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June 30, 2023 Feature

Developments in Interstate Compact Law and Practice 2022

Jeffrey B. Litwak and Marisa Fiat

The year 2022 was an interesting year for interstate compacts. While there were no blockbuster judicial decisions, one was decided in 2023. New York v. New Jersey, an original jurisdiction case filed at the beginning of 2022, involved a question whether one state may unilaterally withdraw from and terminate a compact absent express authorization to do so in the compact. In early 2023, the Court ruled in New Jersey’s favor. In other cases, the majority and dissent in the First Circuit sparred over how to characterize an interstate compact agency in a non-compact case; courts in New York seem to have opened the door for changing the analytical framework for determining whether state law applies to the Port Authority of New York and New Jersey; and two courts interpreting compacts referred to interpretations of other related compacts, illustrating a premium on uniformity.

Administrative developments included compact agencies taking advantage of federal funding opportunities in the 2021 Infrastructure Investment and Jobs Act. The Act has some preferences for cooperative actions and some references to specific compact agencies. The Military Interstate Children’s Compact Commission has developed a plan for the states to fix a scrivener’s Interstate Compact in Educational Opportunity for Military Children, a heavy lift as all fifty states and the District of Columbia are members.

Legislative developments included several federal bills that would have directed changes to specific interstate compacts or changed how states implement those compacts. None of these bills proceeded to a vote. Notable new state laws provide for a new bridge authority between local governments in Oregon and Washington; Massachusetts becoming the fiftieth state to join the Interstate Wildlife Violator Compact; Virginia and Louisiana enacting amendments to compacts that other members states have not yet enacted; Maryland resolving discrepancies between it and Virginia’s enactment of amendments to the Potomac River Compact; New Hampshire and Vermont enacting the new Interstate Compact for the Placement of Children (ICPC); and South Carolina withdrawing from the Interstate Insurance Product Regulation Compact, the first state to ever withdraw from that compact.

This article discusses a wide range of judicial, administrative, and legislative developments in interstate compact law in 2022.1 We examine reported and unreported cases as both illustrate how courts apply or distinguish principles of compact law. We review enacted and unenacted bills because both illustrate policy conversations involving interstate compacts. Discussions of many cases, agency actions, and legislative actions present principles of law, administrative and legislative context associated with the reported developments, and citations for further reading.

Interstate compacts are legislation and contracts between the states.2 They are not one of the traditional local, state, or federal governments, but more than 250 current compacts address subjects as varied as social services delivery; child placement; education policy; emergency and disaster assistance; corrections, law enforcement, and supervision; professional licensing; water allocation; land use planning; environmental protection and natural resources management; and transportation and urban infrastructure management. Most professionals who work in these policy areas will encounter one or more interstate compacts from time to time, or regularly. When interacting with compacts, these professionals must know the unique principles of law applicable to compacts and compact agencies, as well as the limitations on federal, state, and local officials when navigating or administering a compact.

Studying this most formal type of intergovernmental agreement also provides a framework for thinking about other forms of intergovernmental cooperation, including intergovernmental agreements that state agencies and municipalities commonly use. Finally, because compacts and compact agencies are largely separate from and independent of federal and state governments, scholars may wish to study how these agencies develop and apply their own governance practices and how they observe elements of state and federal legal requirements, which often require unique solutions foreign to federal and state laws and agencies.

I. Judicial Developments

A. Applying the Compact Clause of the U.S. Constitution

The Compact Clause of the U.S. Constitution states, “No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another state, or with a foreign Power . . . .”3 Despite the apparent requirement for consent for all compacts, the U.S. Supreme Court has concluded that consent is needed only for compacts that increase the power of the compacting states that could encroach upon federal powers4 or that could affect the non-compacting states.5 Common legal issues involving the Compact Clause include whether a particular compact requires consent or has received consent; permissible conditions of congressional consent; and whether a grant of consent limits the ability of the federal government to legislate in the policy area of the compact.6 No cases in 2022 involved the application of the Compact Clause in any significant way.

B. Jurisdiction and Reviewability

The very earliest compacts all involved agreements establishing the boundaries of colonies and later the states. Unfortunately, boundary compacts have not always eliminated future litigation over the boundaries of the states. In W.C. Chapman, L.P. v. Cavazos,7 a case involving ownership of disputed property, the court needed to determine whether the case was properly brought in Texas under the “local action doctrine,” which requires that a local action involving real property may only be brought in the territorial boundaries of the state where the land is located.

The plaintiff alleged that “the Disputed Property has been located in Texas since at least 1941,”8 citing the 1999 Red River Boundary Compact.9 The defendant argued that the compact did not apply because the compact does not affect private property rights or title to property.10 The court noted that the defendant’s argument conflated ownership with the state where the property is located; the state in which the property is located does not change depending on which private party owns title to the property. The court applied the compact, which established the Red River’s south vegetation line as the boundary between Oklahoma and Texas, and concluded the evidence showed that the property is located in Texas. Consequently, the court concluded that the case satisfied the local action doctrine and thus the court had diversity jurisdiction.11

In a long-running dispute over the Delaware River Basin Commission (DRBC) ban on fracking, the Third Circuit in Yaw v. Delaware River Basin Commission12 concluded that two state senators, the Pennsylvania Republican Caucus, and several Pennsylvania municipalities lacked standing to challenge the ban. The court applied federal law on standing but without any recognition, comment, or consideration that the DRBC is a multistate agency created by an interstate compact. For example, the court concluded that the individual senators lacked standing to assert institutional injuries belonging to the “legislature as a whole.”13 But the court did not consider that its reference to the “legislature as a whole” refers to the Pennsylvania General Assembly, which lacks the authority to unilaterally direct the multistate DRBC’s operations and decision-making. Even if the state senators could speak for the Commonwealth of Pennsylvania, granting them standing would give Pennsylvania a pole position to direct the action of the DRBC.

Even though the Third Circuit did not see the senators’ participation as a problem of unilateral state control, the court appropriately observed:

Plaintiffs-Appellants are also free to seek redress through other means. They can lobby the Commission to reverse course based on their policy concerns. They can try to amend the Delaware River Basin Compact through concurrent legislation of the member states. Or, they can persuade a party with standing to assert the institutional injuries they allege to bring a version of this lawsuit.14

In Garmong v. Tahoe Regional Planning Agency,15 the Ninth Circuit concluded that the district court properly dismissed claims challenging a Tahoe Regional Planning Agency (TRPA) permitting decision because the plaintiff failed to bring the claims under the exclusive provision for judicial review in the Tahoe Regional Planning Compact. The court succinctly explained:

The TRPA Compact provides that the exclusive means of challenging a TRPA permitting decision is a judicial-review claim brought under Article VI(j)(5) of the Compact, alleging “prejudicial abuse of discretion.” Despite multiple motions to dismiss from the TRPA Defendants arguing that [plaintiff] Garmong failed to bring his noncompliance claims as claims for judicial review and despite Garmong receiving multiple opportunities to amend his complaint, he never cited Article VI(j)(5) as the basis for these claims or specifically alleged that the TRPA “prejudicially abused its discretion” anywhere in his initial or Amended Complaint.16

This case illustrates a common problem: private parties and their attorneys suing interstate compact agencies often do not understand the unique compact authorities. Typical state or federal claims do not always apply against compact agencies, which may have unique authorities relating to immunity or judicial review. One author of this article, who is general counsel to an interstate compact agency, often advises persons how to structure their claims to expedite litigation by avoiding civil procedure issues that may unnecessarily become the focus of a case.

Finally, in Keystone Outdoor Advertising Co. v. Secretary of the Pennsylvania Department of Transportation,17 the court concluded that Keystone Outdoor Advertising Company did not have standing to bring a claim under the Delaware River Port Authority (DRPA) compact.18 In this case, Keystone owned billboards that were located on DRPA property. PennDOT attempted to deny Keystone’s applications for the billboards; PennDOT asserted that the billboards would violate the Pennsylvania Outdoor Advertising Control Act of 1971. Keystone sought declaratory and injunctive relief, and the DRPA intervened. PennDOT filed counterclaims. All the parties requested that the court declare whether PennDOT can enforce state billboard law on DPRA property.19 The merits of this legal question are discussed below.20

Relevant to reviewability, PennDOT claimed that Keystone and the DRPA do not have standing to enforce the compact as third-party beneficiaries. The court applied the factors from Doe v. Pennsylvania Board of Probation and Parole,21 in which the Third Circuit concluded that a parolee who applied to use the Interstate Compact Concerning Parole and Probation22 did not have rights under the compact as a third-party beneficiary considering the intent of the compact.23 In Keystone, the court noted that Article I of the DRPA compact explained:

The purpose of this compact is primarily to create the DRPA, a bi-state entity, to supervise and manage the operation and maintenance of the bridges and tunnels across or under the Delaware River, the improvement and development of the Port District, the promotion of the Delaware River as a highway of commerce, and other issues related to the travel over, under, or in the Delaware River.24

The court thus concluded that Keystone, a third-party vendor, had no legally enforceable rights under the compact. This analysis is notable because few compact cases directly address whether an individual is a third-party beneficiary with rights to enforce an interstate compact.

PennDOT also argued that the DRPA did not have standing to enforce the compact. Although PennDOT admitted in its briefing that the DRPA was a third-party beneficiary, PennDOT argued that the DRPA could not assert a redressable injury related to a violation of the compact.25 The court did not explain DRPA’s argument but readily disagreed, pointing out:

T]he DRPA is authorized through the Compact to contract with third party vendors, such as Keystone, to use its land for revenue generation through collecting rents and undertaking economic development projects. Therefore, PennDOT’s attempt to regulate the Billboards on DRPA property, located there pursuant to a contract between the DRPA and Keystone and in accordance with the DRPA’s authorized purposes, directly impinges on the DRPA’s legal rights under the Compact.26

The court’s reasoning and conclusion that the DRPA can assert a redressable injury suggests the court understands that the DRPA is separate from the states that created it, even though it did not discuss or cite authority to that effect.27 The Coughlin and Panova cases discussed below more directly involve the question of how to characterize an interstate compact agency. As of November 20, 2022, the district court case is still pending.

C. What Is an Interstate Compact and Compact Agency?

Courts commonly rely on principles of law and judicial precedent from non-compact authority to describe compacts and compact agencies.28 Less commonly, courts rely on principles of interstate compact law to describe other governmental entities. Coughlin v. Lac du Flambeau Band29 out of the First Circuit had nothing to do with interstate compacts, but the dissent used interstate compacts as an example for characterizing a tribal government.

Coughlin was a bankruptcy case in which the debtor sought an order preventing collection efforts by the Lac Du Flambeau Band of Lake Superior Chippewa Indians (Band) pursuant to section 106 of the Bankruptcy Code, which waives sovereign immunity “as to a governmental unit.”30 Section 101(27) of the Bankruptcy Code defines a governmental unit as “or other foreign or domestic government.”31 The majority readily determined that the Band was a “domestic government” and pointed out that the term “or other foreign or domestic government” would be surplusage if it did not include tribal governments.32

The dissent challenged that assertion and, in doing so, captured the essence of why courts have struggled with describing interstate compact agencies since the creation of the first compact agency, the Port Authority of New York Harbor, now the Port Authority of New York and New Jersey:33

For, even if the phrase “or other . . . domestic government” were not read to include Indian tribes, it still could be read to pick up otherwise excluded, half-fish, half-fowl governmental entities like authorities or commissions that are created through interstate compacts . . . .

