South Carolina v. North Carolina

The Supreme Court held today that Duke Energy Corp. and the Catawba River Water Supply Project can intervene in South Carolina's lawsuit against North Carolina over rights to water from the Catawba River. The closely-divided court determined that the city of Charlotte, N.C., however, may not.

South Carolina filed suit against North Carolina in October 2007 after North Carolina approved an inter-basin transfer from the Catawba River, diverting it beyond the river basin. South Carolina contends that the case concerns the two states and the two states only.

Meanwhile, the three intervening parties that are on the side of North Carolina argue that they should be allowed to participate to protect their interests.

At issue before the justices was the decision by a special master to allow the parties to intervene.

On Jan. 20, 2010, a divided Supreme Court allowed two non-state entities to intervene, but ruled that the city of Charlotte lacks a "compelling interest" to join the action.

"[A] compelling reason for allowing citizens to participate in the original action is not necessarily a compelling reason for allowing citizens to intervene in all original actions," Justice Samuel Alito wrote for the 5-4 majority.

The Catawba River Water Supply Project and Duke Energy met the standards for intervention, but Charlotte did not.

"Charlotte has not carried its burden of showing a sufficient interest for intervention in this action," Alito wrote. "Its interest is solely as a user of North Carolina's share of the Catawba River's water."

Chief Justice John Roberts concurred in part and dissented in part, noting: "The result is literally unprecedented. Even though equitable apportionment actions are a significant part of our original docket, this court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never."

Justices Clarence Thomas, Ruth Bader Ginsburg and Sonia Sotomayor joined the chief justice's concurrence and partial dissent.

Question presented: Can the City of Charlotte, NC, the Catawba River Water Supply Project, and Duke Energy Carolinas LLC, which are non-state entities, be allowed to intervene as defendants in a case originating in the Supreme Court about a water dispute between two states?