This article discusses a wide range of judicial, administrative, and legislative developments in interstate compact law in 2021. We discuss reported and unreported cases as both illustrate how courts apply or distinguish principles of compact law. We discuss enacted and unenacted bills because both illustrate policy conversations involving interstate compacts. Discussions of many cases, agency actions, and legislative actions present the 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. 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.
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 . . . .” 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 powers or that could affect the non-compacting states. 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.
Three district court decisions in 2021 illustrate how courts do not always agree whether a compact has received congressional consent. Each decision concluded that the plaintiffs in those cases could not rely on 42 U.S.C. § 1983 to assert a claim for alleged violation of the Interstate Corrections Compact (ICC), noting that the ICC is not federal law because it does not have congressional consent. The ICC is an agreement between thirty-nine states and the federal government that authorizes transferring inmates from a facility in one state to a facility in another state. Collectively, the three district courts cited decisions from the Eighth, Ninth, and Tenth Circuits discussing the lack of consent. However, other courts have noted that the ICC did receive consent pursuant to the Crime Control Consent Act of 1934. For example, in Taylor v. Peters, the Oregon Court of Appeals noted that the ICC was drafted pursuant to authority in the Crime Control Consent Act of 1934 and concluded that the plaintiff could maintain a habeas corpus action in Oregon courts, claiming that the conditions of his incarceration violated federal and state constitutional claims. The Crime Control Consent Act is a broad statement of consent for states to enact compacts relating to crime control and does not mention any compact by name or other reference. Many compacts assert consent under the Act, including the Interstate Compact on Detainers, the Interstate Compact for the Supervision of Adult Offenders, and the Interstate Compact for Juveniles. No clear legislative history of the development of the ICC references the Crime Control Consent Act. The disagreement on whether the ICC has received consent is significant because it results in persons housed pursuant to the ICC being able to bring different claims under the ICC, depending on the state of their conviction.
B. What Is an Interstate Compact and Compact Agency?
Interstate compacts are one of many tools that states use to cooperate across state lines. Other common tools involve intergovernmental agreements between state agencies or officials and uniform or model laws. States, courts, and litigants often mistakenly refer to these and other forms of cooperation as an interstate compact. For example, in 2021, in Geathers v. State, the prosecutor referred to the Maryland Uniform Interstate Depositions and Discovery Act as an interstate compact. Nearly 100 years ago, scholars explained that interstate compacts are not uniform or model laws. Courts typically conclude the same. Organizations, such as the Uniform Law Commission, draft model laws and uniform laws to assist states with drafting legislation where some level of uniformity better achieves the policy intent. States do not have to consider or enact uniform laws, and, despite the name, the states do not have to enact the uniform text. This outcome differs from compacts where the contractual nature of a compact requires substantive sameness in the states’ enactments. Amending a compact also requires all the party states to do so, whereas uniform laws are enactments by each state independent of other states, so a state may amend or repeal a uniform law without consideration of other states’ enactments of that uniform law.
Similarly, litigants often argue that an interstate compact agency is a state agency or a federal agency because they want a court to apply a state or federal law to the agency. Typically, courts reject those arguments. In Wilson v. Attorney General, the Missouri Court of Appeals concluded that the Bi-State Development Agency of the Missouri-Illinois Metropolitan District (Bi-State) was not an agency of the state for the purpose of using the Missouri State Legal Expense Fund to satisfy a judgment against Bi-State. Wilson argued that state statutes and the Bi-State compact show that it is controlled by and answerable to Missouri. The court, however, pointed to several elements of the compact that it concluded intended to create something other than a state agency: the compact created an interstate compact entity; the compact entity enjoys its own sovereign immunity arising from the compact; the compact district includes land in Illinois; and, finally, each state appoints half of the commissioners, and any binding action requires a majority of commissioners from both states.
Courts often cite factors similar to those that the Missouri Court of Appeals pointed out. For example, in Yancoskie v. Delaware River Port Authority, the Pennsylvania Supreme Court concluded that the Delaware River Port Authority (DRPA) was not an integral part of the Commonwealth entitled to sovereign immunity, citing the description of the DRPA in Article I of the compact as a “public corporate instrumentality of the Commonwealth of Pennsylvania and the State of New Jersey . . . exercising an essential governmental function” and Article VII of the compact, specifying the DRPA’s financial independence from Pennsylvania and New Jersey. The court also noted that the DRPA replaced a previous state agency.
C. Application of the Federal Administrative Procedure Actand Other Federal Law to Compact Agencies
One of the more vexing problems in interstate compact law is what administrative procedure applies to a compact agency. Compact agencies are not federal agencies, and, as discussed above with Wilson v. Attorney General, compact agencies are not state agencies. The federal APA does not apply because it only applies to an “agency,” which the APA defines as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . .” State APAs generally do not apply because, as discussed below, a compact must specify the application of state law for that law to apply.
Nevertheless, courts sometimes apply the federal or a state APA in specific situations or when they do not know what else to do. In 2021, in Delaware Riverkeeper Network v. Delaware River Basin Commission, the U.S. District Court for the District of New Jersey had to determine the standard of review to apply to a motion to correct the administrative record because the compact creating theDelaware River Basin Commission (DRBC) does not specify the applicable standard of review and the DRBC is not subject tothe federal APA. With little else to consider, the court considered the parties’ arguments in this case and other plaintiffs’ arguments in other cases:
[T]he parties in this matter seem to all agree that the standards employed under the APA are instructive. Further, though not directly confronted with the issue of the proper standard, this Court has noted that other plaintiffs have premised their appeals under standards associated with the APA. Accordingly, in the absence of a contrary standard in the Compact itself, the Court will turn to cases interpreting the APA as instructive, but not binding, authority.
Considering the parties’ arguments in this case was understandable, but reliance on the premise of other plaintiffs’ claims in other cases is dubious because those plaintiffs have no better idea of the applicable standard of review. Indeed, plaintiffs in compact cases routinely argue for the application of the federal or a state APA because they believe that those standards are favorable, even if contrary to well-established law concluding otherwise. For example, in Zimmerly v. Columbia River Gorge Commission, the plaintiffs premised their arguments on the application of the Washington State APA and other state law, which the court concluded did not apply.
The District Court’s approach in Delaware Riverkeeper Network is not unique. In Old Town Trolley Tours v. Washington Metropolitan Area Transit Commission, the D.C. Circuit had to decide what standards of review to apply, and similarly, with little statutory direction, landed on applying the federal APA after considering other factors. The D.C. Circuit reasoned:
We [have decided to adopt by reference the standards contained in 5 U.S.C. § 706(2)(A)–(D) of the federal APA] because this court had basically been following those standards in reviewing Commission actions under the pre-amended Compact. Anyone familiar with these decisions—that is, anyone involved in drafting and approving revisions to the Commission’s licensing authority—would likely have taken it for granted that we would follow the same course in cases arising under the amended Compact. For another thing, federal judicial review of agency action according to the standards just quoted is so commonplace that, wholly aside from our past practice, it would have been natural to assume that courts would treat Commission decisions in the same manner. Finally, it is worth remembering that subsections (A) through (D) of APA § 706(2) contained no innovations. When signed into law in 1946, these provisions merely “restate[d] the present law as to the scope of judicial review.”
