January 20, 2010

Supreme Court Decides South Carolina v. North Carolina

On January 20, the Supreme Court decided South Carolina v. North Carolina, No. 138, Orig., allowing two parties to intervene in the dispute between the States, but denying that privilege to the city of Charlotte, North Carolina.

In the underlying original action, South Carolina sought an equitable apportionment of the Catawba River. Three nonstate entities sought to intervene in the dispute: the Catawba River Water Supply Project; Duke Energy Carolinas, LLC; and the city of Charlotte, North Carolina.

The Special Master recommended allowing intervention by all three entities, but the Supreme Court granted only the first two and denied the other. The governing standard, held the Court, was established by New Jersey v. New York, 345 U.S. 369, 373 (1953) (per curiam), which requires "[a]n intervenor whose state is already a party" to "show[] 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 represented by the state." This is a "high" standard, and deservedly so, given the Court's primary responsibility as an appellate tribunal, its reluctance to serve as a fact finder, and due respect for the States' sovereign dignity.

Applying this standard, the Court held that the Catawba River Water Supply Project was entitled to intervene because it was properly a bi-state entity, serving the residents of one county in South Carolina and one in North Carolina with water from the Catawba River, and thus could not be properly represented by either state.

Duke Energy, which operates 11 dams and reservoirs in both States that generate electricity and control the flow of the river under a license from the Federal Energy Regulatory Commission, likewise met the standard because it had unique interests under its federal license.

The city of Charlotte, however, did not meet the standard for intervening because its interests fell within the same class as other affected users of water in North Carolina. As an entity solely internal to North Carolina, North Carolina was deemed to represent it.

Justice Alito delivered the opinion of the Court, in which Justices Stevens, Scalia, Kennedy, and Breyer joined. Chief Justice Roberts filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Thomas, Ginsburg, and Sotomayor joined.

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