In fact, the trailing phrase in § 101(27) seems quite well-suited to that modest, residuum-defining function. Such joint entities are not susceptible of the kind of one or two-word description (“Interstate Commission, Authority or the Like”? “Products of compacts or agreements”?) that—like Indian tribes themselves—each of the expressly listed types of foreign or domestic governments is. Nor do any other words in § 101(27) lend themselves to a construction that would encompass such odd governmental hydras.

The majority contends in response that these types of entities are already encompassed within § 101(27)’s definition of “governmental unit” as “instrumentalit[ies] . . . of a State,” such that the residual phrase “or other . . . domestic government” need not apply. See Maj. Op. at 611. But, why would we think such a joint entity is an “instrumentality” of a “State” when it is a body that is formed by more than one State through an interstate compact blessed by Congress and has a regulatory purview greater than that of a single state?34

In these three short paragraphs, Judge Barron recognized that compact agencies are not easily characterized in terms common to describing governmental agencies (i.e., “state” or “federal”). Compact agencies are indeed, “neither fish nor fowl” and “odd governmental hydras” in that they are created by two or more states acting cooperatively and, when necessary, with congressional consent, but they are neither state agencies nor federal agencies. Scholars and other courts have, for a long time, said this much. Indeed, in describing compact agencies as a hydra, Judge Barron was not the first judge to use a mythical creature to make their point. One scholar described the congressionally approved multistate compact as a “‘centaur of legislation’ which is an offspring of both state and federal law,”35 which the Ninth Circuit once adopted.36

Nor was Judge Barron the first to use interstate compacts to assist in interpreting a non-compact-related statute. On occasion, courts have applied interstate compact law and principles in cases involving a state-tribal compact.37 And, in 2019, Justice Thomas applied interstate compact law in Franchise Tax Board v. Hyatt,38 a case in which the U.S. Supreme Court had to decide whether the U.S. Constitution permits a state to be sued by a private party without its consent in the courts of a different state.

The Supreme Court granted certiorari,39 giving it the first-ever opportunity to resolve a Circuit split over which of the many hybrid animals of Greek mythology best describes an interstate compact.

In Panova v. Palisades Interstate Parkway Police Department,40 the court concluded that it should not construe a general waiver of sovereign immunity from a sue-and-be-sued clause to include a waiver of New Jersey’s Eleventh Amendment immunity. The court followed decisions from the Second Circuit and the New Jersey Supreme Court involving interstate compacts. But curiously, the court then deviated from compact law precedent and principles and applied its non-compact-law Fitchik41 factors to determine whether the Palisades Interstate Parkway Police Department was an arm of the State of New Jersey for the purpose of the Eleventh Amendment. The decision is not particularly satisfying because it does not explain why it did not apply three particularly helpful U.S. Supreme Court decisions specific to determining whether a compact agency is an arm of the state for Eleventh Amendment purposes.42 Fitchik did cite and rely on one of those leading compact cases (Lake Country Estates v. Tahoe Regional Planning Agency), so perhaps there would not have been any practical difference in the reasoning or outcome. Nevertheless, the district court missed citing this seemingly applicable compact law precedent.

D. Relationship Between a Compact and State Laws and Constitutions

One of the original and still enforceable principles of interstate compact law is that a state may not impose state law on a compact agency unless that law is reserved in the compact. The U.S. Supreme Court articulated this principle in its first compact case in 1823, concluding that Kentucky could not enact real property law that conflicted with the Virginia-Kentucky Compact of 1789, which preserved the application of Virginia’s real property law.43 Since then, courts have applied the principle with few deviations but with many variations on how they explain the principle.44

As summarized above, in Keystone Outdoor Advertising Co. v. Secretary of the Pennsylvania Department of Transportation,45 Keystone owned billboards that were located on Delaware River Port Authority (DRPA) property.46 PennDOT attempted to deny Keystone’s applications for the billboards, asserting that they violated the Pennsylvania Outdoor Advertising Control Act of 1971. The legal question before the court was whether PennDOT had the authority to regulate billboards on DRPA property.

PennDOT argued that the DRPA was not acting within its authorized purposes by hosting privately owned billboards. Considering multiple articles and sections of the DPRA compact, the court readily concluded that the DPRA compact provided the DRPA with authority to contract with Keystone to use DPRA land for outdoor advertising signs and that the states did not reserve authority to regulate outdoor advertising. The court also cited Third Circuit precedent, concluding that “[w]hen a bi-state entity is created pursuant to the Compact Clause there is presumed to be an unambiguous surrender of state sovereignty to that entity.”47 The court further reasoned:

By creating a bi-state entity, the states relinquish all control over the entity unless expressly reserved in the compact. All parties agree, as do we, that the Third Circuit’s decision in [Delaware River Joint Toll Bridge Commission v. Secretary Pennsylvania Department of Labor & Industry, 985 F.3d 189 (3d Cir. 2021)] stands for the proposition that when a bi-state entity created by Compact acts in accordance with its authorized purposes, the scope of the surrender of authority should be construed broadly and includes the general surrender of police powers, unless expressly reserved.48

This reasoning on the surrender or shifting of sovereignty is consistent with U.S. Supreme Court decisions. For example, in Hess v. Port Authority Trans-Hudson Corp., the Court explained that “bistate entities created by compact . . . are not subject to the unilateral control of any one of the States [because] ‘[a]n interstate compact, by its very nature, shifts a part of a state’s authority to another state or states, or to the agency the several states jointly create to run the compact.’”49 In another case, Justice Scalia dissented, reasoning in part, “There is no way [a compact] can be interpreted other than as a yielding by both States of what they claimed to be their sovereign powers.”50

In McKenzie v. Port Authority of New York & New Jersey,51 the New York Supreme Court Appellate Division concluded—in a two-paragraph decision—that New York’s Uniform Notice of Claim Act did not extend the time specified in the New York-New Jersey Port Authority Compact of 1921 (PANYNJ compact) to sue the Port Authority. The court gave two succinct reasons. First, the court concluded that the Port Authority “is not a ‘political subdivision of the state, . . . instrumentality or agency of the state or a political subdivision, . . . public authority[,] or . . . public benefit corporation entitled to receive a notice of claim as a condition precedent to commencement of an action’ within the meaning of the [Notice of Claim Act]; rather, it is a bistate agency.”52 Second, the court reasoned, “What is more, New Jersey has not enacted identical legislation, and bistate entities created by compact are not subject to the unilateral control of any one state.”53

This decision must have surprised Port Authority as pleasantly inconsistent with several of the court’s recent decisions. To understand this pleasant inconsistency, some background on how state law applies to the Port Authority is necessary. The PANYNJ compact has a provision that allows a state to apply state law to the Port Authority when “concurred in” by the other state.54 Generally, New York state courts apply an express intent standard to determine whether a particular state law applies to a compact.55 The express intent standard requires that the states’ laws must be substantially similar and the states’ legislatures must expressly specify that they intend the law to apply to the compact agency.56 Federal courts also apply the express intent standard.57 In contrast, New Jersey state courts do not apply the express intent standard to any compact.58 Instead, New Jersey state courts apply state law under a “concurred in” provision when the law to be applied is “complementary and parallel” to law in the other state. New Jersey state courts do not have a single standard for determining when laws are “complementary and parallel.” In different cases, New Jersey state courts have concluded laws are complementary and parallel when they are substantially similar,59 when they are somewhat similar,60 when regulations do not conflict with regulations in the other state,61 and when laws express similar public policy.62

However, instead of applying the express intent test to the Port Authority, New York state courts have held that state law is applicable to the Port Authority when that law regulates the external conduct of the Port Authority. Conversely, state law does not apply when it would regulate the internal conduct of the Port Authority. This unique test for the Port Authority first appeared in Agesen v. Catherwood,63 and New York state courts seem to continue applying Agesen reflexively rather than for any specific reason; no decision has explained why New York state courts started using the Agesen test or why they only apply it to the PANYNJ, and no other court uses the Agesen approach.64

In the past several years, the Supreme Court of New York and its appellate division consistently rejected the Port Authority’s express arguments asking the court to apply the express intent standard rather than Agesen.65 New Jersey courts similarly rejected the Port Authority’s arguments and continued to apply its complementary and parallel standard.66

With this background, the most notable aspect of this year’s McKenzie case is that the court did not apply Agesen; rather, the court seemed to apply an express intent standard, reasoning that New Jersey has not enacted identical legislation. Perhaps McKenzie signals that the court is moving toward applying the express intent standard to the Port Authority, or perhaps the case is an aberration.

In Oyola v. Washington Metropolitan Area Transit Authority,67 the court applied Maryland law to determine the applicable statute of limitation. The court wrote:

For violations of [the] Rehabilitation Act, this Court “borrow[s] the time limit from the most analogous state law claim.” Thus, for these incidents, the Court looks to analogous state violations proscribed by the Maryland Fair Employment Practices Act, which provides a two-year limitations period.68

What is notable about this case is what is missing. The court did not explain why it applied Maryland law instead of the law of the other parties to the Washington Metropolitan Area Transit Regulation Compact—Virginia or the District of Columbia. Perhaps the U.S. District Court for the District of Maryland only reflexively applied Maryland law. However, before “borrowing” state law in cases involving a compact agency, the court should consider whether there are differences in the states’ laws and explain why it selected the law of a particular state. Perhaps the court would have concluded that Maryland law was the most appropriate because, for example, the events occurred in Maryland or the plaintiff is a resident of Maryland. In contrast, the Transit Authority’s main office is in the District of Columbia. Established principles exist for when state law applies to a compact agency;69 however, none of those principles addresses the instances where federal law requires a court to borrow state law.

