 1: the appalachic Cola Bay region, oysters and marine life, they

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Speaker 1: have been part and parcel of that region for you know,

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Speaker 1: several hundred years, So for that particular region it is

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Speaker 1: very important. But there has been a drastic reduction in

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Speaker 1: the numbers of oysters being pulled out of Apeletic Coal

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Speaker 1: Bay and just less than a decade. I think the

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Speaker 1: real challenge here is why, you know, is it due

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Speaker 1: to a lack of water? Is it a question of

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Speaker 1: over harvesting of oysters? Explain what the arguments of the

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Speaker 1: two states are here. Well, the argument from Florida side

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Speaker 1: is that essentially Georgia farmers are being wasteful with their water,

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Speaker 1: that you have some farms that are not being permitted

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Speaker 1: that are irrigating. You have other farms that are perfectly

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Speaker 1: fine and they are permitted, but they are not irrigating

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Speaker 1: properly or you know, using good conservation measures, and as

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Speaker 1: a result, less water is coming down the river and

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Speaker 1: into Florida. Georgia, on the other hand, would say that

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Speaker 1: they have been using conservation measures to a great degree,

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Speaker 1: and that one of the challenges is hydrological modeling is

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Speaker 1: so imprecise about where all the water is going and

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Speaker 1: how much water is going down that really it's not

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Speaker 1: a question of Georgia farmers using too much water. It's

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Speaker 1: really a question of how much water is the Army

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Speaker 1: Corps of Engineers who controls the dams and sort of

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Speaker 1: the flow of water, how much water should they be

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Speaker 1: letting out at any one time. We're not sure what

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Speaker 1: the root causes are of the lack of water from

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Speaker 1: Florida's side. Georgia says it's not just them, that Floria

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Speaker 1: bears some of the burden of this as well, and

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Speaker 1: that was one of the challenges the justices we're dealing with,

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Speaker 1: was this conflicting evidence. This was at the court previously

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Speaker 1: explain what happened last time it was at the court.

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Speaker 1: Let's been at the core multiple time and this is

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Speaker 1: a multi decade sort of piece of litigation. Last time

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Speaker 1: at the Court there was a real question about what

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Speaker 1: it was the role of the Army Corps of Engineers,

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Speaker 1: which is sort of the federal agency that controls the

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Speaker 1: dams along these rivers and the flows of water. And

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Speaker 1: the real question was what was the role of the

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Speaker 1: Army Corps of Engineers and ensuring enough water across the border.

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Speaker 1: The Special Master from last time, Special Master Lancaster left

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Speaker 1: open this question of harm, which was was George's lack

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Speaker 1: of conservation measures? Were they somehow harming Florida. And that's

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Speaker 1: the question that really came to like this time, was

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Speaker 1: that Florida says that Georgia is harming them, and that

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Speaker 1: the benefits of an apportionate decree or deciding on a

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Speaker 1: number or amount of water that should cross the border

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Speaker 1: that at outweighs the harms that Georgia would suffer by

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Speaker 1: the Court creating such a decree. Chief Justice John Roberts

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Speaker 1: compared this to the Agatha Christie murder on the Orient Express,

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Speaker 1: but he's actually used it before if you go back,

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Speaker 1: I mean, his question was all about causation. Florida claims

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Speaker 1: Georgia is the primary cause behind there be having a

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Speaker 1: lack of water, and so he was saying, causation is

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Speaker 1: a very tricky thing, and there can be multiple contributing

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Speaker 1: factors to a cause. And much like murder on the

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Speaker 1: Orient Express where there were multiple stab wounds by all

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Speaker 1: these different people, how can you say that Georgia is

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Speaker 1: the primary cause here of the lack of water versus

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Speaker 1: other types of reasons such as evaporation, maybe a lack

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Speaker 1: of conservation techniques on the part of Florida. So how

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Speaker 1: can we really get to the point of saying Georgia

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Speaker 1: is the cause? And if therefore, if we deal with Georgia,

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Speaker 1: will actually deal with the issue. Was there a concern

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Speaker 1: that all the justices shared, Yes, I mean one of

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Speaker 1: the things that were all concerned with is how do

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Speaker 1: you weigh how do you balance the cost and benefit?