In Schindler Elevator Corp. v. Washington Metropolitan Area Transit Authority, the D.C. Circuit affirmed a district court decision concluding that the Washington Metropolitan Transit Authority (WMATA) enjoys sovereign immunity from bid protest cases in federal courts. The district court had concluded that the WMATA is not an agency within the definition of agency in the federal APA, that there is a general consensus that interstate compact agencies are not federal agencies, and that the District of Columbia’s enactment of the Compact did not transform the WMATA into a federal agency. For all those points, the district court cited well-trod precedent. Most interesting in this case, however, is that district courts have previously concluded that the WMATA’s procurement decisions must be made in accordance with the federal APA, relying on a 1992 decision from the D.C. Circuit that “assumed, without deciding[,] that the WMATA was a federal agency and therefore its ‘procurement decisions must be reached in accordance with the APA.’” The district court concluded: “Consequently, [the 1992 D.C. Circuit decision] and it progeny provide little in the way of persuasive support for Schindler’s position that the WMATA is a federal agency for the purposes of the APA.” Finally, the district court rejected Schindler’s argument that prior cases concluded the WMATA was subject to suit because it is a “quasi-federal agency,” specifically noting that the Second Circuit rejected the “quasi-federal agency” doctrine as applied to interstate compact agencies. The D.C. Circuit’s decision affirmed the district court’s reasoning, which should mark the end of bid protest cases against the WMATA in federal court.
Where there is no sovereign immunity, cases involving interpretation or application of an interstate compact may typically be brought in federal court under federal question jurisdiction in 28 U.S.C. § 1331. Surprisingly, the first case to analyze and conclude that federal question jurisdiction exists for cases involving the application and interpretation of an interstate compact was in 1974 in League to Save Lake Tahoe. v. Tahoe Regional Planning Agency. Subsequently, in 1981, in Cuyler v. Adams, the U.S. Supreme Court concluded that an interstate compact with congressional consent is federal law, which firmly established federal question jurisdiction. Prior to League to Save Lake Tahoe, federal courts would evaluate cases involving the interpretation and application of interstate compacts for diversity jurisdiction. Determining diversity for compact agencies, which have connections to many states, is complex because a compact agency is considered a citizen of each member state, a principle that evolved in the 1950s. Since the U.S. Supreme Court’s Cuyler v. Adams decision in 1981, there have been only a handful of cases involving diversity jurisdiction. Interstate Medical Licensure Compact Commission v. Bowling, a 2021 decision, is one of those rare cases. There was no federal question because the Interstate Medical Licensure Compact does not have congressional consent.
In contrast to Schindler Elevator, in Unsuck DC Metro v. Washington Metropolitan Area Transit Authority, the District Court for the District of Columbia concluded that a cause of action exists for Unsuck DC Metro because the WMATA waived sovereign immunity for claims relating to the release of public records by consenting to suits in its Public Access to Records Policy (PARP) and in this particular case by not claiming sovereign immunity. Last year, this developments article discussed the court’s grant of summary judgment in this case, which construed and applied the PARP consistent with the federal APA because PARP section 1 specifies that WMATA must “interpret and apply [the PARP] consistent with the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, and federal practice, including when determining whether to waive exemptions.” Unsuck DC Metro appealed to the D.C. Circuit, and, in 2021, following oral argument, the D.C. Circuit remanded the case on its own motion for the district court to determine whether a cause of action exists and held the appeal in abeyance. The district court’s 2021 decision finding a cause of action was the court’s resolution on remand. Not surprisingly, Unsuck DC Metro and Delaware Riverkeeper Network illustrate that compact agencies may subject themselves to the application of the federal APA, even though the compact does not require its application, simply by specifying the APA in rules and policies or through claims, arguments, and briefing in a particular case.
Last year, this developments article discussed BNSF Railway Co. v. Clark County, in which the U.S. District Court for the Western District of Washington concluded that the federal Interstate Commerce Commission Termination Act (ICCTA) preempted a local government’s land use ordinance. Clark County had argued that its land use ordinance is required by and implements the federal Columbia River Gorge National Scenic Area Act and the Columbia River Gorge Compact. The National Scenic Area Act is Congress’s consent to the Columbia River Gorge Compact, authorizing the creation of an interstate commission, the Columbia River Gorge Commission, requiring the Commission and the Secretary of Agriculture to adopt a management plan, and requiring counties to adopt land use ordinances implementing the management plan, which must be approved by the Secretary of Agriculture. The district court acknowledged precedent from the Surface Transportation Board (which regulates railroads) and the Ninth Circuit, concluding that the ICCTA does not preempt state and local government implementation of federal environmental law, but concluded that the federal National Scenic Area Act is not the type of federal law that would survive preemption. The district court noted that Clark County enacted its National Scenic Area land use ordinance under state law authority and reasoned that the Commission is composed of members appointed by the states and is not a federal agency and that the Commission can veto objections of the Secretary of Agriculture. The Commission and Friends of the Columbia Gorge intervened in the district court proceeding and filed appeals of the district court decision to the Ninth Circuit. In 2021, the Ninth Circuit affirmed the district court’s decision.
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 a real property law that conflicted with the Virginia-Kentucky Compact of 1789, which preserved the application of Virginia’s real property law. Since then, courts have applied the principle with few deviations but with many variations on how they explain the principle.
That principle surprises many practitioners and judges unfamiliar with interstate compacts; however, one significant limit to the principle is that courts generally apply it only to state laws that would burden the implementation of a compact. For example, the New Jersey Supreme Court once noted that compact agency employees in one state must observe state traffic laws while on agency business in the other compacting state. One 2021 case, Phillips v. Metro Transit Agency, illustrates another example of state law that does not burden the implementation of the compact. In that case, the court noted,
Metro argues that Illinois tolling rules cannot apply to it because those rules impose a burden on the interstate compact without the concurrence of the State of Missouri. “[O]ne party to an interstate compact may not enact legislation that would impose burdens upon the compact absent the concurrence of the other signatories.”
Application of the Illinois two-year statute of limitations by itself would not unilaterally burden Metro because Missouri’s statute of limitations for personal injury is five years. Far from burdening Metro with a two-year limitation period, Illinois law would benefit Metro by applying a shorter limitation period than Missouri’s.
Concluding that a state law applies because it benefits a compact is not unique. In Hubble v. Bi-State Development Agency of Illinois-Missouri Metropolitan District, the Illinois Supreme Court reasoned that the Illinois Tort Immunity Act applies to Bi-State after concluding that it generally protects rather than burdens the compact.
