Supreme Court Grants Intervention in Equal Apportionment Case

    The U.S Supreme Court held on January 20, 2010 that private parties may intervene in a suit brought between two states over the equitable apportionment of an interstate river. The case concerns a suit brought by South Carolina in 2007 against North Carolina alleging that the defendant state had authorized upstream transfers of water from the Catawba River basin that exceed North Carolina’s equitable share of the river. The Catawba River begins in North Carolina but flows in a generally southeasterly direction and forms part of the border between the two states in the metropolitan area of Charlotte. The river has been significantly dammed to provide a water supply for the urbanized areas of the two states and for hydroelectric power. 

    The dispute arose over a North Carolina statute under which that state has granted withdrawals of water from the Catawba to several North Carolina municipalities. South Carolina brought the suit under the infrequently used original jurisdiction of the Supreme Court to contest what it asserts is an excessive withdrawal of the available water in the river by the North Carolina users. After the suit was filed, three entities – a special municipal service agency comprised of two counties in each of the two states, and a subsidiary of Duke Power, and the City of Charlotte – each sought to intervene in the case. By a five-four decision, intervention was granted the first two entities, but not the city. 

    Intervention by non-state entities in original jurisdiction cases was recognized almost sixty years ago in New Jersey v. New York, 345 U. S. 369 (1953). “The standard for intervention in original actions by nonstate entities is high—and appropriately so.” (Opinion at 9). The reason is that a state in equal apportionment cases is, “a party to a suit involving a matter of sovereign interest,” it is parens patriae and “‘must be deemed to represent all [of] its citizens.’” 345 U. S., at 372–373 (quoting Kentucky v. Indiana, 281 U. S. 163, 173– 174 (1930)) (Opinion at 8). The majority found that North Carolina was acting on behalf of the City of Charlotte, but not on behalf of the Duke Power entity, or the Catawba River Water Supply Project, the two-county two-state special purpose municipal district. 

    It was this very idea of a state acting strictly as parens patriae for all of its citizens that lead Chief Justice Roberts and four other members of the Court to dissent. “The interests of a State’s citizens in the use of water derive entirely from the State’s sovereign interest in the waterway. If the State has no claim to the waters of an interstate river, then its citizens have none either.” (Dissent at 4). Both the opinion and the dissent base their reasoning on the sovereign interests that the states have in their waters, and the private property rights that riparian users derive from those sovereign interests. 

    The case is South Carolina v. North Carolina, No. 138, Orig. (January 20, 2010). For more information contact Blair Gardner at 304 340-1146. 

This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.