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WASHINGTON The city of Charlotte and Duke Energy jumped into the water war between North and South Carolina on Tuesday, arguing before the U.S. Supreme Court that they, not the state, can best protect the energy company's and Charlotte's interests in the Catawba River.
At stake for Charlotte is the clean water that gushes from faucets and flushes toilets in homes, schools and businesses throughout much of Mecklenburg County. It's the largest municipal water user on the 225-mile Catawba.
South Carolina sued North Carolina in 2007, amid a severe drought, over the river's riches, saying it needed an adequate amount of water from the Catawba.
Tuesday's arguments, though, focused on a single issue: whether the city and Duke Energy, along with the Catawba River Water Supply Project, ought to be allowed to join the lawsuit as intervening parties on North Carolina's side. That would allow them more say in how the larger water dispute is argued in court.
The state of North Carolina supported the three interventions, while South Carolina opposed them.
Millions of gallons of water in the Catawba River flow daily from the Blue Ridge Mountains, through the Piedmont and down into South Carolina. South Carolina objects to N.C. water transfers from the Catawba into neighboring river basins because the water is forever lost to its portion of the Catawba.
Charlotte has state permission to pipe 33 million gallons a day from the Catawba into eastern Mecklenburg County, which lies outside the Catawba basin. More recently - prompting the S.C. lawsuit - a N.C. environmental panel gave Concord and Kannapolis approval to pump 10 million gallons a day from the Catawba.
The Catawba River Water Supply Project is a joint venture of Union County, N.C., and Lancaster County, S.C. It draws out 36 million gallons a day from the Catawba.
Duke Energy controls a chain of 11 reservoirs in both states, which it uses to power hydroelectricity and for cooling water for its coal-fired and nuclear plants. It wants to preserve a water agreement it made with 70 regional interests, along with a pending approval from the Federal Energy Regulatory Commission for its power plants.
"If South Carolina won, that could have the impact of reducing water availability for the Charlotte region in the future," said Charlotte city attorney Mac McCarley.
South Carolina, on the opposing side, argued that each of these entities is well-represented by North Carolina's interest, and that allowing the interventions would complicate and prolong the case.
"It would be a disaster if our neighbors to the north were allowed to use the river as if it belonged only to them," said South Carolina Attorney General Henry McMaster.
But the three intervening parties, represented by a Washington lawyer with experience before the Supreme Court, faced skeptical questions from justices about why their interests could not be protected by North Carolina.
"That just drags us into your problems among your water users," said Justice Sonia Sotomayor told Chris Bartolomucci of the Washington law firm Hogan and Hartson.
The case was heard in the Supreme Court because all lawsuits between states originate there. Chief Justice John Roberts said he worried about some sort of mission creep by private parties.
"Private parties are going to hijack our original jurisdiction," Roberts said. He asked N.C. Solicitor General Christopher Browning Jr. why the state couldn't take care of the local groups' concerns.
"Why can't you represent them?" Roberts asked. "You seem to be ceding your sovereignty to them."
Browning said the state couldn't properly represent the interests of either Duke Energy or the water project.
"With respect to the city, we will defend them," Browning said. But, he added, it's only fair that Charlotte - as such a large municipal user - have its voice heard in court.
On the other side, justices had strong questions for South Carolina in its attempt to block the interventions.
"They are the three biggest users of water," Sotomayor told South Carolina's outside counsel, Washington litigator David C. Frederick.
Justice Antonin Scalia pointed out that much of the larger water lawsuit over the Catawba revolves around the three local entities anyway.
"To say they're just Joe Dokes is really just unrealistic," Scalia said.
Still, Frederick argued for South Carolina: "We are here to get our fair share of the river."
After the arguments, Duke Energy's outside counsel, Carter Phillips of Washington, said he thought the day went well.
South Carolina already has forced Duke Energy into a role in the lawsuit through voluminous requests for documents during the case's discovery phase, Phillips said.
"The idea that we will have all the burden and none of the benefits is just fundamentally unfair," Phillips said.
A decision on which, if any, interventions to allow won't be made until later in the Supreme Court's term, which ends in June.
A loss to the intervening parties would prohibit the city, Duke Energy and the water project from filing anything more than "friend of the court" briefs in the case, restricting their work, McCarley said.
"That's sitting on the second row as opposed to the first row. We'd like to be on the first row," McCarley said. "What's at stake is our ability to put forward the best case possible." Charlotte staff writer Bruce Henderson and McClatchy Newspapers' James Rosen contributed.
