South Carolina v. North Carolina

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Argued October 13, 2009. Decided January 20, 2010.

Authorship: Lyle Denniston of SCOTUSblog and James Bickford of Harvard Law School

Docket: 138 Original

Contents

Briefs and Documents

Decision

Exceptions to the Special Master's First Interim Report overruled in part and sustained in part in an opinion by Justice Alito; Chief Justice Roberts filed a separate opinion concurring in the judgment in part and dissenting in part, joined by Justices Thomas, Ginsburg, and Sotomayor. (January 20, 2010)

Oral Argument

Transcript (October 13, 2009)

Merits Briefs

Amicus Briefs

Opinion Recap

James Bickford originally wrote the following for SCOTUSblog.

In 2007, South Carolina brought an action against North Carolina, asking the Court to equitably apportion the waters of the Catawba River, which flows through both states. South Carolina claimed that its northern counterpart had been diverting more than its fair share. Because this was a conflict between two states, South Carolina invoked the Court’s original jurisdiction and was granted leave to file a complaint. Three parties then attempted to intervene in the suit: (1) the Catawba River Water Supply Project, which is jointly owned by and supplies water to two counties on opposite sides of the state border; (2) Duke Energy, which operates eleven dams and reservoirs on the Catawba, holds a long-term license to draw hydroelectric power from them, and led a multiparty negotiation of the terms under which it would apply to renew that license; and (3) the City of Charlotte, which holds a state permit to divert thirty-three million gallons of water a day from the Catawba. The Court referred both the complaint and the intervention motions to a special master, who issued a report recommending that all three parties be permitted to intervene. South Carolina filed exceptions to the report, and the Court heard oral argument in October.

In an opinion by Justice Alito (joined by the unusual line-up of Justices Stevens, Scalia, Kennedy, and Breyer), the Court allowed the Catawba Project and Duke Energy – but not the City of Charlotte – to intervene in the case. The Court applied the New Jersey v. New York (1953) standard for intervention in original actions: an intervenor whose state is already a party has “the burden of showing some compelling interest” which is “apart from his interest in a class with all other citizens and creatures of the state” and which “is not properly represented by the state.” Rejecting a broader rule which the Special Master had distilled from cases in which nonstate parties participated as defendants, as well as cases in which they intervened, the Court noted that, “a compelling reason for allowing citizens to participate in one original action is not necessarily a compelling reason for allowing citizens to intervene in all original actions.”

In this case, the Court reasoned that because the Catawba Project was owned by and supplied water to one county in each state, drawing upon authority conferred by both states, it had satisfied its burden of showing an interest apart from that of other “citizens and creatures of the state.” And because both states are likely to take positions that would reduce the water available to the Project – South Carolina attributes some of its alleged harm to diversion by the Project, while North Carolina has conceded that it cannot represent the interests of that joint venture – the Project had shown that it was not properly represented by either state.

Duke Energy, the Court continued, had similarly met its burden. Here Justice Alito emphasized the “flexible process by which we arrive at a just and equitable apportionment of an interstate stream,” a task in which “there is no substitute for the exercise of an informed judgment.” Having overseen the complex negotiation of the terms of its federal license to generate hydroelectric power, Duke Energy, the Court concluded, possessed considerable expertise. Moreover, “any equitable apportionment of the river will need to take into account the amount of water that Duke Energy needs to sustain its operations and provide electricity to the region.” Thus, Duke Energy had demonstrated compelling interests which the two states (neither of which was a party to the licensing negotiations) would not adequately represent.

By contrast, the Court held that the interests of the City of Charlotte fall “squarely within the category of interests with respect to which a State must be deemed to represent all of its citizens.” “Respect for ‘sovereign dignity,’” the Court explained, “requires us to recognize that North Carolina properly represents Charlotte in this dispute over a matter of uniquely sovereign interest.”

The Chief Justice – joined by Justices Thomas, Ginsburg, and Sotomayor – concurred in the Court’s denial of Charlotte’s motion and its rejection of the more permissive intervention standard adopted by the Special Master. However, those four justices would not have permitted the Catawba Project and Duke Energy to intervene either. The dissent reasoned that the Court’s original jurisdiction should be limited to “high claims affecting state sovereignty”: “disputes so serious that they would be grounds for war if the States were truly sovereign.” Moreover, “practical realities” render the Court “not well suited to assume the role of a trial judge.”

In particular, the Chief Justice’s dissent emphasized that the Court had never before allowed a nonstate entity to intervene in an equitable apportionment action “because the apportionment of an interstate waterway is a sovereign dispute.” By contrast, “a private entity’s interest in its particular share of the State’s water . . . is an ‘intramural dispute’ to be decided by each State on its own.” The Chief Justice further suggested that the “Special Master, and through her the Court, can have the benefit of the views of those seeking to intervene by granting them the status of amici curiae.”

Pre-Argument Articles

Grant Write-Up

Lyle Denniston originally wrote the following for SCOTUSblog.

