The High Court Wades into State-Law Water Allocation

Article excerpt

ABSTRACT

Interstate water disputes have long been a mainstay of the Supreme Court's original jurisdiction, the traditional forum for sovereign states to resolve their water wars peaceably. For over a century, these remained disputes between sovereigns: until 2010, when the Court permitted a private power company to intervene in such a dispute. The decision was an affront to state sovereign control of water resources, but its implications reach beyond dignitary concerns. Under the public trust doctrine, states have long held a fiduciary responsibility to allocate water resources within their borders in the interests of their citizens. As global climate change and the increasing demands of energy production continue to stress America's water resources, the Court's decision will further complicate states' efforts to enact sound water policy for the future.

INTRODUCTION

In 2010, the Supreme Court permitted Duke Energy Carolinas, LLC, (Duke Energy) to intervene in an interstate water-rights dispute between North Carolina and South Carolina over the Catawba River. (1) It marked the first time in the Court's history that a private party successfully intervened in an action for the equitable apportionment of an interstate waterway. (2) By allowing Duke Energy's intervention, the Court effectively relaxed its standard for citizen intervention in equitable apportionments, giving the power company unprecedented direct access to the Supreme Court to represent its private water interests against the sovereign interests of the party-states.

The Catawba River runs from North Carolina's Blue Ridge Mountains into South Carolina, where it becomes the Wateree River and then the Santee River, before flowing into the Atlantic Ocean. Duke Energy operates eleven hydroelectric dams on the Catawba River. (3) The company also makes significant water withdrawals to cool its coal-fired, natural-gas, and nuclear plants, providing power to its 2.3 million customers in the Carolinas. (4) The rapidly growing Charlotte, North Carolina metropolitan area has increasingly relied on interbasin transfers from the Catawba River to fuel its growth, reducing downstream flows into South Carolina, particularly in times of drought. (5) Drought in the Catawba-Wateree Basin has occurred with increasing frequency. The national conservation group American Rivers named the Catawba "America's Most Endangered River" in 2008 and listed "outdated water supply management" as the primary threat to the Catawba-Wateree Basin's ecosystems. (6) The Energy Law Journal named Charlotte as the U.S. metropolitan area most at risk of water shortages resulting from withdrawals by thermoelectric power plants. (7)

In 2007, South Carolina sued North Carolina under the Supreme Court's original jurisdiction for an apportionment of the Catawba River, complaining that its upstream neighbor was taking more than its equitable share of the waterway. (8) In particular, South Carolina challenged the validity of North Carolina's interbasin transfers to Charlotte and other municipalities. (9) Duke Energy, the City of Charlotte, and the Catawba River Water Supply Project (CRWSP) (10) all moved to intervene as defendants. (11) Justice Alito wrote for the majority of a closely divided Court, which granted intervention to Duke Energy and the CRWSP but denied Charlotte's motion. (12) Chief Justice Roberts concurred in the judgment in part and dissented in part, expressing that all three parties' motions should have been denied to preserve the sovereign nature of equitable-apportionment actions. (13)

States have historically played a primary role in the allocation of water resources within their borders, based on both the state sovereign ownership doctrine and the public trust doctrine. (14) Over the past hundred years, the Supreme Court has developed the doctrine of equitable apportionment to allow for the peaceful resolution of interstate water-rights conflicts, which have been some of the most divisive squabbles between the states. …