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The whole doctrine of constitutional law is based on an attempt to preserve equal footing, equal treatment, and equality among the members of the Union, the respective States. i think the men at Philadelphia foresaw all too well this very type of issue before us today. Proponents of broadened boundaries for certain States, at the expense of other States, remind me of the description of another society in George Orwell's book, Animal Farm. Their notion of good constitutional doctrine seems to be that "all States are equal, but some States are more equal than others."1
I.INTRODUCTION
On February 20, 2018, the Supreme Court denied the petition for certiorari in North Carolina v. Alcoa Power Generating2 This, as a matter of course, was of no great significance: it appeared on the Court's routine order list along with many hundreds more denials; as in virtually all such dispositions, the Court offered no explanation; and indeed, the denial expressed no opinion on the merits of the underlying case.3 The decision below of the Fourth Circuit awarding victory to Alcoa and Cube Yadkin Generation was left undisturbed.4
As with many suits that meet their Waterloo at One First Street in the nation's capital,5 the underlying dispute and litigation had been percolating for some time.6 The story began in the early part of the twentieth century, when Alcoa first set up an aluminum smelting operation in the rural Piedmont region of North Carolina, on the banks of the Yadkin River.7 Both North Carolina and Alcoa profited handsomely: for the state, the nearby hamlet exploded into an industry boomtown, bringing prosperity to an impoverished corner of the state; in return for Alcoa' s investment, North Carolina strongly supported Alcoa before the Federal Energy Regulatory Commission' s (FERC) predecessor when it sought the right to operate four hydroelectric dams on the Yadkin to supply power for its smelters.8 The concession of cheap, nearby electricity was vital to Alcoa in the low-margin and highenergy-cost market for aluminum production.9 Despite that private benefit, however, North Carolina persuaded FERC and long maintained that Alcoa's presence served the public interest in good jobs and stable employment.10
North Carolina changed her mind with the turn of the millennium.11 In 2002, Alcoa had idled the smelter; in...