Interstate Cooperation: Compacts and Administrative Agreements : Compacts and Administrative Agreements 9780313012600, 9780275977566

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INTERSTATE COOPERATION

INTERSTATE COOPERATION Compacts and Administrative Agreements Joseph F. Zimmerman

Library of Congress Cataloging-in-Publication Data Zimmerman, Joseph Francis, 1928– Interstate cooperation : compacts and administrative agreements / Joseph F. Zimmerman. p. cm. Includes bibliographical references and index. ISBN 0–275–97756–0 (alk. paper) 1. Interstate agreements—United States. I. Title. KF4618.Z53 2002 342.73'042—dc21 2002022438 British Library Cataloguing in Publication Data is available. Copyright 䉷 2002 by Joseph F. Zimmerman All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2002022438 ISBN: 0–275–97756–0 First published in 2002 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1

For Deirdre, Dahl, and Kieran

CONTENTS

Preface

ix

Acknowledgments

xi

1.

Interstate Comity

1

2.

The Constitution and Interstate Governance

19

3.

The Compacting Process

39

4.

Compact Commissions

69

5.

Interstate Compacts Sans Commissions

143

6.

Formal and Informal Administrative Agreements

163

7.

Interstate Cooperation: An Assessment

203

Bibliography

221

Index

249

PREFACE

Harmonious interstate relations in general are a central feature of successful federal systems that have constitutions allocating substantial powers to member states. Conflicts, however, arise in these systems and can be resolved by means of interstate cooperation that in the United States may assume the form of interstate compacts and formal interstate administrative agreements. The alternatives in the United States to these methods of conflict resolution are adjudication by the U.S. Supreme Court if one or more states bring an original jurisdiction suit against another state(s), or congressional preemption provided Congress is authorized to employ a delegated power capable of resolving the dispute. It is apparent Congress may not resolve, for example, a boundary dispute, but may grant its consent to an interstate compact establishing the boundary line(s) between two states. Preemption dates to 1790, but had relatively minor effect on the powers of states until a preemption revolution commenced in 1965 with Congress increasingly removing all or certain powers from states, and by extension local governments, in a number of regulatory fields.1 Not surprisingly, the question of whether Congress should employ its preemption powers to solve a nationwide problem is highly political and typically involves important interest groups. Total preemption of state regulatory authority has the advantage of establishing uniform policies throughout the nation, but limits the ability of individual states to innovate new programs to solve problems that may be adopted by sister states. In a number of instances, an interstate compact and/or formal administrative agreement could be employed to achieve the goals of a preemption statute. Political scientists generally have paid relatively little attention to the politics of interstate relations in recent decades although such relations af-

x

PREFACE

fect directly thousands of business firms and millions of citizens. This book attempts to rectify in part the neglect by examining the use of cooperative instruments—compacts and formal and informal administrative agreements—to address interstate problems, construct and operate physical facilities, regulate activities of business firms and individuals, and provide legal rights and services on a multistate basis by means of joint programs and reciprocity. The law of interstate relations is subjected to detailed analysis to promote an understanding of the legal basis for interstate cooperation and challenges to such cooperation. One of the unique features of this volume is the chapter on formal and informal interstate administrative cooperation. The importance of such cooperation cannot be overestimated as the viability of the U.S. federal system is dependent in large measure on harmonious relations between sister states that are the product of the willingness of state officers to act in unison to solve major interstate problems. NOTE 1. Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991).

ACKNOWLEDGMENTS

Collecting information on interstate cooperation was a major task because of the relative lack of published current information. Numerous state and federal government officers, compact administrators, associations of state administrators, and individuals supplied information in response to my requests. In addition, a significant number of state government officers, compact officers, and association officers granted interviews to the author and/ or his research associates, and provided copies of materials that otherwise would have been unobtainable. The cooperation of these officers is reflective of their professionalism and their desires to improve the functioning of the federal system. A special debt of gratitude is owed to colleague Stephen L. Wasby for critical comments on a draft of Chapter 6; research associates Brian R. Haak, Christopher W. LaBarge, Michael A. Landsman, Christopher P. Latimer, and Nicholas J. Parrella; Addie Napolitano for excellence in preparing the manuscript; and Robert Holm for editing the manuscript. Any errors of fact or misinterpretations, of course, are solely my responsibility.

Chapter 1

INTERSTATE COMITY

The term Imperium in Imperio (empire within an empire) is an apt descriptor of a federal system as sovereign political powers are divided between a national government and subnational governments.1 Such a power division automatically produces national-state relations and interstate relations that may be characterized by competition, cooperation, and/or conflict. The focus of this volume is interstate comity in the United States that in origin predates the emergence of the federal system and is traceable to the Declaration of Independence of 1776 that necessitated interstate cooperation, similar to an international alliance, for the successful prosecution of the War of Independence. Abundant literature exists on national-state relations in the United States in contrast to the scarcity of literature on interstate relations. The first comprehensive book on such relations was not published until 1996.2 This fact is surprising since boundary and trade disputes between sister states were major factors contributing to calls for amendment of the Articles of Confederation and Perpetual Union, and ultimately led to the convening of the constitutional convention of 1787 which drafted the U.S. Constitution as a replacement of the Articles. The relative lack of interest by political scientists in interstate relations during the past six decades is difficult to explain when one considers the wide variety of major economic, political, and social matters involved and the importance of diurnal interstate cooperative activities. The declining scholarly attention paid to such relations is apparent upon a perusal of three special issues of The Annals of the Academy of Political and Social Science devoted to federalism and intergovernmental relations.3 The 1940 issue contained six articles on interstate relations. The