The Court said it would hear oral argument, presumably at its next Term, on a report by a Special Master on the pending dispute between the two Carolina states (South Carolina v. North Carolina, 138 Original) over water flows in the Catawba River. The report by Special Master Kristin Linsley Myles is an interim recommendation that the Court allow non-state parties to join in an Original case as intervenors. Thus, it does not deal with the merits of the controversy over dividing up allotments of the Catawba’s waters. The dispute over intervention is sufficiently significant that the U.S. Solicitor General has joined in the case as an amicus. The Court allowed South Carolina to file its lawsuit on Dec. 1, 2007.

When one state sues another directly in the Court rather than starting the case in a lower trial court — a maneuver the Constitution allows in a special category of so-called “Original” cases — who else can join in? That is the issue that the Court said it would consider at a hearing in South Carolina v. North Carolina (138 Original), probably in the new Term that starts Oct. 5.

At the core of the controversy is a basic question of whether states are going to be allowed to speak for the interests of their own citizens — the people, the local governments, and the companies that exist within their own borders.

In most cases, a plea by an outsider to a lawsuit to get involved — that is, technically, to intervene — is a mundane matter of little interest beyond the specific dispute. But the Carolinas’ case has stirred up a dispute over that procedure, and it has drawn in the U.S. government, arguing that the Court should not dilute the representative capacity of states by too readily allowing those who are not states to assert their own interests separately in an Original case.

In a brief filed last month, the U.S. Solicitor General joined South Carolina in resisting a recommendation by a Special Master who is processing the case to allow the city of Charlotte, N.C., plus an interstate water supply organization and a hydroelectric power company, Duke Energy Carolinas, to enter the case as parties. Special Master Kristin Linsley Myles, in a report formally filed in January, urged the Court to allow all three to intervene. It is that report, an interim recommendation in this water-sharing dispute, that the Court will consider at oral argument.

The Special Master sought to craft a rule on participation that would apply to most if not all Original cases filed in the Court. But the Solicitor General ridiculed the suggestion as “a single, one-size-fits-all rule” that would apply not only to cases involve disputes over river-sharing, but to “any other subject,” and that goes too far to allow outsiders in.

The government lawyers argued that the proposed approach to intervention ”does not take adequate account of the special sovereign interests that are stake” in a dispute between states over uses of the waters of a river that runs through each of them and from which each draws water for its citizens’ use. While the brief focuses on intervention in such a water apportionment controversy, and finds the Special Master’s approach particularly troublesome in that context, the filing also amounts to a fervent argument for caution in allowing parties other than states themselves to take a direct part as the Court tries interstate lawsuits.

Because of the breadth of the underlying constitutional question, it would be no surprise if the case were to draw a number of friend-of-court briefs.

Here is the background on the case and the intervention dispute:

The Catawba River has its headwaters in the Blue Ridge Mountains of North Carolina, and flows on into South Carolina through a lake and tributary rivers for 440 miles before emptying into the Atlantic Ocean at the mouth of what is then named the Santee River. The river is a significant source of water to both states, but both states suffer declines in their volume of water available during times of drought.

South Carolina, complaining that North Carolina was taking more than its equitable share out of the Catawba, sued its neighbor directly in the Supreme Court in January 2007. It asked the Court to divide up the river’s flows between the states. North Carolina, it asserted, has allowed transfers of the Catawba’s waters of at least 48 million gallons per day, thus reducing South Carolina’s portion.

The Court allowed the suit to go forward on Oct. 1 of that year. As usual, rather than trying the case before the bench itself, the Court picked a Special Master — San Francisco attorney Myles – to recommend a decision on water allocation.

Along the way, the city of Charlotte, among the largest consumers of water transferred from the Catawba, sought to enter the case to represent its own interests. So did the Catawba River Supply Project, a group formed by two counties — one on each side of the states’ border — to transfer Catawba waters, also moved to intervene, as did the Duke Energy companies, which operates Lake Wylie into which the Catawba flows at the states’ border.

Myles examined a wide array of the Court’s prior Original cases, and fashioned a general rule on intervention for parties other than states. The proposal would allow intervention for an entity carrying out the state function that is at issue, an entity with an independent property interest that is implicated by the dispute, an entity that otherwise has a “direct stake” in the outcome, of an entity whose participation would help bring out the issues fully.

Each of the three would-be intervenors satisfied that rule, Myles concluded. The city of Charlotte’s access to the volumes of water it has been getting is directly challenged in the lawsuit, the Special Master said. The two-county project is also targeted in South Carolina’s lawsuit, and the Duke hydroelectric company’s river operations would be directly affected since the dams it operates controls the flow of the river waters and their release, Myles said.

The state of South Carolina objected to the interventions, and has now drawn the U.S. government’s support. The Myles proposal, the Solicitor General argued, breaks with the standard that the Court has laid down for water allocation disputes between states — that it, “an intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly presented by the state.”

None of the three seeking to be a part of the Catawba controversy, the government brief said, can meet that standard: “They have the same interest as everyone in the Catawba River Basin who hopes to draw water from the river,” it said.

The Court now has filings on the issue from all sides, and thus is not expected to call for additional briefing before the oral argument.

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