E. Interpretation of Interstate Compacts

In Afanasieva v. Washington Metropolitan Area Transit Authority,70 the U.S. District Court for the District of Columbia applied an important principle for interpreting interstate compacts—considering a decision from another party state’s court, in this case, the District of Columbia Court of Appeals. The District Court acknowledged that the decision was not binding in federal court yet found the outcome sufficiently persuasive to apply and follow.71

While applying precedent from other courts is a common practice generally, it is critically important in compact cases because it helps ensure a uniform interpretation to an interstate compact. Uniformity is particularly elusive because many courts in different states need to interpret and apply the same compact text.72 Afanasieva was not the first case in which a court considered another court’s law in interpreting the Washington Metropolitan Area Transit Regulation Compact. In Proctor v. Washington Metropolitan Area Transit Authority,73 the Maryland Supreme Court expressly noted that prior decisions in other courts are “highly persuasive” and overruled a decision from the Appellate Court of Maryland that was contrary to decisions from Virginia and District of Columbia courts. The Maryland Supreme Court noted that the decisions from the other states’ courts were “highly persuasive” and that, because the Appellate Court’s decision was contrary to the other Transit Authority jurisdiction, the district court “quite reasonably in our view, had reservations whether [the Appellate Court decision] was decided correctly.”74

Another interpretive practice is that courts consider prior interpretations of similar compacts. This is illustrated in Burke v. Lamont,75 in which the plaintiff, an incarcerated person, was transferred from a correctional facility in New Hampshire, where he was convicted and sentenced, to a facility in Connecticut using the New England Interstate Corrections Compact. The court concluded that the plaintiff could not maintain a section 1983 claim pursuant to the New England Interstate Corrections Compact, citing cases in which courts reached the same conclusion about the Interstate Corrections Compact (ICC), a different compact with a similar name.76

The court’s approach in Burke makes sense because the New England Corrections Compact and the ICC are two of three similar corrections compacts. The New England Corrections Compact and the Western Interstate Corrections Compact (Western ICC) are two regional interstate corrections compacts that authorize transfers of inmates between states.77 These regional compacts operate alongside a national-in-scope ICC. The regional compacts predated the ICC, which was modeled on the Western ICC.78 One important difference between the regional compacts and the ICC is that the regional compacts permit states to enter into contracts prior to construction of a new facility or enlargement of an existing facility that reserves a specific percentage of its capacity for use by the sending state.79

States transfer inmates for many reasons to benefit the correctional system (such as easing crowding, security, and control) and for the benefit of inmates (such as protection from other prisoners, location closer to family or a job before release, or for specialized healthcare).80 Transfers, however, may “limit prisoners’ access to courts and families, create perverse incentives to incarcerate[,] and aggravate the concern that America’s reliance on prisoners is unsustainable and unjust.”81 Additionally, the law and its procedures are complex for incarcerated persons to understand and often result in errors in pleading, including which law applies and in which court a plaintiff must file their claim.

Most states that are members of one of the regional compacts are also members of the ICC, and transfer records may not clearly show which compact was used. Somewhat humorously, in Griffin v. Hollar,82 the court could not figure out which compact the state used to transfer the plaintiff, stating, “On or about October 9, 2015, Plaintiff was transferred to the custody of the North Carolina Department of Public Safety (NCDPS) through the Interstate Corrections Compact (ICC) or the Western Interstate Corrections Compact (WICC).”83

As noted above, applying precedent from other courts is one way that courts create a uniform interpretation of a compact. There are many others.84 However, states and courts do not consistently strive for uniformity, and some expressly reject uniformity.

A notable split in the states’ interpretation of a compact involves the Interstate Compact on the Placement of Children (ICPC), in which the states are roughly evenly split on whether the ICPC applies to non-custodial, out-of-state parents. In 2010, in In re C.B.,85 the California Court of Appeal noted the split and lamented, “We are publishing this opinion . . . to point out that the resulting lack of uniformity is dysfunctional, that courts and rule makers have not been able to fix it, and hence that it may call for a multistate legislative response.”86 The Court of Appeal concluded that the ICPC does not apply to out-of-state, non-custodial parents, which curiously some California courts still do not observe and more curiously the Court of Appeal does not correct. For example, in In re Z.B.,87 the California Court of Appeal noted without comment that the trial court had ordered an evaluation of the father’s Iowa home pursuant to ICPC.88

In 2022, in In re D.L. v. S.B.,89 the New York Court of Appeals resolved a split between appellate divisions in the state and concluded that the ICPC does not apply to non-custodial, out-of-state parents. In doing so, the court considered the text and intent of the compact. In contrast, when the North Carolina Court of Appeals had to resolve two conflicting lines of cases involving the application of the ICPC, it applied North Carolina common law requiring application of the older of the two lines of cases.90

The Utah Supreme Court also acknowledged a state split in the application of the ICPC in In re K.S. & C.S.,91 but the court expressly avoided taking sides, stating:

We acknowledge Father’s point that there exists a sharp split of authority among courts that have considered the issue, and we recognize that Utah’s appellate courts, at some point, may need to weigh in on this question. But in our view, this case does not present an appropriate opportunity for us to do so because, even if we presume for purposes of our analysis that Father’s interpretation of the ICPC—that it has no application to placements with noncustodial parents—is the better one, Father still cannot prevail here, for several reasons.92

Harrosh v. Tahoe Regional Planning Agency93 presents an interesting question involving interpretation and application of the Tahoe Regional Planning Compact (the Tahoe Compact). The Tahoe Compact requires a double majority vote to approve a development “project,” comprising at least nine of the fourteen voting members of the TRPA Governing Board, including five from the state in which the project is located.94 The compact also specifies that if a project does not garner the necessary votes, “upon a motion of approval, an action of rejection shall be deemed to have been taken.”95 In this case, the Governing Board made its decision with only four members of the California delegation voting. Two of the seven seats on the California delegation were vacant, and one California board member recused herself.96 Thus only four members of the California delegation were available to vote. Harrosh challenged the Governing Board’s decision. The district court denied TRPA’s motion to dismiss, concluding that Harrosh had stated a claim.97

TRPA does not appear to have raised the Rule of Necessity in its proceeding. The Rule of Necessity is a common doctrine that allows an otherwise recused member of a decision-making body to participate if necessary to reach a decision; the rule ensures that the parties have a forum. The Tahoe Compact does not expressly state that the Rule of Necessity may apply, and TRPA regulations and procedures do not mention the Rule of Necessity. If, indeed, the TRPA authorities are silent on the Rule of Necessity, the Tahoe Compact allows state law to apply to TRPA if concurred in by the other state.98 At this point, the application of the Rule of Necessity will not arise in this case; California has now filled the two vacant seats, so even if the court remands the case back to TRPA, there should be at least five members of the California delegation that could vote on the project.

Finally, several courts concluded that statewide suspension of jury trials in response to the COVID-19 pandemic tolled the requirement in the Interstate Agreement on Detainers to bring a prisoner to trial within 180 days.99 These cases are consistent with several other decisions concluding the same in 2020 and 2021.100

F. Withdrawal from and Termination of Interstate Compacts

In 2022, following the U.S. Supreme Court denial of certiorari in Waterfront Commission of New York Harbor v. Murphy,101 New York filed a bill of complaint against New Jersey in the Supreme Court’s original jurisdiction. This original jurisdiction case involves a claim that the New Jersey governor could not initiate withdrawal from the Waterfront Commission Compact pursuant to authority and direction granted by a New Jersey law that former governor Chris Christie signed on his last day in office in 2018.102 This bill directed the New Jersey governor to give notice of New Jersey’s withdrawal to New York and would dissolve the Waterfront Commission, transferring its assets to the New Jersey State Police. The 2021 edition of this article summarized the history of this saga.

The Supreme Court granted New York’s bill of complaint. On April 18, 2023, the Court decided the case in favor of New Jersey with remarkably little discussion.103 The 2023 edition of this article will cover the Court’s decision.

II. Administrative Developments

With over 250 interstate compacts, it is difficult to capture the range of administrative activities by compact agencies and those that intersect with compact agencies. A complete review of the developments of each compact entity is beyond the scope of this article; instead, this section aims to highlight developments that offer learning opportunities for other compact agencies and persons studying interstate compacts.

A. Compacts Receiving Funding from Infrastructure Investment and Jobs Act of 2021

The 2021 federal Infrastructure Investment and Jobs Act (IIJA)104 was good for compact agencies, as many are involved in developing and operating multistate infrastructure systems. Below is a sampling of the compact agencies that received this funding.

The IIJA provides a $1 billion investment over a five-year period to support multiple initiatives developed by the Appalachian Regional Commission (ARC).105 ARC is a regional collaboration between the federal government and thirteen states within the Appalachian region.106 The collaboration leverages interstate and federal cooperation to address region-specific economic and social harms.107 ARC began spending its first $200 million annual allocation by creating the Appalachian Regional Initiative for Stronger Economies (ARISE).108 ARISE leverages infrastructure money to increase regional cooperation and progress towards the ARC’s strategic investment priorities.109 To be eligible for ARISE grants, applicants must collaborate with at least one other state on an initiative that creates multistate impacts.110

The Delaware Valley Regional Planning Commission (DVRPC) began to provide IIJA funding procurement resources to its constituent municipalities.111 The DVRPC is a regional planning commission created by Pennsylvania and New Jersey.112 The commission serves as an advisory agency and consists of representatives from the nine counties that make up the greater Philadelphia urban area.113 Pursuant to its advisory capacity, DVRPC is educating the counties about various IIJA funding initiatives and their respective requirements, emphasizing the importance of collaboration to increase their chance to receive funding.114

The IIJA established a $4.7 billion effort to identify, characterize, and plug undocumented orphan oil wells across the country115 and specified several roles for the Interstate Oil and Gas Compact Commission (IOGCC) that leverage IOGCC’s significant influence and power in the energy industry.116 The IOGCC is a multistate government entity established by an interstate compact between thirty-eight oil-producing states, with eight Canadian provinces as “international affiliates.”117

The IIJA identifies the IOGCC as an advisory entity to the U.S. Secretary of Energy and as a source of technical assistance to states and entities doing the work to plug the wells and thus provides the IOGCC with funding for those roles.118 Pursuant to these roles, the IOGCC signed a Memorandum of Understanding with the U.S. Departments of the Interior, Agriculture, and Energy, and the Environmental Protection Agency (the MOU) outlining the parties’ roles in relation to orphaned well site plugging, remediation, and restoration.119 The MOU creates a technical working group of federal land managers and specifies that this working group will consult and work with the IOGCC to develop reporting templates and best practices to facilitate fact-gathering and reporting. The IOGCC also will help determine the eligibility of a state for funding through the State Grant Program.120 In addition to signing the MOU, the IOGCC organized a research consortium with the Department of Energy to guide well plugging efforts for the next five years.121

The IOGCC also began to advise the Secretary of Energy in evaluating grant applications submitted by states for federal funding.122 A state must be a member of the IOGCC to qualify for the first round of well-plugging grants—nearly $775 million.123

The Federal Aviation Administration (FAA) awarded the Metropolitan Washington Airports Authority (MWAA), a multistate agency, a $49.6 million grant as part of its first wave of IIJA funds allocated to national airport development.124 MWAA intends to use the grant to begin work on a 15-year terminal redevelopment project at Washington Dulles International Airport, one of the two airports managed by MWAA.125 MWAA is a “public body politic and corporate” made up of representatives appointed by the governors of Virginia and Maryland, the mayor of Washington D.C., and the President.126 MWAA operates independently of the four appointing authorities and will continue to be eligible to apply for more infrastructure grants managed by the FAA.127

The IIJA also specified safety and accountability investments for the Washington Metropolitan Area Transit Authority (WMATA).128 WMATA administers the Washington Metropolitan Area Transit Regulation Compact between Maryland, Virginia, and Washington D.C. to develop and manage the transportation system in the nation’s capital region.129 For years, WMATA has struggled with inefficiency, safety concerns, and corruption130—issues that the new law directly addresses by making some funding available to WMATA only if it makes specific changes to its existing Inspector General position.131 WMATA members also must match these funds to initiate their disbursement.132 In addition to the conditional Inspector General funds, the IIJA allocates $150 million annually to WMATA between 2022 and 2030.133

IIJA provisions relating to WMATA demonstrate one federal lever that can influence an interstate compact. WMATA operates independently of the state and federal governments that appoint its board of directors, yet WMATA is still subject to significant influence by these governments through amendment of Congress’s consent to the compact and incentive funding.