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number of such articles declined to two in the 1974 issue, and to none in the 1990 issue. Proponents of a federal system list its advantages as avoidance of overcentralization of political power, national uniformity in policy areas where needed, states controlling their internal affairs and experimenting with new policies that lead to adoption of successful ones by sister states and/or the national legislature, greater opportunities for citizen participation in the policy-making and implementation processes, and ability of states to remedy an internal problem without waiting for the national legislature to develop a solution. Four major disadvantages, however, may be associated with a federal system. First, the exercise of concurrent powers by the national legislature and state legislatures may produce conflicts between the two planes of government and/or uneconomical performance of overlapping functions. Second, disharmonious state policies in numerous important areas—such as banking, criminal justice, highway safety, and taxation—create major problems for business firms and citizens who have to ascertain conflicting provisions in the various laws of the fifty states and be alert to frequent changes in many laws. Third, the refusal of a state government to recognize the public acts, judicial proceedings such as divorce, and records of another state generates significant problems. Fourth, serious transboundary problems (air and water pollution are examples) may remain unabated in the absence of national legislative action or interstate cooperation to solve them. Interstate cooperation, formal and informal, is the keystone holding the U.S federal system together and contributing to its success, yet is a largely unexplored area of the federal system. Cooperation is manifested in many forms. Formal cooperation is reflected in interstate compacts, reciprocity statutes, uniform laws, and written interstate administrative agreements for joint action that may be the product of self-interest of sister states and/or congressional promotion as explained in a subsequent section. Whereas compacts and uniform laws usually are intended to be relatively permanent, administrative agreements between sister states may be ad hoc or permanent and may be verbal or written. Interstate compacts can be located in the consolidated laws of states and, if consent has been granted by Congress, in the United States Statutes at-Large. Unfortunately, there is no central repository in any state holding all written interstate administrative agreements entered into by the state. Although a New York law requires the secretary of state to keep a current compilation of all interstate compacts and administrative agreements entered into by New York and its political subdivisions, only three agreements are in the compilation including one with the Province of Quebec on acid rain.4 A notable feature of the contemporary United States federal system is the exceptionally large number of informal understandings between admin-

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3

istrative officers in various states pertaining to combating organized crime, hot pursuit by police across state boundary lines, mutual assistance in extinguishing forest fires, prevention of environmental pollution, and other matters (see Chapter 6). There has been a sharp increase in the number of these agreements during the past five decades with little attendant public visibility and no formal studies. National and regional associations of state administrative officers are another manifestation of interstate cooperation. Many associations draft model laws and model administrative agreements, and association members promote the models in their home states. Certain national associations of state administrative officers encourage interstate cooperation to solve problems in order to fend off congressional preemption of their regulatory powers.5 For example, the National Association of Insurance Commissioners initiated action to improve state solvency regulation of property-casualty and life insurance companies by establishing an accreditation program for states (see Chapter 6).6 Our emphasis on interstate collaboration should not blind us to interstate conflicts over water allocation and/or pollution, boundary lines, taxation, and other subjects. Furthermore, interstate competition is common as individual states rationally seek to attract major federal government facilities, industrial firms, service industries, tourists, and in some instances gamblers. Tax abatements, grants, and loans are commonly offered as inducements to firms to locate in a particular state. The U.S. Advisory Commission on Intergovernmental Relations in 1991 identified “competition in the areas of education, public welfare, and public works infrastructure . . . and rightto-work laws and laws regulating workers’ compensation insurance.”7 States also compete to obtain certain federal grants-in-aid. Tax exportation is another feature of a federal system with states rich in and exporting natural resources—coal, forest products, natural gas—levying relatively high extractive taxes that are passed on by purchasers in sister states to consumers. The state of New Hampshire is perhaps the outstanding example of another type of exportation of taxes. Its low excise tax on alcoholic beverages and tobacco products and lack of a sales tax act as magnets for shoppers from the other New England states that all levy sales taxes and higher excise taxes. It is apparent that conflicts between states and competition for industry and tax revenue may hinder interstate cooperation. The specific foci of this volume are interstate compacts and interstate administrative agreements that are assessed in terms of their success in Chapter 7. To gain a proper understanding of state interactions, the reader must become acquainted with the origin of the federal system, constitutional distribution of political powers between Congress and the states, congressional promotion of interstate cooperation, and interstate constitutional principles (see Chapter 2).