Last year, this developments article discussed Delaware River Joint Toll Bridge Commission v. Oleksiak, in which the U.S. District Court for the Eastern District of Pennsylvania concluded that the Pennsylvania Secretary of the Department of Labor and Industry could not, without the Delaware River Joint Toll Bridge Commission’s consent, unilaterally interfere, direct, inspect, or regulate the Commission’s elevator operations by requiring the Commission to comply with Pennsylvania’s Uniform Construction Code elevator regulations and could not inspect and regulate the location of the Commission’s tanks, pumps, and other fuel dispensing devices at the Commission’s new administration buildings at the Scudder Falls Bridge. Pennsylvania appealed to the Third Circuit, which, in 2021, affirmed the district court, and the U.S. Supreme Court denied certiorari, also in 2021.
The reasoning in the district and circuit court decisions is not exceptional. It followed the long-standing principle that a state may not impose state law on a compact agency that is not reserved in the compact, except that one could readily question how inspecting elevators and fuel tanks and pumps at an administration building burdens the implementation of the compact, which, at base, was formed to build and manage interstate bridges. Dissatisfied with the legal position taken by the Commission, several Pennsylvania legislators introduced a bill in 2021 to grant the Pennsylvania Governor authority to veto actions taken by Pennsylvania Governor appointees and to provide for joint audits by the Pennsylvania and New Jersey state auditors. The bill passed out of the Pennsylvania House of Representatives and then was referred to Transportation Committee in the Pennsylvania State Senate, where it died without a hearing.
One provision found in many compacts allows the party states to apply state law to the agencies created in those compacts when the state law is concurred in by the other state. The problem with “concurred in” provisions is that courts apply them quite differently, as illustrated by cases involving the Port Authority of New York and New Jersey (PANYNJ). The PANYNJ compact has a “concurred in” provision. Generally, New York state courts apply an express intent standard to compacts, except for the compact creating the PANYNJ. 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. Federal courts apply the express intent standard. In contrast, New Jersey state courts do not apply the express intent standard to any compact. 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, when they are somewhat similar, when regulations do not conflict with regulations in the other state, and when laws express similar public policy.
Instead of applying the express intent test to the PANYNJ, New York state courts have held state law applicable to the PANYNJ when the law regulates the external conduct of the PANYNJ. Conversely, state law does not apply when it would regulate the internal conduct of the PANYNJ. This unique test for the PANYNJ first appeared in Agesen v. Catherwood, 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.
As discussed in this developments article last year, for several years, the PANYNJ has asked New York and New Jersey state courts to change the analytical method that they use to determine whether to apply state law to the PANYNJ. In those cases, the PANYNJ moved to dismiss claims seeking to apply state law, arguing that those laws failed the “express intent” test and that New York courts should abandon the Agesen standard and New Jersey courts should abandon the complimentary and parallel standard as applied to the Port Authority. The states’ courts consistently rejected the PANYNJ’s arguments to apply the more common express intent test simply because the courts did not see any reason to deviate from precedent, and that trend continued in 2021.
Missouri courts also apply the “complementary and parallel” standard to cases involving the Kansas City Area Transportation Authority (KCATA) but generally apply that standard more strictly than New Jersey courts. For example, in Banks v. Kansas City Area Transportation Authority, the Missouri Court of Appeals cited long-standing precedent concluding that the Missouri Human Rights Act was not complementary and parallel to the Kansas Act Against Discrimination because they contain different burdens of proof. Consequently, the plaintiff could not maintain a claim under the Missouri Human Rights Act against the KCATA.
Minor v. Delaware River and Bay Authority illustrates that a federal court may apply a state’s law simply because the court sits within that state. In Minor, the Delaware River and Bay Authority’s (DRBA) former deputy executive director sued the agency for breach of contract after the agency fired him. Because the DRBA is a bi-state agency, the U.S. District Court for the District of New Jersey had to determine whether there was a conflict between New Jersey’s and Delaware’s breach of contract laws. After concluding that the DRBA waived sovereign immunity for contract claims, the court cited Third Circuit precedent holding that the district court should apply New Jersey law because the case was in U.S. District Court for the District of New Jersey. But that precedent did not involve an interstate compact agency that was created by and exists in more than one state. At the very least, the court should have discussed whether Delaware’s choice of law rules would consider factors similar to New Jersey’s conflict of laws rules. In applying New Jersey’s conflict of laws rules, the court considered several factors that pointed to using Delaware’s breach of contract law—that Mr. Minor’s office was in Delaware, that he received Delaware unemployment benefits, and that he noted Delaware as his place of employment on his resume—but ultimately the court concluded that it should apply New Jersey’s breach of contract law because Mr. Minor was a resident of New Jersey and because New Jersey statutes adopting and governing the compact provided for appointment of the deputy executive director and Delaware law did not.
Cases in 2021 also illustrate that states may subject compact agencies to state law by reference in the compact, and compact agencies may subject themselves to state law by adopting or referring to those laws in their policies and regulations. In Scherich v. Wheeling Creek Watershed Protection and Flood Prevention Commission, the West Virginia Supreme Court applied West Virginia’s eminent domain law to the Wheeling Creek Watershed Protection and Flood Prevention Commission. It did not explain why it should apply state law; nevertheless, it did so properly because the compact creating the commission specifies that the states’ eminent domain laws apply.
In Rosario v. Port Authority of New York and New Jersey, the New Jersey Superior Court Appellate Division applied New Jersey’s Open Public Record Act to the Port Authority. As in the Scherich case, the court did not explain why. Although the Port Authority compact is silent about the application of the states’ transparency laws, the Port Authority’s Public Record Access Policy specifies that New York and New Jersey law apply. The Port Authority enacted that policy in 2014. Section 8 of the policy states:
This Public Records Access Policy is intended to comply with both the New York Freedom of Information Law and the New Jersey Open Public Records Act. To the extent any person who makes a request for records contends that the Policy is in any way inconsistent with the New York Freedom of Information Law or the New Jersey Open Public Records Act, the Policy shall be interpreted in a way that renders it consistent with those laws.
Had the Port Authority’s policy not specified New York and New Jersey law, the New Jersey law would not have applied. Prior to the Port Authority enacting its policy, the U.S. District Court for the District of New Jersey concluded that New Jersey’s Open Public Record Act did not apply to the Port Authority.
One issue not involved in the Rosario case that could arise in other cases is whether the Port Authority would need to disclose records when one state’s law holds them confidential but the other state’s law requires them to be released. As discussed above with the Unsuck DC Metro case, the Washington Metropolitan Area Transit Authority adopted a policy to be applied consistent with the federal Freedom of Information Act, which eliminates this potential for conflict between two states’ open public records laws.
