The Supreme Court on Monday stepped into the middle of a basic constitutional controversy involving the Court’s occasional role as a trial court: 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 satisified 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.

Posted in South Carolina v. North Carolina, Uncategorized