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. 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. 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 . . . .” 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. 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, 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,” citing the 1999 Red River Boundary Compact. The defendant argued that the compact did not apply because the compact does not affect private property rights or title to property. 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.
In a long-running dispute over the Delaware River Basin Commission (DRBC) ban on fracking, the Third Circuit in Yaw v. Delaware River Basin Commission 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.” 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.
In Garmong v. Tahoe Regional Planning Agency, 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.
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, the court concluded that Keystone Outdoor Advertising Company did not have standing to bring a claim under the Delaware River Port Authority (DRPA) compact. 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. The merits of this legal question are discussed below.
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, in which the Third Circuit concluded that a parolee who applied to use the Interstate Compact Concerning Parole and Probation did not have rights under the compact as a third-party beneficiary considering the intent of the compact. 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.
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. 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.
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. 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. Less commonly, courts rely on principles of interstate compact law to describe other governmental entities. Coughlin v. Lac du Flambeau Band 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.” Section 101(27) of the Bankruptcy Code defines a governmental unit as “or other foreign or domestic government.” 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.
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:
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?
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,” which the Ninth Circuit once adopted.
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. And, in 2019, Justice Thomas applied interstate compact law in Franchise Tax Board v. Hyatt, 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, 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, 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 Fitchik 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. 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. Since then, courts have applied the principle with few deviations but with many variations on how they explain the principle.
As summarized above, in Keystone Outdoor Advertising Co. v. Secretary of the Pennsylvania Department of Transportation, Keystone owned billboards that were located on Delaware River Port Authority (DRPA) property. 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.” 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.
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.’” 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.”
In McKenzie v. Port Authority of New York & New Jersey, 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.” 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.”
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. Generally, New York state courts apply an express intent standard to determine whether a particular state law applies to a compact. 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 also 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.
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, 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.
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. New Jersey courts similarly rejected the Port Authority’s arguments and continued to apply its complementary and parallel standard.
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, 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.
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; 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, 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.
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. 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, 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.”
Another interpretive practice is that courts consider prior interpretations of similar compacts. This is illustrated in Burke v. Lamont, 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.
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. These regional compacts operate alongside a national-in-scope ICC. The regional compacts predated the ICC, which was modeled on the Western ICC. 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.
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). 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.” 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, 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).”
As noted above, applying precedent from other courts is one way that courts create a uniform interpretation of a compact. There are many others. 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., 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.” 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., 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.
In 2022, in In re D.L. v. S.B., 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.
The Utah Supreme Court also acknowledged a state split in the application of the ICPC in In re K.S. & C.S., 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.
Harrosh v. Tahoe Regional Planning Agency 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. 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.” 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. 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.
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. 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. These cases are consistent with several other decisions concluding the same in 2020 and 2021.
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, 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. 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. 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) 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). ARC is a regional collaboration between the federal government and thirteen states within the Appalachian region. The collaboration leverages interstate and federal cooperation to address region-specific economic and social harms. ARC began spending its first $200 million annual allocation by creating the Appalachian Regional Initiative for Stronger Economies (ARISE). ARISE leverages infrastructure money to increase regional cooperation and progress towards the ARC’s strategic investment priorities. To be eligible for ARISE grants, applicants must collaborate with at least one other state on an initiative that creates multistate impacts.
The Delaware Valley Regional Planning Commission (DVRPC) began to provide IIJA funding procurement resources to its constituent municipalities. The DVRPC is a regional planning commission created by Pennsylvania and New Jersey. The commission serves as an advisory agency and consists of representatives from the nine counties that make up the greater Philadelphia urban area. 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.
The IIJA established a $4.7 billion effort to identify, characterize, and plug undocumented orphan oil wells across the country 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. 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.”
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. 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. 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. 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.
The IOGCC also began to advise the Secretary of Energy in evaluating grant applications submitted by states for federal funding. A state must be a member of the IOGCC to qualify for the first round of well-plugging grants—nearly $775 million.
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. 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. 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. MWAA operates independently of the four appointing authorities and will continue to be eligible to apply for more infrastructure grants managed by the FAA.
The IIJA also specified safety and accountability investments for the Washington Metropolitan Area Transit Authority (WMATA). 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. For years, WMATA has struggled with inefficiency, safety concerns, and corruption—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. WMATA members also must match these funds to initiate their disbursement. In addition to the conditional Inspector General funds, the IIJA allocates $150 million annually to WMATA between 2022 and 2030.
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. WMATA’s acting Inspector General submitted a report to the House Committee on Oversight and Reform in October 2022. 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. The Washington Metrorail Safety Commission is a new interstate compact agency created in 2017 specifically to oversee the WMATA. The acting Inspector General was recently appointed to the permanent position and will serve for a three-year term.