E. Interpretation of Interstate Compacts
The nature of an interstate compact as a contract between the states suggests that the states should interpret compacts uniformly. States and courts, however, do not consistently do so, 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 noncustodial out-of-state parents. In one case, 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.” In 2021, in A.G. v. Cabinet for Health and Family Services, the Kentucky Supreme Court became the latest state high court to take sides in this split, noting that the ICPC “has been misapplied many times over, resulting in great harm and delay to families” and concluding that the ICPC does not apply to noncustodial parents. States sometimes apply the ICPC even when not required because the ICPC provides a means of gathering information before placing a child. The Kentucky Supreme Court did not do so in this case, noting that the state’s termination of A.G.’s parental rights was largely based on the amount of time that the child was out of the home, which was “attributable to obtaining an imprudently ordered ICPC home study.”
In contrast to Kentucky’s rejection of the application of the ICPC to noncustodial parents, courts in Massachusetts, Kansas, and West Virginia applied the ICPC to noncustodial parents with no discussion about the different interpretation of the compact. Curiously, in 2016, the Kansas Court of Appeals concluded that the ICPC does not apply to out-of-state noncustodial parents.
In another example of a nonuniform application of a compact, in State v. Urbina, the Ohio Court of Appeals relied on compact documents that at least one other court expressly concluded were not reliable. The Ohio Court of Appeals affirmed a trial court decision that in part denied a continuance to Urbina, who was on community control (probation) and had relocated from Ohio to Texas before being arrested and refusing a drug screen. The State of Ohio moved to revoke community control, and Urbina had requested six continuances. In denying yet another continuance, the trial court noted that the State had provided Urbina with records, including records of the Interstate Compact Offender Tracking System (ICOTS), which is operated by the Interstate Commission for Adult Offender Supervision pursuant to a compact that all fifty states and several territories have enacted. This ruling would be unremarkable, except that, several years prior, the Vermont Supreme Court concluded that records from ICOTS were not reliable enough for a court to deny a right to confrontation and to rely on the documents. The Vermont Supreme Court’s decision was curious because Article V of the Interstate Compact for the Adult Offender Supervision (ICAOS) specifically authorizes the Interstate Commission for Adult Offender Supervision, “To establish uniform standards for the reporting, collecting, and exchanging of data.” While neither the ICAOS nor the Interstate Commission’s rules specifically require states to admit ICOTS documents as reliable, doing so would seem a natural part of compact administration. The Ohio Court of Appeals properly relied on the ICOTS records, as do probably hundreds or more trial court cases around the country involving ICAOS.
In yet another example of courts struggling to interpret an interstate compact, in State v. Coale, the Missouri Court of Special Appeals interpreted the Interstate Agreement on Detainers, an interstate compact with forty-eight states, Puerto Rico, the Virgin Islands, the District of Columbia, and the federal government as members, by referring to Missouri’s own non-compact Intrastate Detainers Act. The court reasoned,
On the same day that the General Assembly enacted the legislation approving the IAD [Interstate Agreement on Detainers], the Legislature also passed the Intrastate Detainer Act. Because the IAD and the Intrastate Detainer Act “are component parts of the same general system[,] they should be construed together to the extent possible.” Decisions by the Court of Appeals in Intrastate Detainer Act cases will assist us in resolving some of the parties’ contentions in the present case.
The problem with using non-compact intrastate legislation to interpret an interstate compact is that one state’s apparent intent does not reflect the collective intent of all the party states. This is because only one state legislature enacts the non-compact intrastate legislation, whereas, an interstate compact is the product of all the party states. In contrast, several state courts have used an interpretation of an interstate compact to inform the interpretation of similar intrastate legislation, but at least one court has rejected doing so. Using an interstate compact to interpret an intrastate statute does not raise the same concern because a state may readily decide for itself that its own intrastate legislation may have the same meaning as its multistate obligation under a compact.
F. Withdrawal from and Termination of Interstate Compacts
In 2021, the U.S. Supreme Court denied certiorari and brought to a close a case initiated in 2018, Waterfront Commission of New York Harbor v. Murphy. The Waterfront Commission case involved a claim that the New Jersey Governor could not initiate withdrawal from the Waterfront 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. This bill directed the New Jersey Governor to give notice to New York of New Jersey’s withdrawal and would dissolve the Waterfront Commission and transfer the commission’s assets to the New Jersey State Police.
In 2018, the U.S. District Court for the District of New Jersey granted a preliminary injunction prohibiting the Governor of New Jersey from giving notice to New York. That decision was the first in which a compact agency successfully enjoined one of its creator states from unilaterally withdrawing from or terminating a compact. The district court concluded that the Waterfront Commission was likely to succeed on the merits of showing that the Waterfront Compact preempts New Jersey’s law. The court observed that the Waterfront Compact does not explicitly address how a state may withdraw from or end the compact and that the court could not rewrite the compact to allow New Jersey to do so through unilateral legislation. The court also observed that the Waterfront Compact has a “concurred-in” provision and that allowing one state to unilaterally dictate the manner and terms of the commission’s dissolution and distribution of assets was inconsistent with the compact’s requirement that any change to the compact must occur through concurring legislation.
In 2019, the district court granted summary judgment in favor of the Waterfront Commission and made its preliminary injunction permanent. In 2020, the New Jersey Governor and New Jersey Legislature appealed the decision to the Third Circuit, which dismissed the case, concluding that the State of New Jersey, not the Governor, was the true party in interest, that the state enjoyed Eleventh Amendment immunity, and that the Ex parte Young doctrine did not apply.
The Waterfront Commission filed a petition for certiorari in the U.S. Supreme Court, giving three reasons for granting the petition. First, the Third Circuit’s decision did not properly apply the Court’s decisions applying Ex parte Young. Second, the Third Circuit’s decision created a split in the circuits because “the Eighth and Tenth Circuits have held that a suit seeking injunctive relief against state officials to prevent their noncompliance with a congressionally approved interstate compact to which the State is a party does not run afoul of the Eleventh Amendment.” Third, the question presented is important because “[u]nder the court of appeals’ reasoning, state officials could act in blatant violation of an interstate compact, and the federal courts would be powerless to compel those state officials to comply with federal law.” The Court requested briefing from the U.S. Solicitor General, which filed a brief advising that while there did appear to be split in the circuits, the case did not require the Court’s intervention because New York could seek to enforce the compact through suit against New Jersey in the Court’s original jurisdiction. The Court quickly denied certiorari following receipt of the Solicitor General’s brief. On December 27, 2021, New Jersey filed its notice to New York to withdraw from the compact, which would become effective ninety days later. In early 2022, New York and New Jersey traded sharply barbed letters, and New York filed suit against New Jersey in the U.S. Supreme Court in the Court’s original jurisdiction. The 2022 edition of this article will cover these and other more recent developments in this saga, which, so far, has given us few answers on the application of compact law principles to ensure a state’s continued participation in a compact or how a state may properly withdraw from a compact.
II. Administrative Developments
With over 250 interstate compacts, it is difficult to capture the range of administrative activities by compact agencies and others 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. Despite workplace closures, massive organizational changes, and unprecedented disruptions caused by the ongoing coronavirus pandemic, interstate entities continue to celebrate milestones and adopt new procedures; however, there are fewer traditional administrative developments this year, so this section also highlights noteworthy milestones of several compact agencies.