4

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ORIGIN OF THE FEDERAL SYSTEM The U.S. governmental system has been influenced greatly by English institutions and philosophies of governance. The colonists brought to the new world concepts of popular sovereignty, natural law, natural rights, rule of law, and separation of powers. They, of course, lived under a centralized unitary system with sovereignty residing in the mother country. The revolt against British rule commenced in New Hampshire in 1775, and the Declaration of Independence in 1776 formally instituted the Revolutionary War by the thirteen former colonies against the British Crown. The immediate result of the declaration was the establishment of thirteen independent nations with eleven drafting constitutions and Connecticut and Rhode Island converting their royal charters into constitutions. Although no national constitution or government existed, each state sent delegates to the second Continental Congress which directed the war effort, borrowed funds, raised armies, and entered into treaties with other nations. It was apparent to Congress a national government was needed. A unitary system was not given serious consideration as the colonists had revolted against such an overcentralized system. Two nations—Switzerland and the United Netherlands—operated under a confederate system that appealed to the newly independent states. Articles of Confederation In 1777, the Articles of Confederation and Perpetual Union were drafted by the Continental Congress and submitted for ratification to the states with the proviso they would become effective upon the ratification by all states. The thirteenth state, Maryland, ratified the Articles in 1781. Boundary disputes, attributable to imprecision in royal land grants, were responsible for the ratification delay and were overcome when the Continental Congress proposed in 1780 the disputed lands should be transferred to the proposed national Congress to be “disposed of for the common benefit of the United States and be settled and formed into distinct states which shall become members of this Federal Union.”8 New York, which had few territorial claims, and Virginia with numerous land claims in 1781 ceded their lands to the Congress and their lead was followed by the other states. Provisions The Congress created by the Articles enacted the Northwest Ordinance in 1787 stipulating sections of the Northwest Territory would be admitted as states when the population in each section reached 50,000.9 Article XI of the Articles of Confederation and Perpetual Union provided that “Canada, acceding to this Confederation, and joining in the measures of the

INTERSTATE COMITY

5

United States, shall be admitted into and entitled to all the advantages of this Union, but no other colony shall be admitted into the same unless such admission be agreed to by the nine States.” The Articles stressed the confederation was “perpetual” in nature, but did not employ the word “government.” Article III described the governance system as a “firm league of friendship,” thereby emphasizing the importance of cooperative interstate relations, and declaring its purposes to be common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or by any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

Article II made clear the confederate nature of the new governance system: “Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the united States in Congress assembled.” Note the lower case “u” in “united” denoting the establishment of a league of states by the Articles rather than a national government with powers derived from the people. The Articles created a unicameral Congress with two to seven delegates from each state appointed and recallable by their respective state legislatures for a maximum term of three years in any period of six years. Each state had only one vote in Congress which was authorized to appoint a Committee of the States, composed of one delegate from each state, to meet during congressional recesses and to appoint a president as presiding officer for a term not exceeding one year during a three-year period. The committee was empowered to borrow funds, build a navy, raise an army, coin money, declare war, negotiate treaties, establish a postal system, fix standards of measures and weights, and regulate relations with Indian tribes. In addition, the committee was authorized to exercise additional powers delegated by Congress provided nine states agreed. There were, however, no separate executive branch and no separate judicial branch. Defects Experience quickly revealed the Articles suffered from five defects: 1. The failure to grant Congress the power of taxation made the national body dependent upon individual states sending their contribution quotas of funds, and many failed to send their quotas. Lacking adequate funds, Congress was unable to exercise its delegated powers effectively. 2. The Articles did not authorize Congress to enforce its laws and treaties entered into with foreign nations. Furthermore, states were not under a legal obligation to respect congressional laws and treaties. As a conse-

6

INTERSTATE COOPERATION

quence, Congress was unable to establish uniform laws throughout the states with respect to matters delegated to it. In 1787, James Madison noted states had violated the Peace Treaty of 1783, the treaty with France, and the treaty with Holland, and “as yet foreign powers have not been rigorous in animadverting on us.”10 3. The lack of power to regulate interstate commerce made it impossible for Congress to counteract the mercantilistic practices of states which had erected trade barriers against sister states, thereby bringing interstate commerce to a near standstill. This defect clearly was the most serious one and contributed greatly to the increasing public pressure for the amendment of the Articles of Confederation and Perpetual Union. 4. Congress possessed the authority to raise and support an army and a navy, but lacked the resources to do so during a period when England controlled Canada, Spain was in the southwest, and the French monarchy, which had supported the states during the revolutionary war, was in danger of collapse. Furthermore, Congress was unable to assist states in suppressing domestic disorders such as Shay’s Rebellion in western Massachusetts. 5. Dissolution of the confederacy was a distinct possibility. In 1787, Madison expressed the view “a breach of any of the Articles of Confederation by any of the parties to it absolves the other parties from their respective obligations, and gives them a right if they choose to exert it of dissolving the Union altogether.”11 Constitutional Convention The defects of the Articles became more apparent with the passage of time. Maryland and Virginia recognized fully the importance of cooperative interstate relations and their representatives in 1785 drafted a Potomac River and Chesapeake Bay navigation and trade agreement. The Maryland State Legislature ratified the compact and proposed Delaware and Pennsylvania be included in negotiations of interstate commercial regulations. The Virginia General Assembly also ratified the agreement and invited all thirteen states to attend a convention in Annapolis, Maryland in 1786 to develop a uniform system of commerce and trade. Although commissioners were appointed by nine states to attend the convention, only twelve commissioners from five states participated. The convention approved a resolution requesting Congress to convene a convention in Philadelphia in May 1787 to examine the Articles of Confederation and Perpetual Union and to propose needed amendments. Congress, without enthusiasm, approved on February 21, 1787, a resolution calling a convention, but failed to designate the method of selecting delegates. They were appointed by the state legislature or by the governor under legislative authorization. Only the State of Rhode Island and Providence Plantations failed to send delegates to the convention which met from May 25 to September 17,