The IIJA also allocated $2.2 billion to the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) program. 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. Entities that receive grants are involved in road, rail, transit, and port projects that help accomplish national infrastructure goals. Michigan and Illinois, two member states of the Midwest Interstate Passenger Rail Commission (MIPRC), obtained grants from the RAISE program. 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. The grants will fund improvements to existing passenger rail infrastructure, as well as research into the feasibility of new routes in Michigan and Illinois.
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. MIPRC contributed comments developed in coordination with each member state’s department of transportation. One of MIPRC’s comments to the FRA recommends that the new program prioritize capital projects guided by regional compacts.
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. The SRC is an interstate rail compact between Louisiana, Mississippi, and Alabama. 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. The new program will help fund the creation of new rail compacts, activities of existing compacts, and substantive rail services provided by compacts. The SRC, MIPRC and the National Center for Interstate Compacts at the Council of State Governments have provided comment to the FRA.
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. 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. 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.
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. 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.
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. In February 2022, the comment period for this rule concluded with 2451 written and oral comments. This rulemaking should come as no surprise. The DRBC has never permitted fracking within the basin. It is currently involved in protracted litigation over its authority to prohibit fracking. 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. 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.” 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.
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.
D. A New Compact Board
Although not an interstate compact, a new water rights compact between Montana and the Confederated Salish and Kootenai Tribes had a busy first year. The state and tribes signed the compact in December 2020, and Secretary of the Interior Deb Haaland signed the compact in September 2021. 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. 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.
Courts sometimes cite interstate compact law when resolving cases involving state-tribal compacts, which illustrates shared legal principles. Indeed, many of the administrative and legal matters that the Flathead Management Reservation Board are working through, such as searching for office space, evaluating the Board’s legal status for tax purposes, and designing a logo, 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. 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.
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. The Department of Defense helped create the compact and still contributes funding to the MIC3, which administers the compact. The compact streamlines interstate educational transfers of military-family students due to frequent relocation of service members.
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. The bill also identified other considerations but curiously not the scrivener’s error discussed above.
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.
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. 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.
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. 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. 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. This is the second bill, in as many years, to introduce the same universal licensure recognition for servicemembers and their spouses. Last year’s developments article discussed some differences between universal licensure and licensure through interstate compacts.
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. Both states had long-standing existing law generally authorizing interstate interlocal cooperation. 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. 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. 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.
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 states has met for several years to develop design alternatives, begin obtaining entitlements and permits, and create a governance structure. 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. This process includes making pivotal decisions about the new entity, such as choosing the commission’s principal place of business.
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. 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, 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.
Virginia enacted legislation adding the Arland D. Williams, Jr. Memorial Bridge (formerly the 14th Street Bridge) to the Potomac River Bridge Towing Compact. Washington, D.C. and Maryland are the other members of that compact. 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. 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. The Potomac River Compact establishes the Potomac River Fisheries Commission, which manages and conserves fisheries on the Potomac River. 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. The discrepancies between the amendments were significant enough that each state has since treated the compact differently. 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). This compact originally created the SRC to study the feasibility of rapid rail transit service between the member states. The SRC was mentioned above in relation to the IIJA. The compact amendments alter the SRC’s duties, purpose, and powers. 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].” 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. None of the other SRC members passed substantially similar legislation, so the amendments may not yet be effective.
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. The findings in the legislation for intrastate rail service specifically mentions the IIJA funds, but the direction to the Department of Transportation only states that the Department may apply for funds generally, with no mention of the IIJA.
New Hampshire enacted the new Interstate Compact for the Placement of Children (ICPC), which becomes effective when thirty-five states have adopted the new ICPC, in accordance with the threshold requirement in the new ICPC. 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. 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. New Hampshire’s enactment of the new ICPC was a response to a particular missing child case, not the Conference of Chief Justices recommendation.
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. 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. 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. 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. This delay in the effective date is not in the new ICPC model legislation. 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.
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).The 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. The South Carolina Department of Insurance issued Bulletin 2022-03, 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. 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. Under the new law, the state’s Interim Study Committee on Government will review compacts on a biennial basis. 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. Concurrently, Indiana gave itself more homework by joining three compacts in the same year in which this compact oversight law passed.
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. Regarding compacts, state legislatures, not agencies or boards, enact compacts, 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. Indeed, Kentucky enacted the Counseling Compact on the same date as the resolution.
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. 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. The $3 billion extension provides access to the Washington Dulles International Airport and six more stations in Northern Virginia. 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). MWAA managed both phases of construction for the Silver Line—a project that began in 2009 and took significantly more time and money than anticipated. 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.