Creating, joining, and, maintaining a compact and a compact agency are not easy tasks. Compacts are complex, and their relationship with states provides evidence of this. Compact agencies are independent of the states that created them, yet dependent on those states for membership, funding, appointments, and adjunct authority. Due to their complicated relationships, states periodically terminate compacts or allow compacts to fail. In 2021, the Psychology Interjurisdictional Compact Commission sought to alleviate one of the challenges in the membership of its compact—consistency among the party states. The commission amended its rules of procedure to require the commission to review a state’s enactment for consistency with the model legislation and to grant the authority to determine that a state is ineligible for membership. Immediately after amending its rule, the commission voted on five states’ enactments. Alabama’s and Minnesota’s enactments of the Psychology Interjurisdictional Compact (PSYPACT) are discussed below. Providing a vote to grant membership is found in a few compacts, but the PSYPACT Commission may be the first compact agency to do so by administrative rule.
The Great Lakes-St. Lawrence River Basin Water Resources Council enacted new alternative dispute resolution (ADR), nonbinding arbitration, and enforcement rules in 2021. The rules specify that a party state may initiate ADR to resolve a dispute with another party state. The party whose actions are in dispute must withhold action and participate in ADR, and any party may identify a non-party entity to participate. This ADR process is not for disputes with the compact council. Arbitration is generally governed by the International Center for Dispute Resolution of the American Arbitration Association in accordance with its International Arbitration Rules. The enforcement rules specify the process that the compact council or a party must follow to compel compliance with the compact. A complaining party must give notice to the other party and seek agreement on the nature and timing of an enforcement action. Similarly, the compact council must open a fact-finding and information sharing process before initiating an enforcement action against a party state and may only initiate an action by a majority vote of the parties. This “no surprises” approach to enforcement may reduce the controversy, length, and expense of an enforcement action that may otherwise cause discord in the implementation of a compact or cause a state to withdraw from the compact.
Many compact agencies are also addressing climate change. For example, in 2021, two compact agencies went above and beyond addressing the growing threats of climate change to our physical planet by enacting environmental justice directives and resolutions to improve services to communities disproportionally impacted by climate change. Both agencies have set examples for other compacts and commissions by adapting innovative programs and procedures toward environmental justice.
The Chesapeake Executive Council signed Directive No. 21-1, the Collective Action for Climate Change, committing the Chesapeake Bay Program to address climate inequity and prioritize diversity, equity, inclusion, and justice in all of its programming. The Chesapeake Executive Council is responsible for guiding the policy agenda, setting conservation, and implementing restoration goals for the regional watershed partnership, the Bay Program. This directive commits the Bay Program to use its world-class scientific modeling, monitoring, and planning capabilities to prioritize communities most vulnerable to the ever-increasing risks of our changing climate. For example, the directive addresses the need for the Bay Program to ensure that its programs “equitably address the impacts of climate change on vulnerable populations, including indigenous people, historically underrepresented communities, those of lower economic status and people of color, considering existing social, economic and health disparities.” While the Chesapeake Executive Council acknowledges that each partner has created its own policies and programs toward climate adaption and resilience, in creating Directive No. 21-1, the council recognizes that to adequately address the magnitude of the threats of climate change, especially toward vulnerable communities, the Bay Program must build on existing efforts as a united partnership.
The Susquehanna River Basin Commission adopted an environmental justice resolution that outlines procedures to address environmental justice, focusing on diversity and inclusion in public and internal operations. The resolution provides directions for staff on evaluating the commission’s regulations, policies, and program activities to enhance tactics for improving service to disadvantaged communities. The resolution also put the Executive Director of the Susquehanna River Basin Commission in charge of reviewing all existing policies and procedures in every program to identify opportunities to create, enhance, and improve its commitment to inclusion, diversity, and environmental justice. Further, under the resolution, the commission will work to make public meetings more accessible to the general public. Any meeting conducted by the commission under the compact, including hearings and enforcement actions, will be held in evening times to increase accessibility. If public hearings include a remote or virtual component, the commission also will provide accessibility through telephone connection so that a computer is not required for participation.
And, finally, we note that several compact agencies celebrated significant anniversary milestones. In 1921, The Port Authority of New York and New Jersey (the Port Authority) became the nation’s first public authority created by an interstate compact. Thus, in 2021, it celebrated its centennial, the first interstate compact agency to do so. The Port Authority provides for the efficient administration of the New York harbor, divided geographically between the two states. Over the past 100 years, the Port Authority has been building and operating the urban infrastructure that millions of people rely on each day and that the world recognizes as “New York City.” From the John F. Kennedy Airport, LaGuardia Airport, and Newark International Airport to the World Trade Center, and many iconic bridges, the world-class infrastructure built by the Port Authority drives the region’s economic growth and vitality.
The Port Authority has held multiple activities and events to commemorate its successes over the past 100 years. For example, to honor the Port Authority on 100 years of service to New York and New Jersey, a dedication ceremony took place at the World Trade Center campus. During the ceremony, the agency filled a time capsule with various items from the Port Authority’s storied history, including steel from the Twin Towers, suspension cables from the George Washington Bridge, historic transit tokens, commemorative coins and pins, E-ZPass tags, a Port Authority branded facemask to commemorate the COVID-19 pandemic, and more. The time capsule has been placed at the World Trade Center site in lower Manhattan and will remain sealed for the next 100 years.
The Delaware River Basin Commission (DRBC) celebrated sixty years of managing, protecting, and improving the Delaware River Basin’s water resources. The DRBC was created on November 2, 1961, when President John F. Kennedy hosted the four Basin State governors and others in the White House to sign the Delaware River Basin Compact. The compact between Delaware, New Jersey, Pennsylvania, and New York granted broad basin management authorities to the DRBC, including establishing water quality standards and regulating discharges. As a result of the compact, the DRBC has provided water security for over thirteen million people in four states.
The Susquehanna River Basin Commission (SRBC) celebrated its fiftieth anniversary and the midpoint of its 100-year compact that began in 1971. The compact was signed by President Richard Nixon on Christmas Eve of 1970, with an effective date of thirty days later. The SRBC is a partnership between Pennsylvania, New York, Maryland, and the federal government to manage water-based resources cooperatively. The Susquehanna River flows 444 miles from its headwaters at Otsego Lake in Cooperstown, New York, to Havre de Grace, Maryland, where the river meets the Chesapeake Bay. Additionally in 2021 the SRBC published its new comprehensive plan, which articulates the commission’s vision, goals, and objectives for the basin over the next two decades.