INTERSTATE COMITY

7

1787. Rhode Island maintained the Articles could be amended only in conformance with Article XIII requiring the approval of Congress and confirmation “by the legislatures of every state.” Although seventy-four delegates were appointed, nineteen delegates did not accept their appointments or did not attend the convention. Fourteen of the remaining delegates left the convention prior to the completion of the draft constitution. Convention debate was sparked on May 29, 1787, when Governor Edmund Randolph of Virginia introduced fifteen resolutions that could serve as the basis of a national government similar to the British government. Debate centered on the question of whether the Articles should be amended or replaced. By a vote of six to one, delegates decided to replace them and restructure the governance system in general and interstate relations in particular. Compromises—between large and small states, and northern and southern states—were a feature of convention proceedings. The famous Connecticut Compromise provides for a Senate with two members from each state and a House of Representatives based upon population with a stipulation each state is guaranteed a minimum of one representative. Two of the most famous compromises between northern and southern states involved slavery and imposition of import and export duties. The Constitution allowed slaves to be imported for twenty years and authorized Congress to impose a tax not exceeding ten dollars on each slave imported. Southern states opposed both import and export duties. The Constitution authorizes Congress to levy only import duties. The constitutional convention developed a new governance system incorporating elements of a confederate system and a unitary system by dividing powers between a national Congress and states. The proposed constitution also established an executive branch and a judicial branch of government. The convention’s delegates were aware it would be impossible to secure the ratification of the proposed fundamental document by all states. Fearing their work might be frustrated by a small number of states, the delegates incorporated a provision in the Constitution stipulating it would become effective upon ratification by nine states. This provision, delegates maintained, was in conformance with Article X of the Articles of Confederation and Perpetual Union authorizing nine states in Congress assembled to delegate its powers to the Committee of the States to execute during congressional recesses. Most delegates also were convinced that ratification of the fundamental document by nine states would pressure the remaining four states to ratify the document. Ratification Campaign The proposed U.S. Constitution was a controversial fundamental law with the strongest objection centering on the lack of a Bill of Rights although three civil liberty guarantees—prohibition of enactment of a bill of

8

INTERSTATE COOPERATION

attainder, an ex post facto law, and suspension of the writ of habeas corpus except during an invasion or rebellion—were included in section 9 of Article I. Not surprisingly, many of the constitution’s provisions were subjects of debate in various states. Critics also faulted the Constitution for its failure to acknowledge God and to require public offices be held by Christians. Fear also was expressed the president as commander-in-chief of the armed forces might become another Oliver Cromwell. The proposed constitution was ratified quickly by popular conventions in Delaware, New Jersey, and Pennsylvania. Connecticut and Georgia ratified the document shortly thereafter, but major objections were raised in Massachusetts, New York, and Virginia. Three prominent federalists—Alexander Hamilton, John Jay, and James Madison—wrote a series of eighty-five letters to editors of New York City newspapers, between late March and May 28, 1788, in an attempt to persuade New York to ratify the proposed constitution. These letters have been published collectively under the title The Federalist Papers and are the most informative expositions on the document as drafted.12 Each letter focused on a constitutional provision, explained its purpose, and defended its inclusion. The New York convention, by a margin of three votes, ratified the proposed constitution. The required nine states ratified the proposed constitution by the summer of 1788 and New York and Virginia ratified the document shortly thereafter. North Carolina and Rhode Island ratified the Constitution in the autumn of 1789 and spring of 1790, respectively. Contributing to the successful ratification campaign was a promise by the constitution’s proponents that the first order of business of the new Congress would be the proposal of a series of amendments to the U.S. Constitution that became known as the Bill of Rights.

CONSTITUTIONAL POWER DISTRIBUTION The U.S. Constitution established the world’s first federal system by delegating certain political powers to Congress and reserving all other powers not prohibited to the states and the people. Delegated powers include borrowing and coining money; constructing post roads; establishing post offices, and copyright and patent systems; levying taxes; raising and supporting an army and a navy; regulating commerce with foreign nations and Indian tribes, and among states; and other powers. Several powers are exclusive congressional ones as states are forbidden to exercise them, but it should be noted Congress cannot be forced to exercise any of its delegated powers. Their scope is subject to judicial interpretation. It is particularly noteworthy Congress is limited to providing only one service (postal) directly to citizens within states outside federally owned properties. Con-

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9

gress, however, influences the provision of services by subnational governments by means of conditional grants-in-aid. Initiation of the federal system immediately produced a debate between those favoring a loose construction of the delegated powers and those favoring a strict construction to protect state rights. The Constitution contains in section 8 of Article I the following clause that has been termed the “elastic” or “coefficient” clause: To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

