Private parties intervene in water dispute

By Anna Christensen
on Jan 26, 2010 at 11:05 am

Below, James Bickford of Harvard Law School recaps the Court’s opinion, handed down on Wednesday, in South Carolina v. North Carolina, an original jurisdiction case.  (Disclosure: Akin Gump represented the Catawba River Supply Project, which sought to intervene in the proceedings, but James was not involved in the case.)

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.

Last week, 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.”