In 2021, the Cumbres & Toltec Scenic Railroad celebrated a delayed fiftieth anniversary of its co-ownership by Colorado and New Mexico. The railroad is managed by the bistate Cumbres & Toltec Scenic Railroad Commission and traverses sixty-four miles between Chama, New Mexico, and Antonito, Colorado. It crosses the Colorado and New Mexico border eleven times as it chugs its way up and over the 10,015-foot high Cumbres Pass. In honor of the railroad’s fiftieth anniversary, the Cumbres & Toltec Scenic Railroad hosted the “19th Century Victorian Iron Horse Roundup.” The milestone anniversary event included four 1880s locomotives under steam simultaneously. During the week-long celebration, the collection of historic steam locomotives from Colorado and Nevada steamed sixty-four miles over the Rocky Mountains, pulling trains of landmark passenger and freight cars.
The Interstate Insurance Product Regulation Commission (the Insurance Compact) celebrated the fifteenth anniversary of its inaugural meeting. At its first meeting, the Insurance Compact consisted of twenty-seven state members. Today, the Insurance Compact has evolved to encompass forty-six states among its membership, constituting seventy-five percent of the filing volume nationwide. Elizabeth Kelleher Dwyer, the Chair of the Insurance Compact and the Rhode Island Superintendent stated, “In these 15 years, the [Insurance] Compact has had a transformative effect in our state-based regulatory processes promoting meaningful uniformity, transparency and efficiency for the Compacting states, regulated entities and the consumers we collectively serve.” In 2020, the Insurance Compact implemented a Strategic Plan for 2020–2023. In 2021, the Insurance Compact continued to roll out its Strategic Plan by focusing on fulfilling a strategic plan action item to create an annual identification and prioritization process for uniform standards development. In its national state-regulated insurance marketplace, the Insurance Compact serves the need for uniformity, speed-to-market, and regulatory compliance. In creating an annual identification and prioritization process for uniform standards development, the Insurance Compact continues to modernize insurance regulation by allowing insurers to market insurance products quickly.
III. Legislative Developments
A. Federal Legislation
The focus on infrastructure in Congress in 2021 resulted in a new grant program for interstate rail compacts. The Infrastructure Investment and Jobs Act (IIJA) provides significant funding in passenger rail, perhaps “the largest Federal investment in passenger rail since the creation of Amtrak: $66 billion including $24 billion as federal-state partnerships, $12 billion for intercity rail service, and additional funding for freight rail.” Four sections of the IIJA specifically stand out for interstate compacts. Section 21106 contains the U.S. Congress’s consent for states to create multistate freight mobility compacts and establishes a grant program for states to do so. Section 21101 requires the U.S. Secretary of Transportation to create a new Multimodal Freight and Infrastructure Policy office at the U.S. Department of Transportation, which must assist states in the establishment of multistate freight mobility compacts. Section 22101 authorizes the Secretary of Transportation to withhold up to $3 million per fiscal year to support states enacting passenger rail compacts pursuant to a 1997 grant of consent for interstate rail compacts. Finally, section 22910 establishes a competitive grant program to provide federal funding for interstate rail compacts.
B. State Legislation
1. New Compacts and Joining Existing Compacts
Maine introduced two bills in 2021 that required the state or its agencies to obtain legislative approval before the state or state agencies could join, adopt, or implement multistate compacts. The first required legislative approval before Maine could participate in compacts, programs, and agreements regarding transportation and climate change. The second was broader in nature, requiring a majority vote of the legislature before Maine could join any multistate compact. These bills were pointless because state legislatures already must enact compacts or authorize state agencies to join compacts, which only happens with a majority vote.
2. New Compact Concepts
State legislatures in 2021 lived up to their reputation as laboratories of innovation with a plethora of bills introducing new interstate compact concepts. One theme in the legislatures was the Solemn Covenant of the States to Award Prizes for Curing Diseases, a compact to give cash prizes for curing diseases. Twelve states introduced bills in 2021 to enact the compact. This follows the fourteen states that introduced bills in 2020 to enact the compact. Ohio enacted the compact in 2019, but no other state has yet joined. The compact would become binding if two states join, and, if six states join, the “Solemn Covenant of States Commission” would be created. This commission would choose ten diseases based on criteria provided in the legislation, including the severity and public health expenses caused by the disease, and award prizes to any group that finds a cure. The prize would be equal to the “most recent estimated total five-year savings in public health expenses” caused by the disease. According to the sponsor of the Ohio bill, a cure for Alzheimer’s would net a prize between $12 billion and $25 billion, with a compact of ten average-sized states. In return for the prize, the prize winner would transfer the patent and other intellectual property to the commission, which would make the cure “widely available . . . including by arranging or contracting for the manufacturing, production, or provision” of the new drug or cure.
Another theme was a compact to limit incentives for corporations to locate or relocate to a specific state. Thirteen states introduced bills in 2021 to enact such a compact. This follows the fifteen states that introduced legislation in 2020 to enact such a compact. There are at least three different compact models. Eight states introduced one compact text, entitled “Agreement to Phase out Corporate Giveaways” (“Corporate Welfare” in Hawaii’s bill). Three states introduced another compact text, entitled “Company-Specific Subsidy Interstate Compact.” Two states introduced another compact text, entitled “Agreement [or Compact] for Best Practices in Economic Development.” One state introduced yet another compact text, entitled “Interstate Compact for Mutually Beneficial Economic Development.” The titles of the bills are not significant, but the substance of the agreement must be substantively similar, which they are not. None of the bills passed.
A third theme was rail compacts. States introduced several bills to develop new rail compacts or join existing rail compacts. Utah introduced, but did not enact, a concurrent resolution encouraging the development of a Multi-State Passenger Rail Commission. The resolution would have requested that Utah’s delegation to the U.S. Congress, the Utah League of Cities and Towns, the Utah Association of Counties, the Utah Department of Transportation, and the Utah Governor’s Office of Economic Development all support the new commission, as well as the overall expansion of Utah’s rail infrastructure. To illustrate the benefits of railway investment and expanded rail infrastructure, the resolution highlighted the Southern Rail Commission as a model for interstate cooperation. Utah is not the only state referencing and modeling a potential commission after the Southern Rail Commission. A Greater Northwest Rail Working Group has organized to “return intercity passenger rail service to the Greater Northwest,” citing many other regions already coordinating on intercity passenger rail. In 2015 the Southern Rail Commission, the Federal Railroad Administration, and Amtrak began work on returning service to the Gulf Coast, which was disrupted by Hurricane Katrina in 2005 and never resumed. Their successful commission has provided a model for other commissions across the country that are trying to restore passenger rail services.
Iowa and Nebraska introduced but did not enact bills to join the Midwest Interstate Passenger Rail Compact. The compact was formed in 2000 to promote, coordinate, and support regional improvements to Midwest passenger rail services and currently has nine members. Four more states are currently eligible to join: Iowa, Nebraska, South Dakota, and Ohio.