This clause is the basis for the judicial doctrine of implied powers, the broad interpretation of which has augmented significantly the powers of Congress. The doctrine was developed in McCulloch v. Maryland in which the U.S. Supreme Court in 1819 pronounced: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.13

Eight constitutional amendments delegate additional powers to Congress. The Thirteenth Amendment grants power to Congress to enforce the prohibition of slavery and involuntary servitude with the exception of persons convicted of crime. Congress is authorized by the Fourteenth Amendment to enforce its guarantees of due process of law, equal protection of the law, and privileges and immunities of citizens of the United States against infringement by states. The Fifteenth Amendment forbids state denial or abridgment of the right of citizens to vote in elections “on account of race, color, or previous condition of servitude” and authorizes Congress to enforce the amendment. The Sixteenth Amendment allows Congress to levy a graduated income tax. Previously, Congress was limited to levying only a proportional income tax on corporations and individuals. The Nineteenth Amendment grants Congress the power to enforce the right of citizens to vote regardless of their sex. Congress is authorized by the Twenty-Third Amendment to enforce its provision granting the District of Columbia “[a] number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, . . .” The Twenty-Fourth Amendment bans the use of a poll tax as a voting condition and Congress is authorized to enforce the prohibition. And the Twenty-Sixth Amendment lowered the voting age in all elections

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to eighteen and grants Congress the power to enforce the amendment. The Eighteenth Amendment had granted Congress and states concurrent powers to enforce the prohibition of the sale of intoxicating liquors, but the amendment was repealed by the Twenty-First Amendment. Experience reveals that the Fourteenth and Fifteenth Amendments significantly increase the power of Congress to protect the rights of citizens, especially Blacks, against infringement by state and local governments. The Sixteenth Amendment, by permitting the federal government to raise large sums of money, enables Congress to employ conditional grants-in-aid and crossover sanctions (see below) to influence greatly the provision of services by and regulatory policies of states. The reserved or residual powers of states are not enumerated in the Constitution, yet are of great importance and include powers inherent in sovereign governments to borrow funds, provide services, regulate persons and property, and tax. Of particular importance is the exceptionally broad and exclusive police power exercisable by state legislatures to promote public health, safety, welfare, morals, and convenience. The legislature in each state initially possessed complete power over local governments, but home rule constitutional provisions in most states grant general purpose local governments significant discretionary authority.14 The delegation of enumerated powers to Congress does not preclude state legislatures from exercising the identical powers unless such exercise is prohibited by the U.S. Constitution or Congress has employed its power of preemption, based on a delegated power and the supremacy of laws clause of Article VI, to remove totally or partially a concurrent power from a state.15 As noted, interstate cooperation has been promoted in attempts to discourage Congress from employing its power of preemption. Such attempts have not always been successful and even an established interstate compact can be subject to congressional preemption. The Vehicle Equipment Safety Interstate Compact, entered into by forty-one states, was abolished in effect by Congress upon its enactment of the National Traffic and Motor Vehicle Safety Act of 1966, totally preempting responsibility for the regulation of motor vehicle safety.16 Articles I, III, and IV of the U.S. Constitution address relations between sister states—interstate commerce, interstate suits, interstate compacts, full faith and credit, privileges and immunities, and rendition of fugitives from justice. These interstate constitutional principles and the U.S. Supreme Court’s decision declaring the legal equality of states are examined in Chapter 2. The principles relating to compacts, full faith and credit, rendition, and privileges and immunities in general were borrowed from the Articles of Confederation and Perpetual Union.

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STATE ENACTMENT OF UNIFORM LAWS Section 10 of Article I of the U.S. Constitution authorizes a type of uniform state laws in the form of interstate compacts (see Chapters 3–5) within the territorial limits of each compact that may include only parts of two states or all states. The early compacts, with one exception, simply established state boundary lines and did not establish a general uniform law. Uniform state laws are the product of interstate cooperation. Industrialization and the growth of interstate commerce and travel subsequent to the Civil War revealed the major and minor problems created by nonuniform state laws and generated fears by a number of state elected officers that Congress might exercise its powers of preemption more frequently to remove regulatory powers from the states, as it did by enacting the Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act of 1890. A number of organizations decided to promote the enactment of uniform laws by state legislatures to facilitate interstate commerce and travel, and discourage congressional preemption. The American Bar Association in 1889 approved a resolution dedicating the association to work for the enactment of uniform state laws. The National Conference of Commissioners on Uniform State Laws was organized in 1892 when its first conference, attended by representatives of seven states, was held. The commissioners drafted several uniform laws to solve specific non-uniformity problems—such as acknowledgements on written instruments and recognition as valid wills probated in sister states. Noting the lack of uniformity in the legal weights of a bushel, the commissioners also prepared a table of weights and measures. All states appointed commissioners by 1912 and the District of Columbia, Puerto Rico, and the U.S. Virgin Islands subsequently appointed commissioners. Typically, the governor is authorized to appoint commissioners. The governor of New York, for example, is empowered by statute to appoint five commissioners who “hold office and may be removed at the pleasure of the governor.”17 The approximately 300 commissioners—attorneys, judges, nonpartisan judges—serve without compensation other than expenses. They draft uniform laws on a wide variety of subjects— Fiduciaries (1922), Parentage (1973), Interstate Family Support (1992)— and promote their enactment by their respective state legislatures. In addition, the conference drafts model acts providing guidance to state legislatures where uniformity on a subject is desirable but not essential. Its Model Administrative Procedure Act, for example, has been amended and enacted into law by most state legislatures. In common with interstate compacts, negotiations to reach an agreement of commissioners on a uniform law can be lengthy. Furthermore, persuading all or most state legislatures to enact a uniform law may involve years. The Uniform Commercial Code, drafted in 1951, was enacted by forty-