Evidence of the effectiveness of this influence is apparent in the actions that WMATA took following passage of the IIJA. Members from WMATA’s board of directors and management team participated in a congressional hearing to explain how WMATA would capitalize on the IIJA investment moving forward.134 WMATA’s acting Inspector General submitted a report to the House Committee on Oversight and Reform in October 2022.135 The report outlines findings from the Office of the Inspector General’s investigation into allegations that WMATA withheld material communications about safety matters from the Washington Metrorail Safety Commission.136 The Washington Metrorail Safety Commission is a new interstate compact agency created in 2017 specifically to oversee the WMATA.137 The acting Inspector General was recently appointed to the permanent position and will serve for a three-year term.138

The IIJA also allocated $2.2 billion to the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) program.139 The U.S. Department of Transportation created the RAISE program to support non-traditional funding recipients, such as municipalities, counties, port authorities, tribal governments, and metropolitan planning organizations.140 Entities that receive grants are involved in road, rail, transit, and port projects that help accomplish national infrastructure goals.141 Michigan and Illinois, two member states of the Midwest Interstate Passenger Rail Commission (MIPRC), obtained grants from the RAISE program.142 The MIPRC is an interstate rail compact between Illinois, Indiana, Kansas, Michigan, Minnesota, Missouri, North Dakota and Wisconsin; however, Iowa, Nebraska, Ohio, and South Dakota are also eligible to join.143 The grants will fund improvements to existing passenger rail infrastructure, as well as research into the feasibility of new routes in Michigan and Illinois.144

The MIPRC also responded to a request for stakeholder input by the Federal Railroad Administration (FRA) regarding creation of a new IIJA-funded Corridor Identification and Development program that will develop passenger rail corridors across the country. The new program specifically identifies interstate rail compacts as eligible entities for submitting participation proposals.145 MIPRC contributed comments developed in coordination with each member state’s department of transportation.146 One of MIPRC’s comments to the FRA recommends that the new program prioritize capital projects guided by regional compacts.147

The Southern Rail Commission (SRC) helped Louisiana, one of its member states, obtain a RAISE grant that will fund creation of a passenger rail service from Baton Rouge to New Orleans.148 The SRC is an interstate rail compact between Louisiana, Mississippi, and Alabama.149 The compact authorizes the SRC to assist member states in pursuit of interstate passenger rail development—a purpose particularly conducive to the IIJA’s focus on interstate rail collaboration.

The FRA is in the process of developing the Interstate Rail Compact Grant Program, an initiative created by the IIJA.150 The new program will help fund the creation of new rail compacts, activities of existing compacts, and substantive rail services provided by compacts.151 The SRC, MIPRC and the National Center for Interstate Compacts at the Council of State Governments have provided comment to the FRA.152

B. Notable Adjudications and Rulemaking

Many compact agencies and party states are involved in numerous adjudication and licensing actions and rulemaking proposals, which are too numerous to fully cover here. This article identifies actions that are notable as highly controversial or the subject of prior litigation, or both.

The Wisconsin Department of Natural Resources approved an application by the Village of Somers to divert an average of 1.2 million gallons of water per day from Lake Michigan.153 Water diversion applications for water from the Great Lakes Basin are evaluated according to procedural and substantive requirements in the Great Lakes-St. Lawrence River Basin Water Resources Compact. The compact bans all water diversions from the Great Lakes Basin with some exceptions.

The Village of Somers in southeast Wisconsin is a “straddling community” according to the Great Lakes-St. Lawrence River Basin Water Resources Compact, as it is partially inside and partially outside the Great Lakes Basin.154 The Great Lakes-St. Lawrence River Basin Water Resources Compact specifies that states may approve a diversion for a straddling community provided the diversion meets certain criteria, including use for public water supply purposes and treatment and return to the Great Lakes Basin.155

Somers’s diversion proposal met the criteria for state approval, rather than review by the regional body, because the amount of water loss created by the diversion was beneath the level requiring review.156 Somers’s is the latest of several straddling-community applications that Wisconsin has approved because the basin boundary is quite close to the shore of Lake Michigan in southeast Wisconsin, which is a highly developed region close to both the Chicago and Milwaukee metropolitan areas. Unlike other out-of-basin diversions, this application was approved with little opposition after Somers received a stop-work notice on its construction before receiving approval.157

In 2021, the Delaware River Basin Commission proposed a new rule prohibiting discharge of wastewater from high-volume hydraulic fracturing and related activities (“fracking”) within the Delaware River Basin.158 In February 2022, the comment period for this rule concluded with 2451 written and oral comments.159 This rulemaking should come as no surprise. The DRBC has never permitted fracking within the basin.160 It is currently involved in protracted litigation over its authority to prohibit fracking.161 As of the end of 2022, the DRBC had not yet summarized and responded to comments or acted on the proposed rule.

C. Plan for Amending the Interstate Compact on Educational Opportunity for Military Children

The Interstate Compact on Educational Opportunity for Military Children facilitates the enrollment of students of military families when the military relocates a family. All fifty states and the District of Columbia are members of the compact.162 In 2022, the Military Interstate Children’s Compact Commission (MIC3) began addressing a scrivener’s error in the compact that would seem to exclude the application of the compact to students of active members of the National Guard and Reserve. The compact refers to “10 U.S.C. Section 1209 and 1211.”163 The correct statutory citation is “10 U.S.C. Chapters 1209 and 1211.” A series of legal opinions from MIC3’s counsel recommended that the states should amend their statutory enactments of the compact and recommended a plan for MIC3 to work with the states in three tiers based on the number of National Guard and Reserve children in that state.164

The legal opinions recognize the complexity of all fifty-one members amending the compact. The plan is an elegant recommendation because as the states amend their statutory enactments, the temporary mix of references to “Sections 1209 and 1211” and “Chapters 1209 and 1211” will not alter the states’ implementation of the compact. This is the first time that such a large compact has attempted to have all members amend their statutory enactments without enacting a new compact.165

D. A New Compact Board

Although not an interstate compact, a new water rights compact between Montana and the Confederated Salish and Kootenai Tribes166 had a busy first year. The state and tribes signed the compact in December 2020,167 and Secretary of the Interior Deb Haaland signed the compact in September 2021.168 Montana and the Confederated Salish and Kootenai Tribes established the Flathead Reservation Management Board, which met for the first time at the beginning of 2022.169 As of this writing, the Board has met an additional twenty-six times and made significant progress towards solidifying itself as the independent regulatory body for water rights administration on the Flathead Indian Reservation.170

Courts sometimes cite interstate compact law when resolving cases involving state-tribal compacts, which illustrates shared legal principles.171 Indeed, many of the administrative and legal matters that the Flathead Management Reservation Board are working through, such as searching for office space,172 evaluating the Board’s legal status for tax purposes,173 and designing a logo,174 are the same that new interstate compact agencies must work through. The Board’s expedient progress on these practical issues has helped it attend to substantive matters related to its actual mandate. To address water rights applications without delay, the Board developed interim review systems less than five months after the first meeting.175 The Flathead Reservation Management Board has many exemplars that it can rely on as resources for thorny problems associated with administering a complex multi-governmental agency, including the National Center for Interstate Compacts at the Council of State Governments, other interstate compact agencies, and other state-tribal water rights administrations.176

III. Legislative Developments

A. Federal Legislation

Federal lawmakers introduced several bills that would have affected interstate compacts. None of the bills progressed, and none would have significantly altered the compact landscape; nevertheless, they illustrate issues with existing compacts, trends, and federal interest in easing barriers to professional licensing.

One bill, the “Military Interstate Children’s Compact Commission Improvement Act,” directed the Secretary of Defense, in consultation with the states, to develop recommendations to improve and fully implement the Interstate Compact for Educational Opportunity for Military Children.177 The Department of Defense helped create the compact and still contributes funding to the MIC3, which administers the compact.178 The compact streamlines interstate educational transfers of military-family students due to frequent relocation of service members.179

The bill identified two specific requirements for the Secretary to consider with the states: (1) removing barriers to enrolling children in school without requiring the parent or child to be physically present in the state, and (2) ensuring that children who receive special education may access the same services and supports in their new schools.180 The bill also identified other considerations181 but curiously not the scrivener’s error discussed above.182

Federal legislators and agencies have often taken a lead role in directing changes to compacts. For example, following several incidents on the Washington Metropolitan Area Transit Authority’s Metrorail (the Metro), the Federal Transit Commission assumed oversight of the Metro and issued several corrective directives before transferring oversight to a new Washington Metrorail Safety Commission.183

Another bill, the Compacts, Access, and Responsible Expansion for Mental Health Professionals Act of 2022, directed the Secretary of Health and Human Services, acting through the Administrator of the Health Resources and Services Administration, to establish a grant program called the Mental Health Licensure Portability Program.184 This program would incentivize counselors to practice in states that have entered into interstate compacts for the purpose of expanding the workforce of credentialed mental health counselors and to develop and operate interstate compact commissions in those states.185

The states were already in the process of adopting a new Counseling Compact when this Senate bill was introduced; indeed, less than two weeks later, the tenth state enacted the compact, which made the compact effective.186 As of the end of 2022, seventeen states have enacted the Counseling Compact. Apparently, no federal incentives were needed to get states to join the compact but could still help develop and operate the Counseling Compact Commission.

Finally, another bill, the “Student Veteran Emergency Relief Act of 2022,” contained provisions that would require states to allow a servicemember or spouse of a servicemember to practice with a current license from any state for the duration of a military order.187 The bill also recognized that some servicemembers and their spouses may be licensed through an existing interstate compact and provided that those persons would remain subject to the terms of the compact and applicable state law.188 This is the second bill, in as many years, to introduce the same universal licensure recognition for servicemembers and their spouses.189 Last year’s developments article discussed some differences between universal licensure and licensure through interstate compacts.190

B. State Legislation

The following is a summary of significant 2022 state bills and enacted laws relating to interstate compacts.

1. New Interstate Compacts

While not an interstate compact, a new creature of interstate cooperation is underway in Oregon and Washington. Oregon and Washington both passed legislation that authorizes local governments from each state to create an interlocal bridge authority between local governments in the two states.191 Both states had long-standing existing law generally authorizing interstate interlocal cooperation.192 Under the new bistate legislation, the new authority will have the power to raise federal funds, issue tax-exempt bonds, and raise and manage toll revenue, which was missing or limited in the states’ existing laws.193 Significantly, the legislation specifies that the new authority will be governed by the law of the state where the authority’s principal office is located and that the legislation applies where a conflict arises with other state law.194 This requirement should eliminate legal questions over which state’s law applies to the new authority, which is a common source of litigation with interstate compacts.195

The new legislation is a creative and necessary solution to replacing the functionally obsolete Hood River Interstate Bridge that crosses the Columbia River and connects the two states. A Bridge Replacement Bi-State Working Group of local officials in both states196 has met for several years to develop design alternatives, begin obtaining entitlements and permits, and create a governance structure.197 With the new legislation, the bi-state bridge authority will have sufficient power to address the project’s major hurdles and have a level of cooperation necessary to better compete for funding to construct the bridge, and to manage and maintain the bridge in the long-term.

