South Carolina v. North Carolina - Oral Argument - October 13, 2009

South Carolina v. North Carolina

Media for South Carolina v. North Carolina

Audio Transcription for Opinion Announcement - January 20, 2010 in South Carolina v. North Carolina

Audio Transcription for Oral Argument - October 13, 2009 in South Carolina v. North Carolina

John G. Roberts, Jr.:

We will hear argument this afternoon in Case 138 in our original docket, South Carolina v. North Carolina.

Mr. Frederick.

David C. Frederick:

Thank you, Mr. Chief Justice, and may it please the Court: South Carolina seeks an equitable apportionment with North Carolina of the Catawba River.

Both States act as parens patriae on behalf of all users of the river within their boundaries.

For three reasons, this Court should not adopt the Special Master's recommendation that Charlotte, Duke, and the Catawba River Water Supply Project be permitted to intervene as parties in this original action: First, the report articulates the wrong legal test for intervention.

Second, under the New Jersey v. New York standard, none of the three entities should be permitted to intervene.

And, third, the report's approach to intervention involves this Court in deciding intramural disputes between and among water users in one State.

With respect to the first point, the Special Master applied the wrong factors, we would submit, in deciding whether or not a party or an intervenor should be allowed to intervene as a party.

The Special Master sought to distill from this Court's cases three principles that we would submit are not the appropriate principles in deciding an intervenor's status.

First, the report overemphasizes the, quote, "direct stake", although the master found that the equitable apportionment had no specific impact on individual users of the water.

John G. Roberts, Jr.:

I thought your friends agreed that the New Jersey v. New York standard applied?

David C. Frederick:

Your Honor, part of what you will be deciding in this case is the appropriate standard for intervention, and the Special Master, we respectfully submit, did not apply the New Jersey v. New York factors.

Instead, the report distilled from other cases, not the New Jersey v. New York case, the principles that she thought should apply to govern an intervenor's status, and those three principles, we would submit, are incorrect.

Under the New Jersey v. New York standard, the master did not make findings that would be appropriate to determine the intervenor status here as appropriate parties.

There was no finding of inadequate representation by either State to support any of the intervenor's request to participate as parties.

There was no finding of a compelling interest in the sense that it was truly compelling.

It's hard to argue in cases in -- where there is no case from this Court in the equitable apportionment area that three intervenors would have met the compelling interest standard here.

And, finally, the New York-New Jersey standard talks about having interests that are apart from other interests.

But both Charlotte and the Catawba River Water Supply Project are simply acting on behalf of all users of North Carolina water.

They simply happen to be the largest ones.

Antonin Scalia:

Mr. Frederick, we -- we had a case involving, what, a tax on -- on oil companies, in which it was a State against State case, but we allowed the oil companies who would pay the tax to intervene.

Now, why is that any different from this case?

David C. Frederick:

First, the interests were different.

They were not an equitable apportionment where the water--

Antonin Scalia:

Why does that make any difference?

David C. Frederick:

--This Court has said for 200 years that water is a unique resource within the sovereign control of States.

In the Maryland case, the Court permitted intervention in a situation in which Louisiana had sued the pipeline companies in Louisiana State court for a declaratory judgment that its tax was constitutional.

There was also a pending FERC action in Federal court in Louisiana raising the same issue, so when Maryland and eight other States who were not parens patriae of the various pipeline companies who sought to intervene filed the original action, I think the Court appropriately considered that interests of judicial efficiency called for handling the Commerce Clause challenge in the original action in this case.

And finally, the Court only devoted two sentences of its opinion and didn't cite the New Jersey v. -- New York v. New Jersey case in acting on the intervention.

Antonin Scalia:

Yes, well, these -- these are rules that we are making up ourselves, right, as to when we are going to allow intervention or not?