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nine state legislatures by 1965, but the Louisiana State Legislature did not enact it until 1991. The conference subsequently revised part 2 of Article 9 of the code, and twenty-eight state legislatures enacted the revision by 2001.18 Actions to promote the drafting and enactment of uniform laws can be initiated by a single state. In 1990, the New York State Legislature authorized the governor to appoint three commissioners to examine statutes pertaining to marriage and divorce, notarial certificates, insolvency, and other problems, and to recommend methods to encourage all state legislatures to enact uniform laws.19 CONGRESSIONAL PROMOTION OF UNIFORM LAWS As noted, the diversity in state laws on various subjects creates problems for business firms and citizens. This diversity often encourages individuals to travel to other states to initiate legal actions. Individuals and couples seeking a quick divorce, for example, often journey to Nevada in order to circumvent the divorce laws of their home state. A second example involves a California husband and wife who employed in 2000 a facilitator to obtain twin babies born in Missouri. A few weeks later, the birth mother told the couple she wanted to spend time with the children and bid them goodbye. The mother, however, gave the babies to a British couple who traveled to Arkansas and used a relative’s address to allow them to secure a court order to adopt the twin babies.20 California law provides that final adoptions will not be approved unless the adoptive parents are residents of the state. Subsequently, the British government returned the babies to the birth mother and an Arkansas court invalidated the adoption order. Congress recognized the diversity of state laws problem and initiated several actions to encourage states to enter into interstate compacts and enact uniform state laws. The classic formal mode of sister state cooperation is enshrined in section 10 of Article I of the U.S. Constitution authorizing states to enter into compacts with each other provided Congress grants its consent. To encourage states to negotiate and to enter into particular compacts, Congress in 1911 initiated the practice of granting consent to specified compacts prior to their drafting (see Chapter 3).21 Compacts, except boundary and study commission compacts, establish a uniform law within their respective jurisdictions and in effect establish a limited type of federation within the larger United States federation. Conditions first were attached to grants-in-aid to states by Congress in the Hatch Act of 1887 authorizing grants for the establishment of agriculture experiment stations at state colleges of agriculture.22 Congress also has employed a cross-over sanction to convince state legislatures to enact a uniform law. In 1974, for example, Congress used such a sanction to encourage state legislatures to lower the maximum highway speed limit to

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fifty-five miles per hour to conserve gasoline and diesel fuel by stipulating a state without such a speed limit would lose 10 percent of its federal highway grants.23 The following year, Congress enacted another cross-over sanction to promote motor fuel conservation by penalizing states with the loss of federal highway funds if they did not enact a statute allowing motorists stopped at a traffic light to make a right turn on red if no vehicle is approaching the intersection from the left.24 In 1984, Congress enacted a statute threatening states with the loss of highway funds for failure to enact a statute raising the minimum alcoholic beverages purchase age to twenty-one.25 The U.S. Supreme Court in 1987 upheld the constitutionality of the act and all states enacted compliance statutes.26 In 1998, Congress employed another cross-over sanction to encourage states to enact statutes relative to second and subsequent convictions of persons for driving while intoxicated or driving under the influence of alcohol.27 To avoid the loss of 10 percent of its federal highway grants, each state legislature was required to enact by October 1, 2000, a statute requiring • a minimum one-year driver’s license suspension for repeat intoxicated drivers; • impoundment or immobilization of all motor vehicles of repeated intoxicated drivers or installation of ignition interlock systems on such vehicles for a period of time during license suspension; • assessment of repeat intoxicated drivers’ degree of alcohol abuse and, when appropriate, referral to treatment; • a mandatory minimum sentence for repeat intoxicated drivers of five days imprisonment or thirty days of community service for the second offense, ten days of imprisonment or sixty days of community service for the third and subsequent offense.