The Bridge Replacement Bi-State Working Group is in the process of writing the Commission Formation Agreement that will officially create the new authority.198 This process includes making pivotal decisions about the new entity, such as choosing the commission’s principal place of business.199

2. States Joining Compacts

Typically, a state joining an existing compact is not much to report; however, in 2022, Massachusetts enacted legislation to become the fiftieth state to join the Interstate Wildlife Violator Compact.200 The Interstate Wildlife Violator Compact is now one of the few interstate compacts with all fifty states as members. The first states enacted the compact thirty-five years ago in 1987,201 so this milestone has been a long time coming. The compact requires member states to report poaching convictions to a centralized database and allows member states to recognize each other’s suspensions and revocations of hunting and fishing licenses through reciprocal suspension or revocation. Having all fifty states in this compact is important because it prevents safe havens for poachers, who cannot commit new wildlife crimes without those crimes being reported to all states prior to issuance of hunting or fishing licenses.

3. Modifications to Existing Compacts

Many reasons exist that a state may modify the legislation that enacts a compact to which it is a member, including changes in circumstances within the state, motivation to leverage the compact to achieve a specific state aim, addressing an unanticipated limitation, or correcting a legislative error. Legislative changes to compacts in 2022 illustrate these reasons. A compact is a law, but a state may not amend a compact like any other law because compact amendments may materially alter the state’s enrollment in the compact or impact other compact members.202

Virginia enacted legislation adding the Arland D. Williams, Jr. Memorial Bridge (formerly the 14th Street Bridge) to the Potomac River Bridge Towing Compact.203 Washington, D.C. and Maryland are the other members of that compact.204 The compact authorizes each state’s law enforcement agents and other traffic authorities to remove abandoned or disabled vehicles and various auto accoutrements from bridges otherwise outside of that agent’s jurisdiction.205 Neither Maryland nor the District of Columbia has passed substantially similar legislation to add this bridge, so this change to the compact is not yet effective, which means that law enforcement agents and other traffic authorities technically do not have the authority to operate on the bridge, unless it is independently within their jurisdiction.

Maryland enacted legislation to acknowledge material discrepancies in amendments to the Potomac River Compact that it and Virginia had previously enacted.206 The Potomac River Compact establishes the Potomac River Fisheries Commission,207 which manages and conserves fisheries on the Potomac River.208 In 2007 and 2013, each state passed legislation to amend the compact in relation to commissioner compensation, fishing violation fines, and oyster inspection taxes; however, Maryland’s legislation did not mirror Virginia’s.209 The discrepancies between the amendments were significant enough that each state has since treated the compact differently.210 Maryland’s legislation corrects these discrepancies by clarifying the meaning of the amendments and their effectiveness.

Louisiana amended its legislation enacting the Southern Rapid Rail Transit Compact that adds additional powers and authorities for the Southern Rail Commission (SRC).211 This compact originally created the SRC to study the feasibility of rapid rail transit service between the member states.212 The SRC was mentioned above in relation to the IIJA.213 The compact amendments alter the SRC’s duties, purpose, and powers.214 Two of the amendments are identical and expand the SRC’s purpose and duties to include taking “all steps that [the SRC] may deem necessary and appropriate in order to establish and maintain [passenger rail service].”215 The third amendment adds more commission powers, including the power to prepare grant applications and to enter into agreements with various passenger rail service entities.216 None of the other SRC members passed substantially similar legislation, so the amendments may not yet be effective.217

In the same bill, Louisiana also directed its Department of Transportation to plan the scope, schedule, and budget to secure approvals and permits to begin intrastate passenger rail service between Baton Rouge and New Orleans.218 The findings in the legislation for intrastate rail service specifically mentions the IIJA funds,219 but the direction to the Department of Transportation only states that the Department may apply for funds generally, with no mention of the IIJA.220

New Hampshire enacted the new Interstate Compact for the Placement of Children (ICPC),221 which becomes effective when thirty-five states have adopted the new ICPC,222 in accordance with the threshold requirement in the new ICPC.223 This contingency is necessary because New Hampshire remains a member of the current ICPC until the new ICPC becomes effective, which may be many years away.

While this bill enacting the new ICPC was working its way through the New Hampshire General Court, New Hampshire Governor Sununu sent a letter to other governors urging them to adopt the new ICPC.224 Governor Sununu is not the only advocate for the new ICPC. In 2018, the Conference of Chief Justices approved a resolution encouraging states to enact the revised ICPC and urging the new interstate commission to include a representative of the Conference of Chief Justices and Conference of State Court Administrators.225 New Hampshire’s enactment of the new ICPC was a response to a particular missing child case, not the Conference of Chief Justices recommendation.226

New Hampshire’s law also amended its application of the current ICPC relating to placement of children with parents. As discussed above, there is a significant split among the states about whether the current ICPC applies to non-custodial, out-of-state parents.227 New Hampshire’s new law states that the ICPC does not apply to parents if they prove to the court a substantial relationship with the child and the court makes a written finding that placement is in the best interest of the child.228 These provisos are not found in the current ICPC; however, these provisos seem to be implementing provisions for the current ICPC that do not change or impair New Hampshire’s implementation of the compact.

Vermont also enacted legislation to join the new ICPC.229 Vermont’s law includes a provision like New Hampshire’s that triggers repeal of the old ICPC once thirty-five states have enacted the new ICPC; however, Vermont’s law makes the new ICPC effective eighteen months after thirty-five states enact the compact.230 This delay in the effective date is not in the new ICPC model legislation.231 Because the other states that have enacted the new ICPC will repeal the current ICPC upon the thirty-fifth state’s enactment of the new ICPC, Vermont will have a gap in time in which it uses the current ICPC, along with just fifteen states (or fewer), before it joins the thirty-five states that adopt the new ICPC. Vermont’s legislation also may not count toward the thirty-five-state threshold, as it would not be effective upon the thirty-fifth state enactment. Thus, Vermont could miss the opportunity to be involved in the first ICPC commission meetings; develop initial rules and bylaws; select commission staff; and participate in other events during the new commission’s first eighteen months.

In contrast to the silence in the new ICPC regarding transition between the current and new ICPCs, in 2015, the National Council of State Boards of Nursing approved a new “enhanced” Nurse Licensure Compact to replace the existing Nurse Licensure Compact initially approved in 1998. Article X of the new Nurse Licensure Compact specifies the following transition requirements:

a. This Compact shall become effective and binding on the earlier of the date of legislative enactment of this Compact into law by no less than twenty-six (26) states or December 31, 2018. All party states to this Compact, that also were parties to the prior Nurse Licensure Compact, superseded by this Compact, (“Prior Compact”), shall be deemed to have with- drawn from said Prior Compact within six (6) months after the effective date of this Compact.232

This provision provided the states approximately three years to adopt the new compact, specified alternative effective dates so that early-adoption states would know with reasonable certainty when the new compact becomes effective, and terminated the states’ participation in the original compact on a date certain to ensure states would only be members of one compact. Without a similar provision in the new ICPC, states that have not adopted the new ICPC will still use the current ICPC after the new ICPC goes into effect, which may hinder placements across state lines where the sending and receiving states are using different ICPCs.

4. Withdrawal from Compacts

South Carolina repealed its membership in the Interstate Insurance Product Regulation Compact (Insurance Compact).233The Insurance Compact provides a single point of filing for insurance products that meet uniform standards approved by the Interstate Insurance Product Regulation Commission (Insurance Commission). When the Insurance Commission approves a product, that product may be used in all the member states unless a member state has elected to opt out of a specific uniform standard.234 The South Carolina Department of Insurance issued Bulletin 2022-03,235 which explained the reason for withdrawal in the following way:

Withdrawal from the Interstate Compact was recommended due to a conflict between a recently enacted South Carolina statute and the Interstate Compact law for long-term care insurance. After the re-enactment of the Interstate Compact in 2016, the South Carolina General Assembly enacted S.C. Code Ann. Section 38-72-75, S.C. Code of Laws, which requires all long-term care premium rate schedules to be filed with the South Carolina Department of Insurance (SCDOI) and makes those filings subject to the review and approval of the director or his designee.

Bulletin 2022-03 also explains that the filings previously approved by the Interstate Compact are not affected by the withdrawal.236 The Insurance Compact became effective in 2006; this is the first time that a state has withdrawn from the Compact, so the short- and long-term effects of withdrawal, if any, are unknown.

Indiana passed a law that requires the legislature to regularly evaluate compacts to which Indiana is a member and to determine whether the state should remain or withdraw from those compacts.237 Under the new law, the state’s Interim Study Committee on Government will review compacts on a biennial basis.238 The committee will evaluate all compacts that have been operational for at least two years and recommend to the legislative council whether to continue membership in each compact.239 Concurrently, Indiana gave itself more homework by joining three compacts in the same year in which this compact oversight law passed.240

5. Other State Legislation Involving Interstate Compacts

Kentucky enacted a joint resolution that directs state licensing boards to consider joining interstate compacts or establishing reciprocity procedures with other states for the purpose of increasing the mental health workforce in Kentucky.241 Regarding compacts, state legislatures, not agencies or boards, enact compacts,242 so the language of the resolution just suggests that the boards cooperate to develop interstate compacts for the legislature to enact. Three of the boards listed in the resolution—medical licensure, nursing, and professional counselors—already have interstate compacts facilitating multistate licensing, and Kentucky is a member of all three.243 Indeed, Kentucky enacted the Counseling Compact on the same date as the resolution.244

IV. One Final Thing

A passionate batch of train lovers exchanged their favorite memories of Metro travel for a chance to join the November 15, 2022, inaugural journey of the Silver Line Extension to the Washington Metrorail.245 The Washington Metropolitan Area Transit Authority (WMATA) invited passengers to share a favorite travel memory from the existing Metro rail for a chance to win a silver ticket for the first ride on the long-awaited new route.246 The $3 billion extension provides access to the Washington Dulles International Airport and six more stations in Northern Virginia.247 This festive first trip marked the end of a tumultuous relationship over the project between two compact entities: WMATA and the Metropolitan Washington Airports Authority (MWAA).248 MWAA managed both phases of construction for the Silver Line—a project that began in 2009249 and took significantly more time and money than anticipated.250 Now that the extension is complete, WMATA will manage the new line, which provides a significant contribution to passenger rail service to Washington, D.C., Virginia, and Maryland.251


1. Between 2008 and 2019, this annual Developments article was published in the ABA Section of Administrative Law and Regulatory Practice’s annual book, Developments in Administrative Law and Regulatory Practice. The Administrative Law section ceased publication of that book after the 2019 edition. Beginning in 2020, The Urban Lawyer has graciously continued to publish this overview.

2. See Michael L. Buenger, et al., The Evolving Law and Use of Interstate Compacts 35 (Am. Bar Ass’n, 2d ed. 2016).

3. U.S. Const. art. I, § 10, cl. 3.

4. U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 460 (1978).

5. Ne. Bancorp, Inc. v. Bd. of Governors, FRS, 472 U.S. 159, 176 (1985).

6. For a thorough discussion of these and other legal issues and leading case law and scholarship, see Buenger, supra note 2, at 68–86; Jeffrey B. Litwak, Interstate Compact law: Cases and Materials 37–82 (Semaphore Press, 4th ed. 2020).