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Speaker 1: So the legal argument here is that the bent Florida

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Speaker 1: that have bears the burden of proof. They need to

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Speaker 1: prove that the benefits of a decree would outweigh the harms.

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Speaker 1: And so the justices were trying to drill down on

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Speaker 1: how do you determine a cost benefit analysis? Is it

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Speaker 1: purely just economics? Is it how much do Georgia farmers

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Speaker 1: produce versus the applectic colabay oysterman or what about the

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Speaker 1: ecosystem services that are involved in keeping epiplectric coal of

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Speaker 1: a healthy and thriving How do cost benefit analyzes work

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Speaker 1: in a situation like this? And there was a lot

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Speaker 1: of unsettlement I feel about that, and and they're trying

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Speaker 1: to flesh out how would it cost benefit analysis work

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Speaker 1: in a case like this. The downstream state usually has

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Speaker 1: a high burden, doesn't it correct? What's the burden on Florida? Here?

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Speaker 1: Clear and convincing evidence, and it's not really the downstream state,

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Speaker 1: So it's the state that's suing, and that would be

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Speaker 1: Florida in this case. So they had to prove by

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Speaker 1: clear and convincing evidence that again the benefits that would

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Speaker 1: accrue to them substantially outweigh the harm that any decree

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Speaker 1: that the Supreme Court put in place with would harm Georgia.

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Speaker 1: And that is a very tough burden to prove. And

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Speaker 1: just from my basic read is I don't think Florida

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Speaker 1: proved it. I do think there's some methods that Georgia

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Speaker 1: could use to conserve more water. But I don't think

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Speaker 1: that Florida was able to definitively say well, yes, this

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Speaker 1: is Georgia, and here is why. Because of all of

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Speaker 1: these conflicting pieces of evidence that the Justice has pointed

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Speaker 1: out in Supreme Court issued a five to four decision

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Speaker 1: giving Florida another chance to make its case under a

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Speaker 1: looser legal standard. So now you have two new justices

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Speaker 1: in the mix, Brett Kavanaugh and Amy Coney Barrett. What

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Speaker 1: did you hear from them during the arguments? Well, Kavanaugh's

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Speaker 1: questions were really about the cost and benefit analysis, since

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Speaker 1: that's those sort of the legal standard is the cost

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Speaker 1: benefit analysis? How do you determine what goes into that calculus?

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Speaker 1: M Barrett Her question was somewhat related, but it's a

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Speaker 1: question of harm. You know, how do we calculate ecosystem harms?

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Speaker 1: It's not just about oysters, but it's also about something

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Speaker 1: broader than that. Again, this whole question of cost benefit

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Speaker 1: analysis and what are the factors that go into those

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Speaker 1: variables that will get you the answer? Those are the

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Speaker 1: undecided question and so I don't think they tipped their

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Speaker 1: hand in any way. At the end of the day,

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Speaker 1: I think they're really struggling through a very difficult, complex

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Speaker 1: question of what values do we consider valuable enough to

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Speaker 1: protect and what values not. It seems like it would

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Speaker 1: be a surprise if Florida one this That's my read

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Speaker 1: from everything I can see at this point, it would

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Speaker 1: be a surprise to me if Florida were to winness

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Speaker 1: as well. I just didn't see enough evidence, and a

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Speaker 1: lot of the evidences the justices pointed out was conflicting.

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Speaker 1: And so now what do justices do with scientific evidence

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Speaker 1: that is conflicting, you know, should they act more conservatively

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Speaker 1: or proactively? And so I tend to think Florida will

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Speaker 1: probably not win this case. Another high stakes water dispute

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Speaker 1: is advancing in the Supreme Court between Mississippi and Tennessee.

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Speaker 1: Do you think that with climate change, we're going to

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Speaker 1: see more of these water disputes in the future. I

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Speaker 1: think in the next ten to twenty years. And that's

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Speaker 1: the other piece of the issue is if the court

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Speaker 1: sets an apportionment decree, will the numbers? So apportionment essentially

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Speaker 1: means a certain amount of number must flow across the borders.

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Speaker 1: Will those numbers change in ten to twenty years, and

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Speaker 1: do these numbers make sense or do we need a

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Speaker 1: more flexible mechanism to deal with water flow between states.