Growing public concern about the drunk driving problem impelled Congress in 2000 to employ a cross-over sanction threatening states with loss of 2 percent of their federal highway grants-in-aid if they fail to lower the blood alcohol content (BAC) standard for determining drunk driving to 0.08 percent by 2004.28 The penalty will be increased to 8 percent by 2007 with states enacting the standards by that date receiving any grant funds withheld from other states for their failure to comply with the statute. Eighteen states and Washington, D.C. had the new standard in effect at the time of the congressional action. States also have been encouraged by Congress to cooperate with each other and/or enact nationally uniform laws and/or policies by other means. In 1982, Congress decided to facilitate interstate cooperation by establishing the National Driver Register (NDR).29 All states and the District of Columbia voluntarily send to NDR information relative to drivers convicted of major traffic offenses or whose applications for licenses have been

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denied or whose licenses to operate a motor vehicle have been revoked. The Commercial Motor Vehicle Safety Act of 1986 requires states to check the Register prior to issuing a commercial driver operator license.30 A state motor vehicle department can check with NDR electronically prior to issuing an operator’s license to determine whether the applicant has been convicted of motor vehicle offenses in sister states. If NDR has a file on the applicant, its Problem Driver Pointer System identifies the sister state(s) holding the driver’s substantive data and automatically transfers the data electronically to the inquiring state. Prior to renewing a license or addressing an in-state conviction of a motorist for a traffic violation, a state also can contact NDR for information on whether the concerned motorist has been convicted of motor vehicle violations in sister states. NDR processes more than 40 million file checks annually with approximately 5 million probable identifications. In 1998, Congress amended the enabling statute by providing the secretary of transportation “may enter into an agreement with an organization that represents the interests of the States to manage, administer, and operate the National Driver Register’s computer timeshare and user assistance function.”31 A 1990 congressional statute promotes establishment of a nationally uniform policy by directing each state legislature to enact a law mandating the revocation of the license of a driver of a motor vehicle convicted of a drugrelated crime.32 State sovereignty is respected by a section of the act permitting a state legislature to “opt out” of the requirement by enacting a resolution provided the governor posts a letter of concurrence to the U.S secretary of transportation. The approach incorporated in the act necessitates initiation of action by a state legislature if it wishes to exclude the state from the requirement. Congress assumed few state legislators would support an exclusion resolution. Previously, a state legislature could ignore a bill requiring the revocation of the driver license of a person convicted of a drug-related offense. Boating while intoxicated has become a major problem. Congress responded to the problem in the Coast Guard Authorization Act of 1984 directing the U.S. secretary of transportation to develop standards to be employed in determining whether a marine recreational vessel operator is intoxicated.33 In conformance with the act, the Coast Guard promulgated in 1987 a rule providing a state BAC standard, if one exists, is the national standard within that state.34 The national standard (.10 BAC) applies only if there is no state BAC standard. Hence, states lacking such a standard were encouraged to enact one. Fifty-four of fifty-six states and territories had enacted BAC standards by January 2001. Thirty-four had a .10 standard, nineteen had a .08 standard, and South Carolina used a .08 standard when a person has been injured. In consequence, the Coast Guard BAC standard applied only in New Mexico, the Northern Mariana Islands, and in South Carolina when there has been no injury and the state standard is

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not in effect.35 The Coast Guard on January 10, 2001, changed the national standard to .08 effective on March 15, 2001.36 Similarly, the Hotel and Motel Fire Safety Act of 1990 encourages state legislative enactment of uniform fire safety standards by stipulating traveling federal government employees may stay only in facilities in conformance with national fire safety standards.37 The act also authorizes the use of federal grant-in-aid funds to pay for a conference, convention, meeting, or training seminar only if it is held in a hotel or motel conforming to the standards. Congress in 1990 took another step toward solving a major problem in part through encouragement of interstate cooperation. The Clean Air Act Amendments created an Ozone Transport Commission composed of representatives of twelve northeastern states and the District of Columbia sharing a common smog problem.38 The commission recommended in 1994 the U.S. Environmental Protection Agency (EPA) should require the member states and the District of Columbia to adopt the California Low Emission Vehicles Program. EPA later in the same year authorized the concerned states and the district to adopt the program.39 The commission in the same year also initiated action to reduce nitrogen oxide emissions from large fossil-fuel burning facilities by means of a “cap-and-trade” program under which firms reducing emissions acquire emission credits which may be traded. In 2000, the commission announced nitrogen oxide emissions during the summer of 1999 were less than one-half of such emissions in 1990.40 AN OVERVIEW The nature and importance of interstate cooperation have changed dramatically since the U.S. Constitution became effective in 1789 when the economy was primarily agricultural and interactions between sister states were very limited. Interstate relations increased dramatically after the Civil War with rampant industrialization, new communications and transportation systems, rapid population growth, and urbanization. The intergovernmental and interstate governance principles incorporated in the Constitution to facilitate harmonious national-state and interstate relations generally have proven to be flexible ones allowing the national and state governments to develop new institutions and procedures to solve state, multistate, and national problems. Chapter 2 examines seven constitutional provisions designed to encourage cooperative interstate relations by ensuring the legal equality of each state; settling interstate suits; allowing states to enter into interstate compacts; creating a national legal system recognizing the statutes, judicial proceedings, and records of every state; promoting interstate citizenship; ensuring the rendition of fugitives from justice; and establishing internal free trade.