7. No. 4:21-cv-00893-ALM, 2022 U.S. Dist. LEXIS 88739 (E.D. Tex. May 17, 2022).

8. Id. at *18.

9. Tex. Nat. Res. Code Ann. §§ 12.001–12.005; Okla. Stat. tit. 74, §§ 6105–06; Joint Resolution of Oct. 10, 2000, Pub. L. No. 106-288, 114 Stat. 919 (granting congressional consent to the Red River Boundary Compact).

10. 2022 U.S. Dist. LEXIS 88739, at *20. The court did not cite article IV of the compact, which specifies that the compact does not affect the jurisdiction of any litigation concerning title pending as of the date of the compact. W.C. Chapman initiated this litigation in 2021, more than twenty years after the date of the compact.

11. Id. at *22–28.

12. 49 F.4th 302 (3d Cir. 2022).

13. Id. at 311.

14. Id. at 307.

15. No. 21-16653, 2022 U.S. App. LEXIS 30691 (9th Cir. Nov. 4, 2022).

16. Id. at *2.

17. No. 19-5951, 2022 U.S. Dist. LEXIS 126425 (E.D. Pa. July 18, 2022).

18. Agreement Between the Commonwealth of Pennsylvania and the State of New Jersey, codified at 36 Pa. Cons. Stat. § 3503 & N.J. Stat. Ann. §§ 32:3-1–32:3-13, 32:3-23 (West 2022). A copy of the compact is available at [hereinafter DRPA Compact].

19. Keystone Outdoor Advert. Co., 2022 U.S. Dist. LEXIS 126425, at *7–8.

20. See infra text and discussion at notes 44–49.

21. 513 F.3d 95 (3d Cir. 2008).

22. The states superseded this compact with the Interstate Compact for the Supervision of Adult Offenders. For more about the Adult Offender Supervision Compact, see Interstate Comm’n for Adult Offender Supervision, (last visited Dec. 7, 2022).

23. Doe, 513 F.3d at 107.

24. Keystone Outdoor Advert. Co., 2022 U.S. Dist. LEXIS 126425, at *14.

25. Id. at *15.

26. Id. at *16.

27. Article I of the DRPA Compact, supra note 18, states:

The body corporate and politic, heretofore created and known as the Delaware River Joint Commission hereby is continued under the name of the Delaware River Port Authority (hereinafter in this agreement called the “Commission”), which shall constitute the public corporate instrumentality of the Commonwealth of Pennsylvania and the State of New Jersey for the following public purposes, and which shall be deemed to be exercising an essential governmental function in effectuating such purposes . . . .

28. E.g., Newberry Station Homeowners Ass’n v. Fairfax Cty., 740 S.E.2d 548, 556 (Va. 2013) (using Virginia law to characterize the Washington Metropolitan Area Transit Authority).

29. 33 F.4th 600 (1st Cir. 2022), cert. granted, 598 U.S. ___, 2023 WL 178401 (U.S. Jan. 13, 2023) (No. 22-227).

30. Id.

31. 33 F.4th at 605 (citing 11 U.S.C. § 101(27)).

32. Id.

33. N.J. Stat Ann. § 32:1-3 (West 2022); McKinney’s Unconsol. Laws of N.Y. § 6404 [as added by L. 1921 c 154, § 1].

34. Coughlin, 33 F.4th at 616 (Barron, C.J., dissenting).

35. Comment, Federal Question Jurisdiction to Interpret Interstate Compacts, 64 Geo. L.J. 87, 110 (1975).

36. Jacobson v. Tahoe Reg’l Plan. Agency, 566 F.2d 1353, 1359 n.8 (9th Cir. 1977). For more examples of scholars and courts trying to describe compact agencies, see Litwak, supra note 6, at 3–4.

37. E.g., Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1556, 1557–58 (10th Cir. 1997); Flathead Irrigation Dist. v. Jewell, 121 F. Supp. 3d 1008, 1024 (D. Mont. 2015). For a longer introduction to similarities and differences between an interstate compact and a state-tribal compact, see Rebecca Tsosie, Negotiating Economic Survival, The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 Ariz. L.J. 25 (1997).

38. 139 S. Ct. 1485, 1498 (2019).

39. Lac du Flambeau Band v. Coughlin, 598 U.S. ___, 2023 WL 178401 (U.S. Jan. 13, 2023) (No. 22-227).

40. No. 21-cv-226 (KSH) (CLW), 2022 U.S. Dist. LEXIS 114323, at *15–17 (D.N.J. June 28, 2022).

41. Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989).

42. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994); Port Auth. Trans-Hudson Corp v. Feeney, 495 U.S. 299 (1990); Lake Country Estates v. Tahoe Reg’l Plan. Agency, 440 U.S. 391 (1978).

43. Green v. Biddle, 21 U.S. 1 (1823).

44. See Buenger, supra note 2, at 54–66; Litwak, supra note 6, at 255–96.

45. No. 19-5951, 2022 U.S. Dist. LEXIS 126425 (E.D. Pa. July 18, 2022).

46. See supra text and discussion at notes 17–19.

47. 2022 U.S. Dist. LEXIS 126425, at *24 (citing Del. River Joint Toll Bridge Comm’n v. Sec’y Pa. Dep’t of Labor & Indus., 985 F.3d 189, 195 (3d Cir. 2021)).

48. Id.

49. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 42 (1994).

50. New Jersey v. Delaware, 552 U.S. 597, 629–30 (2008) (Scalia, J., dissenting).

51. 157 N.Y.S.3d 714 (App. Div. 2022).

52. Id.

53. Id. (citations omitted).

54. N.J. Stat. Ann. § 32:1-4 (West 2022); McKinney’s Unconsol. Laws of N.Y. § 6404 [as added by L. 1921 c 154, § 1].

55. E.g., Malverty v. Waterfront Comm’n, 524 N.E.2d 421 (N.Y. 1988).

56. See Int’l Union of Operating Eng’rs, Local 542 v. Del. River Joint Toll Bridge Comm’n, 311 F.3d 273 (3d Cir. 2002) (giving a long recitation of the express intent standard).

57. Id.

58. But see Alpha Painting & Constr. Co. v. Del. River Port Auth., No. 1:16-cv-05141-NLH-AMD, 2018 U.S. Dist. LEXIS 104695, at *19 (D.N.J. June 22, 2018) (mentioning the lack of Pennsylvania’s intent as evidenced by Pennsylvania’s lack of express language applying its Sunshine Law to the DRPA).

59. Int’l Union of Operating Eng’rs, Local 68 v. Del. River & Bay Auth., 688 A.2d 569, 574–75 (N.J. 1997).

60. Bunk v. Port Auth. of N.Y & N.J., 676 A.2d 118, 122 (N.J. 1996).

61. Ampro Fisheries v. Yaskin, 606 A.2d 1099, 1104 (N.J. 1992).

62. Textar Painting Corp. v. Del. River Port Auth., 686 A.2d 795, 798 (N.J. Super. Law Div. 1996).

63. 260 N.E.2d 525 (N.Y. 1970).

64. In Granados v. Port Authority of New York & New Jersey, No. 714754/2017, 2018 N.Y. Misc. LEXIS 2995, at *3 (Sup. Ct. Queens Cnty. Mar. 9, 2018), the court stated that federal courts have embraced the Agesen approach. But the cases the court cited seem to show that the federal courts applied Agesen only because federal courts apply state law in state law cases, not because they endorse Agesen.

65. See Wortham v. Port Auth. of N.Y. & N.J., No. 155687/2017, 2018 N.Y. Misc. LEXIS 2190, at *4 (Sup. Ct. N.Y. Cnty. May 30, 2018), aff’d, 110 N.Y.S.3d 539 (App. Div. 2019); In re Lopez v. Port Auth. of N.Y. & N.J., 98 N.Y.S.3d (App. Div. 2019); Rosario v. Port Auth. of N.Y. & N.J., 114 N.Y.S.3d 219 (App. Div. 2020); Ayars v. Port Auth. of N.Y. & N.J., 115 N.Y.S.3d 896 (App. Div. 2020); Ray v. Port Auth. of N.Y. & N.J., 124 N.Y.S.3d 189 (App. Div. 2020); Latteri v. Port Auth. of N.Y. & N.J., No. 33226/2018E, 2021 N.Y. Misc. LEXIS 4152 (Sup. Ct. Bronx Cnty. June 1, 2021).

66. See Port Auth. of N.Y. & N.J. v. Port Auth. of N.Y. & N.J. Police Benevolent Ass’n, 209 A.3d 897 (N.J. App. Div. 2019).

67. 8:21-cv-00540-PX, 2022 U.S. Dist. LEXIS 95576 (D. Md. May 27, 2022).

68. Id. at *8 (citations omitted).

69. See Buenger, supra note 2, at 54–66; Litwak, supra note 6, at 255–96.

70. 588 F. Supp. 3d 99, 107 (D.D.C. 2022).

71. Id. at 108, 111.

72. See Buenger, supra note 2, at 187–96; Litwak, supra note 6, at 303–15.

73. 990 A.2d 1048 (Md. 2010). Following a state vote in November 2022, the Maryland Court of Appeals had its name changed, becoming the Maryland Supreme Court, and the Court of Special Appeals became the Appellate Court of Maryland.

74. Id. at 1056.

75. No. 3:22-CV-475 (OAW), 2022 U.S. Dist. LEXIS 158047 (D. Conn. Sept. 1, 2022).

76. Similarly, in Carter v. White, No. 7:21-cv-00484, 2022 U.S. Dist. LEXIS 138874 (W.D. Va. Aug. 4, 2022), a case involving the ICC, the court used one case interpreting the Western Interstate Corrections Compact.

77. In 1955 and 1957, respectively, Tennessee and Arkansas enacted a “South Central Interstate Corrections Compact,” 1955 Tenn. Pub. Acts 628; 957 Ark. Acts 1035, but it never caught on in other states. Tennessee repealed the compact in 1971, 1971 Tenn. Pub. Acts 42. Arkansas has not repealed the compact, and it is the only state with the compact text in its statutes. Ark. Code Ann. §§ 12-49-201–12-49-202.

78. See, e.g., Taylor v. Peters, 361 P.3d 54 (Or. Ct. App. 2015) (discussing the ICC and the Western ICC and noting that the ICC was based on the Western ICC), aff’d, 383 P.3d 279, 280 (Or. 2016).

79. Compare Interstate Corrections Compact, art. III, with Western Interstate Corrections Compact, art. III(b), and New England Interstate Corrections Compact, art. III(b); see also Mitchell Wendell, Multijurisdictional Aspects of Corrections, 45 Neb. L. Rev. 520, 526–27 (1966).

80. See David Shichor & Dale K. Sechrest, Privatization and Flexibility: Legal and Practical Aspects of Interjurisdictional Transfer of Prisoners, 82 Prison J. 386 (2002); Emma Kaufman, The Prisoner Trade, 133 Harv. L. Rev. 1815 (2020).

81. Kaufman, supra note 80, at 1820.

82. No. 5:19-cv-00049-MR, 2022 U.S. Dist. LEXIS 42924 (W.D.N.C. Mar. 10, 2022).

83. Id. at *6.

84. See Litwak, supra note 6, at 303–18.

85. 188 Cal. App. 4th 1024 (2010).