Louisiana enacted a resolution in 2021, urging and requesting the state’s Department of Transportation and Development to study and work with Interstate 20 Amtrak partners to bring passenger rail service connecting Texas and Mississippi through North Louisiana. The resolution lays out which long-distance Amtrak trains currently serve Louisiana and how gaps in Amtrak’s services negatively impact commuters and railroad users in Louisiana. The resolution offers solutions to bridge the current gaps. One solution considered within the resolution is participating in the Interstate Rail Compacts Advancement Act as a participating state if the U.S. Congress adopts it.
Massachusetts introduced a bill directing the state Secretary of Transportation to help develop, negotiate, and enter into a compact on behalf of the Commonwealth with the State of Connecticut, or any appropriate agency, to ensure the success of a permanent commuter rail service in Western Massachusetts. The bill specified that the compact should establish a permanent commuter rail service between New Haven and Greenfield, including identifying stops and possible extensions. The bill also set an expectation of transparency for the interstate commission by specifying that “activities conducted by any interstate commissions created are the formation of public policies and therefore are public business.”
Other state bills proposed several compact concepts in addition to curing diseases, prohibiting corporate incentives, and promoting rail. Florida introduced legislation to waive out-of-state tuition fees for any student who has a grandparent living in Florida. The bill passed out of the Senate Education Committee after undergoing changes that would have created a “Grandchild Out-of-State Fees Waiver Compact.” A substitute bill, however, enacted the fee waiver without the new compact terms.
South Dakota and Montana lawmakers tried to form an Interstate Cooperative Meatpacking Compact to streamline livestock commerce. Montana enacted the compact. South Dakota did not. South Dakota Speaker of the House Spencer Gosch stated that “[o]ver the past year, agriculture leaders in Midwest states have been discussing opportunities to remove barriers for producers and meat processors while opening up new markets for their products.” Currently, state-regulated meat processors, typically small and located in rural areas, are only allowed to sell their products within state lines. The Interstate Cooperative Meatpacking Compact may provide a solution that could remove barriers to commerce between the two states by allowing state-inspected meats to be shipped across state lines to other compacting states. Groups opposing the bill, like the South Dakota Cattlemen’s Association, believe that the bill would have created more problems than it would have solved. The Executive Director of South Dakota Cattlemen’s Association, Jodie Anderson, explained that the organization supports interstate shipment of state-inspected meat but was worried that the bill would put them out of compliance with the Federal Meat Inspection Act.
Massachusetts introduced legislation to further regulate illegal trafficking and gun violence among youth. The bill proposed amendments to Massachusetts law regarding licenses to carry firearms and tasked the state Secretary of Public Safety and Security with studying the feasibility of an interstate compact to encourage the adoption of uniform procedures to combat illegal gun trafficking between states.
Finally, legislators filed bills to create compacts on politically charged subjects. Such bills are more akin to political statements that aim to control federal policy than serious attempts to develop interstate compacts. In 2021, Texas introduced a bill relating to an interstate compact on border security and immigration enforcement. The bill would have allowed the Governor to coordinate and develop an interstate compact for joint action on border security among participating states to enforce existing federal laws on border security more effectively. The bill failed. This is not the first time Texas State Representatives tried to create a border security compact.
The Compact for a Balanced Budget is another politically charged proposed “compact,” in which the member states would agree to seek a Balanced Budget Amendment to the United States Constitution and form a compact commission to coordinate the states and to enforce the amendment. In 2021, Arizona introduced legislation to repeal its prior enactment of the act but did not repeal it, Alaska and North Carolina introduced legislation to enact the act but did not enact it, and Mississippi and North Dakota amended and reenacted their prior enactments.
3. State Legislation Affecting Existing Compacts
Nevada enacted a bill that authorizes the State Forester Firewarden to enter into a cooperative agreement with federal, state, and local agencies to create a fire board of directors and a Wildland Fire Protection Program. The purpose of the fire board of directors is to ensure that agencies in Nevada work collectively to develop policies, plans, and communication regarding wildfire-related issues. Further, the act permits the State Forester Firewarden to enter into cooperative agreements with any fire protection district or board of county commissioners to participate in the Wildland Fire Protection Program. Nevada is not currently a member of any of the eight forest fire compacts, so this act may be the first step for Nevada to join a forest fire compact.
Maine enacted a bill expanding the applicability of the interstate aid provisions in the Northeastern Interstate Forest Fire Protection Compact (Northeastern Compact) to allow aid to or from any state that belongs to a regional forest fire protection compact if that state’s legislature agrees to the mutual aid provisions of the Northeastern Compact. This new law allows Maine to exchange forest fire protection and control resources with up to forty-three other states instead of only Northeastern Compact member states. Connecticut introduced a substantially similar bill but did not enact it. The purpose of the Northeastern Compact is to promote the effective prevention and control of forest fires in the northeastern region of the United States and adjacent areas in Canada. To achieve this purpose, compacting states agree to develop integrated forest fire plans collaboratively, maintain forest fire fighting services, provide mutual aid, and establish a central agency to coordinate the services of member states. Currently, the members of the Northeastern Compact include the New England states, New York, and a few provinces in Canada.
In addition to being members of the Northeastern Compact, Maine and Connecticut are also members of another regional mutual aid compact, the International Emergency Management Assistance Compact, which includes mostly the same U.S. states and Canadian provinces as the Northeastern Compact. Curiously, neither state’s bill proposed expanding the applicability of the interstate aid provisions in the International Emergency Management Assistance Compact. Maine’s unilateral amendment of the compact may not be effective until the other member states and provinces enact a substantially similar amendment. Nevertheless, the bills may indicate a need for a national forest fire compact or legislation to amend the International Emergency Management Assistance Compact to meet forest fire suppression needs.
4. New Members of Existing Compacts
Many states enacted legislation in 2021 to join interstate compacts. Here, we note the significance of states joining three compacts. The Council of State Governments National Center for Interstate Compacts maintains current information on the ever-growing state membership in occupational licensure compacts, which we do not attempt to repeat here.
In 2021, Hawaii became the forty-ninth state to join the Interstate Wildlife Violator Compact, leaving Massachusetts as the only remaining non-member state. Massachusetts introduced a bill to join the compact but did not enact it. The compact was created to promote compliance with wildlife management laws, regulations, ordinances, resolutions, and administrative rules in the respective member states. The compact institutes a process whereby non-residents who violate wildlife law in a compact-member state are subject to penalties as if the violator was a resident of the state where the violation took place, as well as reciprocal penalties in their home state.
In 2021 Delaware became the forty-fifth state to join the Interstate Insurance Product Regulation Compact (the Insurance Compact). New York introduced a bill to join the Insurance Compact but did not enact it. Created by the National Association of Insurance Commissioners in 2002, the Insurance Compact’s commission reviews and approves individual and group annuity, life insurance, disability income, and long-term care insurance products, which may then be offered by all members states. This centralized review process is in lieu of insurance companies seeking approval from each state individually. Only California, North Dakota, South Dakota, Florida, and New York now remain outside the Insurance Compact.