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Speaker 1: I would venture to say in the next ten to

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Speaker 1: twenty years you will see more Eastern state water dispute

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Speaker 1: than you have hitherto seen because of climate change. Aside

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Speaker 1: from the legalities, it's quite sad to see what's happened

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Speaker 1: to Apalachicola. Yeah, no, I mean, I've been to Appalachricola

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Speaker 1: several times. It's absolutely gorgeous, and it is an unbelievable

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Speaker 1: estuary and incredibly productive. And I think the real question

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Speaker 1: here is water conservation and water management. This is something

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Speaker 1: that has been dealt with in the West a lot

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Speaker 1: more than the East, because the West, that's where I

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Speaker 1: come from, the West has water scarcity built in because

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Speaker 1: of its desert climates. The East relies on a reasonable

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Speaker 1: youth standard, which has never really been problematic when it rains.

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Speaker 1: And now we're getting to a point of climate uncertainty,

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Speaker 1: and so I think it really comes down to now

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Speaker 1: more stringent and effective water management technique. So I don't

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Speaker 1: believe necessarily the bay will dry up and disappear, but

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Speaker 1: it does probably mean some change in water regulation. Thanks Ryan.

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Speaker 1: That's Ryan Roeberry, professor of the Georgia State University College

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Speaker 1: of Law. As a growing number of cities passed mandates

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Speaker 1: for hikes and pay for frontline workers due to COVID nineteen,

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Speaker 1: big grocery store chains are wielding largely untested legal arguments

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Speaker 1: to fight the pay hikes. Joining me is Aaron mulvaney,

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Speaker 1: senior legal reporter at Bloomberg Law. Aaron tell us about

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Speaker 1: these hazard pay laws. So as COVID nineteen kind of

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Speaker 1: spread across the United States, a lot of retail um

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Speaker 1: companies initially in their early days of the pandemic, UM

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Speaker 1: offered a pay boost to their workers who are kind

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Speaker 1: of on the front lines, like you know, your grocery

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Speaker 1: store clerks and things like that, And so that actually

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Speaker 1: kind of papered off towards the middle of the summer,

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Speaker 1: you know, that was kind of being pulled back a

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Speaker 1: little bit by some of the stores um not across

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Speaker 1: the board, but just then recently this this year, there

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Speaker 1: has been a string of cities that have passed mandates

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Speaker 1: for certain stores to do pay the the workers in

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Speaker 1: the front lines and so that is different because it's

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Speaker 1: not a voluntary thing that the stories are doing. But

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Speaker 1: these local governments, mostly in California, but um the other

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Speaker 1: big city, I would know if the Seattle have been

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Speaker 1: passing these mandates to pay UM workers more. Are these

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Speaker 1: just for a certain time until the pandemic ends? I mean,

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Speaker 1: what are the sort of terms of the laws? Right?

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Speaker 1: The laws do vary um in these kind of local

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Speaker 1: governments because they're all you know in different city UM

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Speaker 1: city councils or passing them. So they kind of range

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Speaker 1: between either between four and five dollar pay boost and

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Speaker 1: some are pretty broad like in Seattle it's until the

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Speaker 1: end of COVID nineteen is what it says, and in

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Speaker 1: other cities in California it could be a hundred and

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Speaker 1: twenty days a d eight days UM, So they kind

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Speaker 1: of vary um how long they last. Grocery stores supposedly

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Speaker 1: are doing very well during the pandemic. Is there an

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Speaker 1: element of their doing well they can pay their workers

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Speaker 1: more well? That would definitely be an argument that a

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Speaker 1: lot of the workers and that our union representatives would

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Speaker 1: make that the grocery stores have done so well and

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Speaker 1: you know, um sided record profits UM during the pandemic,

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Speaker 1: and so they should be able to pay to people

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Speaker 1: who are kind of putting their lives at risk and

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Speaker 1: getting sick. And you know, there have been a there

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Speaker 1: have been a large number of infections in the food industry.

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Speaker 1: So I think that's kind of a backdrop here for

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Speaker 1: why these cities kind of thought that this was an

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Speaker 1: appropriate thing to do for these workers. So who's suing

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Speaker 1: and what are the allegations. So that's where it gets

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Speaker 1: kind of specific because these these ordinances, I should say,

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Speaker 1: mostly target large grocers. So grocery associations are driving the

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Speaker 1: lawsuits filed against the mandates themselves because they have a

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Speaker 1: couple of arguments. They argue that, first of all, equal

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Speaker 1: protection under the law. They aren't being treated the same

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Speaker 1: as other, um, other types of industries and other types

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Speaker 1: that are also kind of putting frontline workers on the line.