86. Id. at 1027.

87. No. D080050, 2022 Cal. App. Unpub. LEXIS 4964 (Aug. 12, 2022).

88. Id. at *4. This is not a single incident. In 2021, in K.R. v. T.R., No. B300269, B305038, 2021 Cal. App. Unpub. LEXIS 99, at *12 (Jan. 8, 2021), the California Court of Appeal noted without comment that a trial court ordered an ICPC home study on an out-of-state father.

89. No. 76, 2022 N.Y. LEXIS 2070 (Oct. 25, 2022).

90. In re J.D.M.-J, 817 S.E.2d 755, 760 (N.C. Ct. App. 2018).

91. 512 P.3d 497 (Utah 2022).

92. Id. at 507.

93. No. 2:21-cv-1969-KJM-JDP, 2022 U.S. Dist. LEXIS 205603 (E.D. Cal. Nov. 10, 2022).

94. Tahoe Regional Planning Compact, art. III(g)(2).

95. Id.

96. 2022 U.S. Dist. LEXIS 205603, at *7.

97. Id. at *32.

98. Tahoe Regional Planning Compact, art. X(b).

99. E.g., Brown v. State, No. 1210172, 2022 Ala. LEXIS 51 (June 17, 2022); In re Davis, No. 10-21-00074-CR, 2022 Tex. App. LEXIS 3385 (May 18, 2022); State v. Reeves, 268 A.3d 281, 290 (Me. 2022).

100. See State v. Reeves, 268 A.3d at 289–90 (citing cases).

101. 429 F. Supp. 3d 1 (D.N.J. 2019), remanded for dismissal, 961 F.3d 234 (3d Cir. 2020), and cert. denied, 142 S. Ct. 561 (2021).

102. Act of Jan. 16, 2018, 2017 N.J. Sess. Law Serv. ch. 324 (codified at N.J. Stat. Ann. §§ 32:23-229 to 32:23-230).

103. New York v. New Jersey, ___ U.S. ___, 143 S. Ct. 918 (2023).

104. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021).

105. Infrastructure Investment and Jobs Act § 11506; see also Press Release, Appalachian Reg’l Comm’n, ARC Launches $73.5 Million Grant Initiative in FY22 to Spur Multistate Collaboration to Transform Appalachia’s Economy Through President Biden’s Bipartisan Infrastructure Law (Aug. 23, 2022),

106. About the Appalachian Region, Appalachian Reg’l Comm’n, (last visited Dec. 15, 2022).

107. Id.

108. See Appalachian Regional Initiative for Stronger Economies, Appalachian Reg’l Comm’n, (last visited Dec. 15, 2022).

109. Id. The strategic investment priorities include Building Business, Workforce Systems, Community Infrastructure, Regional Culture and Tourism, and Leaders and Local Capacity. ARC’s Investment Priorities for Appalachia, Appalachian Reg’l Comm’n, (last visited Dec. 15, 2022).

110. Appalachian Regional Initiative for Stronger Economies (ARISE) Request for Proposals, Appalachian Reg’l Comm’n (2022),

111. Infrastructure Investment and Jobs Act, Del. River Valley Reg’l Plan. Comm’n, (last visited Dec. 15, 2022).

112. N.J. Stat. Ann. § 32:27-1 (West); 73 Pa. Stat. Ann. § 701 (West).

113. About DVRPC, Del. River Valley Reg’l Plan. Comm’n, (last visited Dec. 15, 2022).

114. See Del. River Valley Reg’l Plan. Comm’n, supra note 110.

115. Infrastructure Investment and Jobs Act § 40601, Pub. L. No. 117-58, 135 Stat. 429 (2021) (amending 42 U.S.C. § 15907).

116. 42 U.S.C. § 15907(e) (2022); see also What We Do, Interstate Oil & Gas Compact Comm’n, (last visited Dec. 15, 2022).

117. Member/Associate State Sites, Interstate Oil & Gas Compact Comm’n, (last visited Dec. 15, 2022).

118. 16 U.S.C. § 15907(e), (h) (2022).

119. Press Release, Department of the Interior, Interior Department, Federal Partners Announce Interagency Effort to Clean Up Legacy Pollution, Implement Infrastructure Law (Jan. 18, 2022),; Memorandum of Understanding Between The Department of the Interior, et al., on Orphaned Well Site Plugging, Remediation, and Restoration (2022), [hereinafter MOU].

120. MOU, supra note 118, at 6–7.

121. Undocumented Orphaned Wells Research Program Division of Methane Mitigation Technologies, Dep’t of Energy, Off. of Fossil Energy & Carbon Mgmt., (last visited Dec. 15, 2022).

122. Press Release, Department of the Interior, Biden-Harris Administration Releases Final Guidance on New Orphaned Well Program, (Apr. 12, 2022),; U.S. Dep’t of the Interior, Bipartisan Infrastructure Law Sec. 40601 Orphaned Well Program Fy 2022 State Initial Grant Guidance (n.d.),

123. 16 U.S.C. § 15907(c)(3)(A)(i)(II)(aa) (2022).

124. FAA, FY 2022 Airport Terminal Program Final Sections 7 (2022),

125. Metro. Wash. Airports Auth., Board of Directors Meeting Minutes of July 20, 2022, at 2 (2022),

126. 49 U.S.C. § 49106(c); see also About the Airports Authority, Metro. Wash. Airports Auth., (last visited Dec. 15, 2022).

127. Metro. Wash. Airports Auth., supra note 125, at 10.

128. Infrastructure Investment and Jobs Act § 30019, Pub. L. No. 117-58, 135 Stat. 429 (2021) (amending 42 U.S.C. § 15907).

129. Md. Code Ann., Transp. § 10-204; Va. Code Ann. § 33.2-3000 (West); Act of Nov. 6, 1966, Pub. L. No. 89-774, 80 Stat. 1324, as amended by Joint Resolution of Apr. 7, 1988, Pub. L. No. 100-285, 102 Stat. 82.

130. Revitalizing WMATA: Getting to a Culture of Excellence: Hearing Before the Subcomm. on Government Operations of the Committee on Oversight and Reform, 107th Cong. 3–4 (2022) (opening statement by Chairperson of the Committee Hon. Gerald E. Connolly).

131. Infrastructure Investment and Jobs Act § 30019(c).

132. Id.

133. Id.

134. Revitalizing WMATA, supra note 129.

135. Off. of Inspector Gen. Washington Metro. Area Transit Auth., OIG 23-002, OIG Response to Congressional Inquiry—Communication Between the Washington Metropolitan Area Transit Authority (WMATA) and the Washington Metropolitan Safety Commission (WMSC) (2022),

136. Id.

137. Joint Resolution Granting Consent to the Washington Metrorail Safety Commission, Pub. L. No. 115-54, 131 Stat. 1093 (2017); Va. Code Ann. § 33.2-3101; Md. Code Ann., Transp. § 10-208.

138. Press Release, Washington Metropolitan Area Transit Authority, Metro Board Appoints Rene Febles Inspector General (Nov. 3, 2022),

139. RAISE Discretionary Grants, Biden-Harris Administration Announces Funding for 166 Projects to Modernize Transportation Across the Country and Make it More Affordable, Increase Safety and Strengthen Supply Chains, U.S. Dep’t of Transp. (Dec. 15, 2022),

140. About RAISE Grants, U.S. Dep’t of Transp. (Nov. 30, 2022),

141. Id.

142. Jon Davis, Illinois, Michigan Passenger Rail Projects Again Win RAISE Grant Awards, Midwest Interstate Passenger Rail Comm’n (Aug. 19, 2022),

143. Midwest Interstate Passenger Rail Comm’n, (last visited Nov. 20, 2022).

144. Davis, supra note 141.

145. Establishment of the Corridor Identification and Development Program, 87 Fed. Reg. 29,432 (May 13, 2022).

146. Midwest Interstate Passenger Rail Commission, Comment Letter on FRA’s request for comments on Corridor Identification and Development Program (Mar. 8, 2022),

147. Id. at 4.

148. Press Release, Southern Rail Commission, Louisiana Awarded $20 Million in RAISE Grant Funding for Baton Rouge-New Orleans Passenger Rail (Aug. 10, 2022),

149. Act of June 30, 1982, Pub. L. No. 97–213, 96 Stat 150; La. Stat. Ann. § 48:1671; Miss. Code. Ann. § 57-45-1 (West); Ala. Code 1975 § 37-11-1.

150. Infrastructure Investment and Jobs Act § 22910, Pub. L. No. 117-58, 135 Stat. 429 (2021) (amending 42 U.S.C. § 15907).

151. Bipartisan Infrastructure Law Information from FRA, Fed, R.R. Admin., U.S. Dep’t of Transp., (scroll down to the list of “Recent Milestones”) (last visited Dec. 18, 2022).

152. Fed, R.R. Admin., Interstate Rail Compact Grant Program Webinar, Fed, R.R. Admin., U.S. Dep’t of Transp. (June 16, 2022), The FRA webinar included Knox Ross, SRC Chairman, John Spain, SRC Vice-Chairman, Laura Kliewer, Director of the Midwest Interstate Passenger Rail Commission, and Dan Logsdon, Director of the National Center for Interstate Compacts, Council of State Governments. Id.

153. Village of Somers Water Diversion Application, Wis. Dep’t of Nat. Res., (last visited Dec. 18, 2022).

154. Great Lakes-St. Lawrence River Basin Water Resources Compact § 4.9, Great Lakes Compact Council, (last visited Dec. 29, 2022). Wisconsin codified its enactment of this compact provision at Wis. Stat. Ann. § 281.343(4)(c) (West).

155. Wis. Stat. Ann. § 281.346(4)(e)(1)(h)(j) (West). Diversions for communities that are completely outside the Great Lakes Basin, but within a county that straddles the basin, require approval from the two entities that oversee the compact: the Great Lakes-St. Lawrence River Basin Water Resources Council and the Great Lakes-St. Lawrence River Basin Water Resources Regional Body.

156. Wis. Stat. Ann. § 281.343(4)(c)(4) (West). Diversions require review by the regional body if the water loss would average 5,000,000 gallons or more per day in a 90-day period. See also Somers Diversion DNR Approval: Findings of Fact, Conclusions of Law, and Diversion Approval (2022),

157. Letter from Public Services Comm’n of Wis. to Jason Peters, Administrator, Village of Somers (June 7, 2021),

158. Importations of Water Into and Exportations of Water From the Delaware River Basin; Discharges of Wastewater from High Volume Hydraulic Fracturing and Related Activities, 86 Fed. Reg. 66,250 (proposed Nov. 22, 2021) (to be codified at 18 C.F.R. pts. 410, 440).

159. Notice of Proposed Rulemaking & Public Hearing: Importations of Water Into and Exportations of Water From the Delaware River Basin; Discharges of Wastewater from High Volume Hydraulic Fracturing and Related Activities, Del. River Basin Comm’n, (last updated Mar. 21, 2022).