In 2021, ten states introduced bills to enact the National Popular Vote Interstate Compact, and one state, Connecticut, introduced but did not enact a bill to withdraw from the compact. The National Popular Vote Interstate Compact member states agree to award their presidential electoral votes to the winner of the national popular vote. The compact becomes effective after enough states, representing a majority in the Electoral College, have enacted it. Therefore, the compact effectively creates a popular vote election for the U.S. President. Fifteen states and the District of Columbia have enacted the compact, representing 195 electoral votes out of the 270 needed to reach a majority in the electoral college. For more information about this compact, the National Popular Vote Compact website has a book for download.
5. Update on Occupational Licensing Compacts
For the past several years, many professions have sought to create interstate compacts that allow licensed professionals to move from state to state more easily by reducing the burden of relicensing. In 2021, the Audiology and Speech Language Pathology Interstate Compact became the sixth recently effective occupational licensing compact after Nebraska became the tenth state to enact it. There are three other compact texts that states have started to enact, but, as of the end of 2021, not enough states had enacted them for the compacts to become effective.
States are developing several more occupational licensing compacts with federal grants. The U.S. Department of Health and Human Services provided a grant to the Federation of State Medical Board to create a physicians assistants compact. The National Defense Authorization Act for the 2020 fiscal year authorized the U.S. Secretary of Defense to enter into a five-year agreement with the Council of State Governments to aid in the funding of several occupational licensure compacts to alleviate the burden on military spouses when they relocate and relicense in another state. Many military spouses are in a licensed profession, and military families frequently relocate across state lines. Military spouses thus face the burden of meeting each new state’s licensing requirements and fees. The Department of Defense intends its funding to help increase enlistment and retention of servicemembers. The U.S. Department of Defense (DOD) has been involved in interstate compacts for several years, recognizing that the states’ cooperation benefits the military, as well as the general population. Previously, the DOD was a lead convener and funder of the Interstate Compact on Educational Opportunities for Military Children. In 2021, the DOD approved grants to begin drafting occupational licensing compacts for the teaching, social work, cosmetology, massage therapy, and dentistry/dental hygiene professions, and the Council of State Governments National Center for Interstate Compacts began work on each. With teams of experts at work drafting compacts for those professions, the National Center for Interstate Compacts announced a second round of applications to develop licensing compacts for other professions. Another federal bill introduced in 2021, but not enacted, would have established a grant program for states to implement interstate compacts for mental health professionals that would allow these professionals to practice in states that have entered into mental health licensing compacts. The federal government’s funding of compacts fulfills two executive orders to work with states to reduce the burden of professional licensing.
As of the end of 2021, six states have not enacted any occupational licensing compacts. Massachusetts is one such state, perhaps taking a wait-and-see approach to observe how the compacts work in other states. In 2020, the Massachusetts Legislature enacted a bill requiring the Massachusetts Health Policy Commission to issue a report about the Nurse Licensure Compact, and, in 2021, the commission issued its report. The report notes that enacting the compact would facilitate emergency preparedness; that states have generally reported benefits of compact membership to state boards of nursing, employers, and nurses; and that nurses report benefits of the compact, among other findings. Connecticut is another state that has not yet enacted any occupational licensing compacts. Like Massachusetts, the Connecticut General Assembly enacted a bill requiring the Commissioner of Public Health to convene a working group to determine whether Connecticut should join any interstate licensure compacts and submit a report in January 2022. Some legislators oppose occupational licensing compacts. In 2021, New Mexico Senator Daniel Ivey-Soto took the unusual step of appearing at a Washington State Senate hearing to testify against Washington enacting the Nurse Licensure Compact.
As discussed previously, states must enact substantively the same legislation to create a compact. In practice, that concept is complex because the states’ constitutions differ in their grants of rights and authorities. Alabama’s enactment of the Psychology Interjurisdictional Compact (PSYPACT) in 2021 illustrates this complexity. Alabama’s enactment of PSYPACT included a provision authorizing a private right of action in accord with its state constitution. Yet the model legislation does not contain any similar provision creating private rights of action. Despite this difference, the PSYPACT Commission voted to grant membership to Alabama. This vote recognizes that some states’ constitutions would prohibit joining the compact if those states must strictly adhere to the terms of the model legislation.
Minnesota’s enactment of PSYPACT also differed from the model language by including a new Article XV that is not found in the model compact legislation. The new Article XV expanded liability for the PSYPACT Commission and its members, officers, employees, and representatives, but Minnesota’s enactment of PSYPACT also included a provision that made Article XV void and unenforceable if the PSYPACT Commission concluded that Article XV would disqualify Minnesota from membership. The PSYPACT Commission voted to find that Article XV would disqualify Minnesota from membership, thus voiding it. The PSYPACT Commission then voted to grant membership to Minnesota.
In 2021, Arizona and Kentucky enacted legislation authorizing professionals from other states to provide telehealth care after registering with Arizona’s and Kentucky’s health care provider regulatory boards. For professions that already have a licensure compact, these telehealth laws provide another avenue for health care professionals to seek authorization to provide care outside their home states. Arizona’s telehealth legislation is silent about compacts. In contrast, Kentucky’s legislation prohibits Kentucky state agencies from enacting regulations relating to telehealth that would prohibit a professional licensed under a compact from providing services under the standards and provisions of that compact. In 2021, the Uniform Law Commission also began working on a model or uniform telehealth law. A November 2021 discussion draft specified that an out-of-state practitioner would be allowed to provide telehealth in a state where they hold an appropriate license or certification, “including through a multistate compact of which this state is a member.”
In 2021, states also considered universal licensure recognition laws that allow state licensing boards to recognize or issue licenses to professionals who are similarly licensed in another state, typically with fewer requirements than are necessary for a first-time licensee. At least twenty states have universal licensure recognition laws. Those laws generally specify different qualifications for licensing, such as the scope or length of practice, whether a licensee has received disciplinary actions, education, paying fees, or taking exams. Some laws are specific to military personnel and spouses. Universal licensure recognition laws are not equivalent to occupational licensure compacts. For example, compacts provide a mechanism for one state to report a disciplinary action taken against a licensee to an interstate commission and the other states where the licensee holds a licensee or privilege to take reciprocal action. Interstate compacts and universal licensure recognition laws can coexist without conflict where the universal licensure recognition laws provide an exemption for licensees who are licensed through an interstate compact. One federal bill, introduced in 2021 but not enacted, would have required universal licensure recognition for military spouses but also provided an exemption for interstate compacts.
IV. Bridge for Sale!
And finally, we regret to inform you that if all this compact law seems a bit far-fetched, you just missed your once-in-a-lifetime opportunity to buy an international bridge. In 2021, the U.S. side of the International Falls-Fort Francis International Bridge acquired a new owner, and that new owner, in partnership with another corporation, is petitioning authorities in Canada to purchase the Canadian side of the bridge. The complexities of owning and managing an international bridge are enjoyed by many binational entities that received the consent of the U.S. Congress and for which courts routinely apply interstate compact law principles.