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Speaker 1: And and of course they do vary, you know, in

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Speaker 1: some cases, pharmacies are targeted in some cases and farm

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Speaker 1: workers are targeted under these mandates, but it really is

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Speaker 1: directed mostly at the grocery chain and we're and it's

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Speaker 1: also interesting because there's the other thing there, these lawsuits,

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Speaker 1: and I use the term lawsues very broadly because they

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Speaker 1: all are filed by the same group for the most part,

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Speaker 1: and they have very similar allegations. And the other allegations

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Speaker 1: besides equal protection, is that they're saying that the federal

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Speaker 1: law that governs kind of negotiations between union and businesses,

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Speaker 1: the National Labor Relations that they're saying that that should

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Speaker 1: pre empt the states from interfering and giving um and

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Speaker 1: when I say states, these cities from interfering and giving

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Speaker 1: pay booth to these workers, because that should be something

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Speaker 1: that's negotiated between the union and the business itself. Well, well,

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Speaker 1: let's talk about the union. What has the union's role

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Speaker 1: been in these laws since they've mostly been happening in California,

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Speaker 1: I can say that we they had a pretty fierce negotiation.

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Speaker 1: They were kind of talks, you know, in that summer

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Speaker 1: months where they were kind of looking for better pay

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Speaker 1: for their workers with um, the grocery chains and trying

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Speaker 1: to get some of these hazard pay um these hazard

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Speaker 1: pay bonuses in the for the workers without a mandate,

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Speaker 1: without a global government. And then they shifted gears and

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Speaker 1: they started lobbying local governments to mandate the hazard pay.

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Speaker 1: So the union officials have openly said that, you know,

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Speaker 1: they kind of shifted their resources and efforts to kind

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Speaker 1: of pushing for the local governments two to mandate the

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Speaker 1: pay What is the allegation of damages in these lawsuits?

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Speaker 1: While the grocery associations essentially want the hazard pay ordinance

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Speaker 1: to be ruled on constitutional and to stop UM the

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Speaker 1: governments from passing these ordinances because they are kind of

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Speaker 1: catching fire around UM California UM for example, there's unpropposed

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Speaker 1: in l A, which would be a huge UM, a

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Speaker 1: huge thing for for pay and grocery workers and a

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Speaker 1: lot of costs for the businesses. Legal experts when you

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Speaker 1: talked to what are they saying about the allegations and

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Speaker 1: do they have a good case? The legal experts say

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Speaker 1: that these are difficult arguments to make. But what's interesting

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Speaker 1: is there there's somewhat novel arguments because they it's not

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Speaker 1: unheard of that a business would challenge a local government

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Speaker 1: UM for something like this when, for example, like the

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Speaker 1: minimum wage ordinance and Seattle was charged when that was

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Speaker 1: the first big fifteen dollar minimum wage hike in the

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Speaker 1: country in two thousands, UM fourteen, and you know that

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Speaker 1: was challenged. But this is kind of This is different

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Speaker 1: because it would it would test this question mostly about

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Speaker 1: the National Labor Relations Act and its power UM over

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Speaker 1: city government's decisions because and whether it can interfere with

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Speaker 1: these kind of union talks UM. And I think the

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Speaker 1: hurdle is very high for the equal protection you know,

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Speaker 1: whether it's fair or not for retail stores to be

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Speaker 1: targeted for example. UM. The legal experts I talked to

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Speaker 1: you who represent employers mostly say that it really is

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Speaker 1: a pretty steep, a difficult argument to make because a

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Speaker 1: lot of courts will defer to the local governments themselves

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Speaker 1: to be the ones who make the decisions about what's

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Speaker 1: best for the law. And so I think what's the

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Speaker 1: most untested is the battle between UM, the unions and

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Speaker 1: the businesses and how powerful that is. So maybe you know,

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Speaker 1: one lawyer told me, for example, that maybe the unionized

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Speaker 1: workers who are getting this tap ump or the one

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Speaker 1: are in those cases that's where the argument is the strongest,

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Speaker 1: but it's very untested. So they were acknowledging that we

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Speaker 1: don't really know what courts will do. Here are most

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Speaker 1: grocery workers unionized. The union is pretty strong in California.