160. DRBC Regulation 440.3 (codified at 18 C.F.R. § 440.3 (2021)).

161. Wayne Land & Mineral Grp. v. Del. River Basin Comm’n, No. 3:16-cv-897, 2021 U.S. Dist. LEXIS 2004 (M.D. Pa. Jan. 6, 2021) (describing case history and denying defendant’s motion for summary judgment and plaintiff’s request for summary judgment in its favor).

162. The MIC3 website contains a list of and links to all of the states’ enactments. State Statutes, Mil. Interstate Children’s Compact Comm’n, (last visited Dec. 19, 2022).

163. Model Interstate Compact on Educational Opportunity for Military Children arts. II.A, III.A.1 (Mil. Interstate Children’s Compact Comm’n, n.d.),

164. The opinions are reprinted in the MIC3 docket book for its October 2022 annual meeting. Mil. Interstate Children’s Compact Comm’n, Docket Book October 19–20, 2022 (2022),

165. For an example of the states enacting a new compact rather than amending an existing compact, see Michael L. Buenger and Richard L. Masters, The Interstate Compact on Adult Offender Supervision: Using Old Tools to Solve New Problems, 9 Roger Williams U. L. Rev. 71 (2003) (giving the historical account of enacting a new Interstate Compact for the Supervision of Adult Offenders to replace the Interstate Compact for the Supervision of Parolees and Probationers). Other “new” compact efforts have been less successful. For example, only one-third of the necessary number of states have enacted the new Interstate Compact for the Placement of Children, and thus the new compact is still not effective. See The New ICPC is Not in Effect Until Passage by 35 States, Am. Pub. Human Servs. Ass’n, (last visited Dec. 19, 2022).

166. Mont. Code Ann. § 85-20-1901 (2021); Confederated Salish & Kootenai Tribes Ordinance No. 111-A.

167. CSKT-MT Water Compact, Confederated Salish & Kootenai Tribes of the Flathead Reservation, (last visited Jan. 5, 2023).

168. Id.

169. Flathead Reservation Water Management Board, Mont. Dep’t of Nat. Res. & Conservation, (last visited Dec. 19, 2022).

170. Id.

171. See Tsosie, supra note 37; see also, e.g., Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1556 (10th Cir. 1997); Flathead Irrigation Dist. v. Jewell, 121 F. Supp. 3d 1008, 1024 (D. Mont. 2015).

172. Flathead Reservation Water Management Board, Flathead Reservation Water Management Board Meeting Minutes from March 16, 2022,

173. Flathead Reservation Water Management Board, Flathead Reservation Water Management Board Meeting Minutes from October 13, 2022,

174. Id.

175. Interim Process for Certain Water Rights, Mont. Dep’t of Nat. Res. & Conservation, (last visited Dec. 29, 2022).

176. E.g., Fort Belknap-Montana Compact Board, Mont. Code Ann. § 85-20-1001; see S. Ute Indian Tribe/State of Colo. Env’t Comm’n, (last visited Dec. 29, 2022).

177. H.R. 8342, 117th Cong. (2022).

178. Background, Mil. Interstate Children’s Compact Comm’n, (last Dec. 29, 2022).

179. Id.

180. H.R. 8342, 117th Cong. § 2(b)(1) (2022).

181. Id. § 2(b)(2).

182. See supra notes 161–64 and accompanying text.

183. See FTA WMATA Corrective Actions, Fed. Transp. Auth., (last visited Dec. 29, 2022).

184. S. 4058 117th Cong. (2022).

185. Id. § 2(a).

186. Counseling Compact Model Legislation, Counseling Compact § 13.A (Dec. 4. 2020),

187. H.R. 7939, 117th Cong. § 19 (2022).

188. Id.

189. See Military Spouse Licensing Relief Act of 2021, H.R. 2650, 117th Cong. (2021).

190. Jeffrey B. Litwak & Elie Steinberg, Developments in Interstate Compact Law and Practice 2021, 51 Urb. Law. 283, 325–26 (2022).

191. 2022 Wash. Sess. Laws ch. 89; 2022 Or. Law ch. 7.

192. Or. Rev. Stat. § 190.420; Wash. Rev. Code § 39.34.040.

193. Id.

194. 2022 Wash. Sess. Laws ch. 89 § 13(1)(a), (c); 2022 Or. Law ch. 7 § 13(2), (4).

195. See supra notes 43–69 and accompanying text; see also Buenger, supra note 2, at 139–62; Litwak, supra note 6, at 375–96.

196. The local governments involved in the Bi-State Working Group are Oregon’s Hood River County, City of Hood River, and Port of Hood River, and Washington’s Klickitat County, City of White Salmon, and City of Bingen. See Bridge Replacement Bi-State Working Group (BSWG), Port of Hood River, (last visited Dec. 29, 2022).

197. Id.

198. Hood River-White Salmon Bridge Replacement Project Bi-State Working Group Meeting Minutes (Sept. 19, 2022),

199. Hood River-White Salmon Bridge Replacement Project Bi-State Working Group Meeting Minutes (Oct. 3, 2022),

200. 2022 Mass. Legis. Serv. ch. 145 (H.B. 4442) (West).

201. Or. Rev. Stat. Ann. § 496.750 (West); Colo. Rev. Stat. Ann. § 24-60-2602 (West); Nev. Rev. Stat. Ann. § 506.010 (West).

202. See Buenger, supra note 2, at 262–65.

203. 2022 Va. Acts ch. 6 (amending Va. Code Ann. § 46.2-1239.1 (West)).

204. D.C. Code §§ 9–1117.01 to –1117.05 (1991); Md. Code Ann., Transp. § 25-301 (West).

205. Va. Code Ann. § 46.2-1239.1 Art. III (West).

206. 2022 Md. Laws ch. 471.

207. Va. Code Ann. § 28.2-1001 (West); Md. Code Ann., Nat. Res. § 4-306 (West).

208. Va. Code Ann. § 28.2-1001 Art. II (West).

209. Maryland Senate, Judicial Proceedings Comm., Testimony of Senator Jill P. Carter in Favor of SB466, 444th Sess. (Mar. 1, 2022),

210. Id.

211. 2022 La. Acts ch. 764, § 1.

212. Southern Rapid Rail Transit Compact, art. I; see La. Stat. Ann. § 48:1671.A.

213. See supra notes 147–48 and accompanying text.

214. 2022 La. Acts ch. 764, § 1.

215. Id.

216. Id.

217. The SRC compact does not specify whether or how it may be amended. Typically, all member states must enact the same or substantially similar amendments. See Buenger, supra note 2, at 26.

218. 2022 La. Acts ch. 764 § 2.

219. Id. § 2.A(1).

220. Id. § 2.B(1).

221. 2022 N.H. Laws ch. 324:2.

222. Id. ch. 324:4.

223. The New ICPC – Final Draft 2009, Art. XIV.B is available at The New ICPC is Not in Effect Until Passage by 35 States, Am. Pub. Human Servs. Ass’n, (last visited Dec. 29, 2022).

224. New Hampshire Governor Chris Sununu, Press Release, Governor Chris Sununu Writes to Fellow Governors Urging Updates to Interstate Compact for the Placement of Children (ICPC) (May 9, 2022), (a link to Governor Sununu’s letter is in the press release) [hereinafter Sununu Press Release].

225. Conference of Chief Justices, Resolution 6, In Support of the Revised Interstate Compact for the Placement of Children (Jan. 31, 2018),

226. Sununu Press Release, supra note 223.

227. See supra notes 85–92 and accompanying text.

228. 2022 N.H. Laws 324:5.

229. 2022 Vt. Acts & Resolves ch. 101 §§ 1, 2.

230. Id. § 3.

231. New ICPC, supra note 222.

232. Nurse Licensure Compact art. X (2015),

233. 2022 S.C. Acts 195 § 16 (repealing Title 38, chapter 95).

234. Interstate Insurance Product Regulation Compact, Art. VII.3, (last visited Jan. 5, 2023).

235. Michael Wise, S.C. Dep’t of Ins., Bull. No. 2022-03, Withdrawal from the Interstate Insurance Product Regulation Compact (2022),

236. Id.

237. 2022 Ind. Legis. Serv. P.L. 114-2022 (H.E.A. 1075) (West).

238. Id.

239. Id.

240. Indiana joined the following compacts in 2022: Psychology Interjurisdictional Compact, 2022 Ind. Acts no. 65; Interstate Medical Licensure Compact, 2022 Ind. Acts no. 60; and the Audiology and Speech-Language Pathology Compact, 2022 Ind. Acts no. 149.

241. 2022 Ky. Acts ch. 114.

242. See Buenger, supra note 2, at 35.

243. Interstate Medical Licensure Compact, (last visited Dec. 29, 2022); Nurse Licensure Compact, (last visited Dec. 29, 2022); Counseling Compact, (last visited Dec. 29, 2022).

244. 2022 Ky Acts ch. 127. The resolution and Counseling Compact legislation were both enacted on April 8, 2022.

245. Press Release, Washington Metropolitan Area Transit Authority, Metro Customers Invited to Ride the First Passenger Train to Six New Silver Line Stations (Nov. 7, 2022),

246. Id.

247. Overview New Rail Connections to Dulles International Airport, Reston, Herndon, and Eastern Loudoun County, Washington Metro. Area Transit Auth., (last visited Dec. 29, 2022).

248. During MWAA’s construction of the Silver Line, a whistleblower complaint prompted WMATA’s General Manager to request that WMATA’s Inspector General investigate alleged construction defaults caused by MWAA’s contractor. The IG’s resulting report found extensive concrete defects. See WMATA Office of the Inspector General, Special Project Report: Dulles Silver Line Project (Phase II) Evaluation and Analysis Precast Concrete 1 (Wash. Metro. Area Transit Auth., 2020), The contractor settled a claim with the Department of Justice and Commonwealth of Virginia for violations of the False Claims Act and Virginia Fraud Against Taxpayers Act, among other claims. Consolidated Complaint, U.S. and VA ex rel., Davidheiser v. Univ. Concrete Products Corp., No. 1:16-cv-316-TSE-IDD (E.D. Va. 2019), ECF No. 33. MWAA and WMATA eventually reached an agreement for MWAA to cure the defects—a necessary step given that MWAA needed WMATA’s approval of the project for MWAA to transfer responsibility of the line to WMATA. See generally Jordan Pascale, All of Your Silver Line Questions, Answered, dcist (Nov. 14, 2022, 2:16PM), (scroll down to What took so long?).

249. Project Profile: Dulles Corridor Metrorail Project, U.S. Dep’t of Transp. Fed. Highway Admin., (last visited Dec. 19, 2022).

250. Sarah Y. Kim, Update: Silver Line To Receive Additional $250M For Completion, Airports Authority Says, dcist (July 19, 2022),

251. Press Release, Washington Metropolitan Area Transit Authority, Silver Line Extension Transferred to Metro’s Control (June 23, 2022),

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Jeffrey B. Litwak and Marisa Fiat

General Counsel, Columbia River Gorge Commission; Adjunct Professor of Law, Lewis and Clark Law School; author of Interstate Compact Law, Cases and Materials (4th ed. 2020), co-author of The Evolving Law and Use of Interstate Compacts (2d ed. 2016); Legal Advisor to the Council of State Governments National Center for Interstate Compacts. Lewis and Clark Law School, JD 2023.