The year 2022 was an interesting year for interstate compacts. While there were no blockbuster judicial decisions, one was decided in 2023. New York v. New Jersey, an original jurisdiction case filed at the beginning of 2022, involved a question whether one state may unilaterally withdraw from and terminate a compact absent express authorization to do so in the compact. In early 2023, the Court ruled in New Jersey’s favor. In other cases, the majority and dissent in the First Circuit sparred over how to characterize an interstate compact agency in a non-compact case; courts in New York seem to have opened the door for changing the analytical framework for determining whether state law applies to the Port Authority of New York and New Jersey; and two courts interpreting compacts referred to interpretations of other related compacts, illustrating a premium on uniformity.
Administrative developments included compact agencies taking advantage of federal funding opportunities in the 2021 Infrastructure Investment and Jobs Act. The Act has some preferences for cooperative actions and some references to specific compact agencies. The Military Interstate Children’s Compact Commission has developed a plan for the states to fix a scrivener’s Interstate Compact in Educational Opportunity for Military Children, a heavy lift as all fifty states and the District of Columbia are members.
Legislative developments included several federal bills that would have directed changes to specific interstate compacts or changed how states implement those compacts. None of these bills proceeded to a vote. Notable new state laws provide for a new bridge authority between local governments in Oregon and Washington; Massachusetts becoming the fiftieth state to join the Interstate Wildlife Violator Compact; Virginia and Louisiana enacting amendments to compacts that other members states have not yet enacted; Maryland resolving discrepancies between it and Virginia’s enactment of amendments to the Potomac River Compact; New Hampshire and Vermont enacting the new Interstate Compact for the Placement of Children (ICPC); and South Carolina withdrawing from the Interstate Insurance Product Regulation Compact, the first state to ever withdraw from that compact.
This article discusses a wide range of judicial, administrative, and legislative developments in interstate compact law in 2022. 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.