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Speaker 1: I I don't know the percentage of workers they're unionized,

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Speaker 1: but they they do represent you know, thousands of workers

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Speaker 1: in California and in Washington, those are pretty strong union states.

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Speaker 1: Talk about the equal protection. These laws have only targeted

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Speaker 1: groceries retail chains. Many of them are targeted to large

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Speaker 1: grocery stores specifically, but there are a few ordinate They

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Speaker 1: all vary, of course, because they're you know, passed by

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Speaker 1: these individual local governments. A few do target UM other

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Speaker 1: industries as well, including pharmacies. UM. One city boosted hazard

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Speaker 1: pay for farm workers, but but yet large grocery stores

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Speaker 1: are the main target here. Yeah, I'm just I'm curious

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Speaker 1: as to why other essential workers, you know, you mentioned

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Speaker 1: farm workers and why they haven't been targeted for these

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Speaker 1: kinds of laws, right right. I think that that's what

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Speaker 1: the Grocery Association UM is arguing as well, and they

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Speaker 1: point to UM pretty high minimum wages and kind of

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Speaker 1: average pay for these workers, and you know, this would

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Speaker 1: represent a pay bump, and they pretty much say that

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Speaker 1: the reason is that the union lobby, the grocery union

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Speaker 1: lobbied UM for this change, and so UM, it's not

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Speaker 1: clear to me why some places UM I thought that

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Speaker 1: this was the most appropriate area to douce, you know,

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Speaker 1: but I think that the union itself points to infections

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Speaker 1: and depths in the food industry. Um. But you make

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Speaker 1: a good point because I think a lot of those

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Speaker 1: have come from the neat packing plants as well, and

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Speaker 1: and those kind of industries, and they weren't necessarily targeted

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Speaker 1: in these ordinances so far. It's interesting because you know,

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Speaker 1: you have the n l RB argument, but you have

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Speaker 1: the union that caused laws to be passed, and so

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Speaker 1: it seems like like the whole area is a model

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Speaker 1: sort of right. It's it's interesting because I actually read

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Speaker 1: the lawsuit at first and was a little confused. But

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Speaker 1: the the National Labor Relations Act is a neutral law.

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Speaker 1: It's not necessarily pro worker. It's it's supposed to just

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Speaker 1: govern the the activity between businesses and unions. But I

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Speaker 1: did have one lawyer who, um, who said, it's interesting

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Speaker 1: to see, you know, these businesses leveraging a union law

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Speaker 1: against unions. Essentially, it's to your point. Um. So another

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Speaker 1: interesting thing is, I mean, lawsuits take a long time,

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Speaker 1: and hopefully the pandemic will be over, but will it

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Speaker 1: be over before the lawsuits end? Well? That that is

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Speaker 1: why I think a lot of these lawsuits are pushing

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Speaker 1: for um emergency measures, which you do, you act quicker

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Speaker 1: than the typical lawsuits where they're filing um injunctions, which

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Speaker 1: are asking courts to kind of weigh in quickly, and

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Speaker 1: like you said, because of you know, the from their perspective,

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Speaker 1: the the quick turnaround they need to stop the law

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Speaker 1: from taking effects. Do you have any idea when we'll

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Speaker 1: hear about the first injunction? Is it coming up soon?

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Speaker 1: There are some hearings in some of the first courts

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Speaker 1: that have had these lawsuits, so we'll find out pretty

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Speaker 1: soon how works they're going to them. Thanks Aaron. That's

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Speaker 1: Aaron mulveney, senior legal reporter at Bloomberg Law. And that's

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Speaker 1: it for this edition of The Bloomberg Law Show. Remember

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Speaker 1: you can always get the latest legal news on our

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Speaker 1: Bloomberg Lawn podcast. You can find them on Apple Podcasts,

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Speaker 1: Spotify and at www dot Bloomberg dot com, slash podcast

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Speaker 1: Slash Law. I'm June Grosso. Thanks so much for listening.

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Speaker 1: This is Bloomberg