Supreme Court hears arguments on water rights, antitrust

Supreme Court hears arguments on water rights, antitrust

[JURIST] The US Supreme Court [official website] heard oral arguments in two cases Tuesday. In Kansas v. Nebraska and Colorado [SCOTUSblog backgrounder] the court is tasked with deciding whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska and Colorado, and, if so, what relief is appropriate to remedy the violation. Following passage of a congressionally approved compact, the states initiated litigation leading to a 2003 settlement stipulation, the terms of which the court will review. The compact’s terms on water use have caused disputes over the years between the states. In Tuesday’s oral argument [transcript, PDF] counsel for the state of Kansas argued that that Nebraska must comply with its compact obligations every year, including the years when water is scarce.

In North Carolina Board of Dental Examiners v. Federal Trade Commission [SCOTUSblog backgrounder], the court will consider:

Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

The litigation began after the North Carolina Board of Dental Examiners [advocacy website] ordered non-dentists to stop whitening teeth at significantly cheaper prices than dentists offered for teeth whitening services. In response, the Federal Trade Commission found that the board’s actions violated the Sherman Act because they constituted a “combination” or “conspiracy, in restraint of trade.” Counsel for the board argued [transcript, PDF] that the board, as a state regulatory agency, could enforce state antitrust laws. Moreover, simply because the agency is run by part­-time public officials who are also market participants in their personal capacities, it does not lose its state action antitrust immunity.