U.S. Supreme Court allows Duke Energy and Catawba River Water Supply Project to intervene in South Carolina v. North Carolina

by Manton Grier, Jr.

This past Wednesday, the United States Supreme Court granted motions to intervene filed by Duke Energy and Catawba River Water Supply in South Carolina v. North Carolina, No. 138, an original action filed by South Carolina seeking an equitable apportionment of the Catawba River waters. The opinion was written by Justice Alito for a five-justice majority; the Chief Justice concurred in the judgment in part and dissented in part.

In intra-state disputes brought in the original jurisdiction of the Supreme Court, the Court demands a “compelling interest” before allowing a non-state party to intervene in what is otherwise a sovereign dispute between two states. The Court held, however, that “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 giving Duke Energy a strong interest in the outcome of this litigation.” As to Catawba River Water Supply Project, the Court held that it had unique interests because half of its customers are North Carolina residents and half South Carolina residents. The Project also relies on authority granted by both states to draw water from the Catawba River. The Court rejected the motion to intervene of the City of Charlotte, North Carolina, reasoning that its interest was not sufficiently unique that it could not be effectively represented by North Carolina.

The Chief Justice concurred in the denial of Charlotte's motion to intervene but dissented from the grant of intervention to Duke Energy and the CRWSP on the basis that the Court has never before granted intervention to a non-sovereign entity in an original action for equitable enforcement of water rights.