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The subject of Chapter 3 is interstate compacts that may include two to fifty states, the District of Columbia, Puerto Rico, U.S. territories, and Canadian provinces. A compact also can be limited to one town in each of two states. Such concordats, administered by a specially created commission or by departments and agencies of compacting states, did not achieve prominence until the twentieth century. Chapter 4 focuses on governing bodies created by compacts whose members usually are appointed by the governor of each compacting state subject to state senate or council approval, and also may include ex officio members who serve on the governing body by virtue of holding specified state offices and representatives of the U.S. government. Administration of compacts by state departments and agencies is the subject of Chapter 5. These compact administrators typically are professionals who are members of the same national and regional professional associations and often personally know their counterparts in sister states. Such personal relationships tend to promote interstate cooperation. Interstate administrative agreements, the subject of Chapter 6, are of great importance and involve all functional areas. Nevertheless, little literature exists on such agreements. These agreements may be written or verbal and also may be permanent or ad hoc in nature. There is no central repository for such agreements in any state. Chapter 7 draws conclusions relative to the effectiveness of various forms of interstate cooperation in solving transboundary problems. This chapter also contains recommendations to promote more harmonious interstate relations and prognosticates the future of sister state cooperation. NOTES 1. For general information on the U.S. system, consult Joseph F. Zimmerman, Contemporary American Federalism: The Growth of National Power (Leicester: Leicester University Press, 1992). 2. Joseph F. Zimmerman, Interstate Relations: The Neglected Dimension of Federalism (Westport, CT: Praeger Publishers, 1996). 3. W. Brook Graves, ed., “Intergovernmental Relations in the United States,” The Annals of the American Academy of Political and Social Science (hereafter referred to as The Annals) 207, January 1940, pp. 1–218; Richard H. Leach, ed., “Intergovernmental Relations in America Today,” The Annals 416, November 1974, pp. 1–169; and John Kincaid, ed., “American Federalism: The Third Century,” The Annals 509, May 1990, pp. 11–152. 4. New York Executive Law, §107(1). 5. Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991). 6. State Solvency Regulation of Property-Casualty and Life Insurance Companies (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1992).

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7. Interjurisdictional Tax and Policy Competition: Good or Bad for the Federal System (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1991). 8. Henry S. Commager, ed., Documents of American History to 1898, 8th ed. (New York: Appleton-Century-Crofts, 1968), vol. I, p. 120. 9. Ibid., pp. 128–32. 10. Gaillard Hunt, ed., The Writings of James Madison (New York: G.P. Putnam’s Sons, 1901), vol. II, p. 362. 11. Ibid., p. 365. 12. The Federalist Papers (New York: New American Library, 1961). 13. McCulloch v. Maryland, 4 Wheaton 316 (1819). 14. Joseph F. Zimmerman, State-Local Relations: A Partnership Approach, 2nd ed. (Westport, CT: Praeger Publishers, 1995). Consult also Joseph F. Zimmerman, Measuring Local Discretionary Authority (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1981). 15. Zimmerman, Federal Preemption. Consult also Joseph F. Zimmerman and Sharon Lawrence, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1992). 16. National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 719, 15 U.S.C. §1392(d). 17. New York Executive Law, §165. 18. Gerald T. McLaughlin and Neil B. Cohen, “Revised U.C.C. Art. 9, Part 2,” The National Law Journal 23, January 22, 2001, p. B5. 19. New York Laws of 1890, chap. 205 and New York Executive Law, §165. 20. Tamar Lewin, “At Core of Adoption Dispute Is Crazy Quilt of State Laws,” New York Times, January 19, 2001, p. A14. 21. Weeks Act of 1911, 36 Stat. 961, 16 U.S.C. §480. 22. Hatch Act of 1887, 24 Stat. 440, 7 U.S.C. §362 23. Emergency Highway Energy Conservation Act of 1974, 87 Stat. 1046, 23 U.S.C. §101 note. 24. Energy Policy and Conservation Act of 1975, 89 Stat. 933, 42 U.S.C. §6201. 25. National Minimum Drinking Age Amendments of 1984, 98 Stat. 437, 23 U.S.C. §158. 26. South Dakota v. Dole, 483 U.S. 203 (1987). 27. Transportation Equity Act for the 21st Century of 1998, 112 Stat. 328, 23 U.S.C. §410. 28. Ibid., 112 Stat. 240, 12 U.S.C. § 163. 29. National Driver Register Act of 1982, 96 Stat. 1740, 23 U.S.C. §401 note. See also 23 CFR 1325 and 1327. 30. Commercial Motor Vehicle Safety Act of 1986, 100 Stat. 3207, 49 U.S.C. §2701. 31. Transportation Equity Act for the 21st Century, 112 Stat. 335, 49 U.S.C. §30301 note. 32. Department of Transportation Appropriation Act of 1990, 104 Stat. 2185, 23 U.S.C. §104 note. See also 57 Federal Register, 35,986–36,001 (1992). 33. Coast Guard Authorization Act of 1984, 98 Stat. 2862, 46 U.S.C. §2302(c). 34. 33 CFR §95.025 (1987).

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35. Letter to author from Captain R.R. Weston of the U.S. Coast Guard’s Office of Boating Safety dated December 15, 2000. 36. “Revision to Federal Blood Alcohol Concentration (BAC) for Recreational Vessel Operators,” 66 Federal Register 1859 (January 10, 2001). 37. Hotel and Motel Fire Safety Act of 1990, 104 Stat. 747, 5 U.S.C. §701. 38. Clean Air Act Amendments of 1990, 104 Stat. 2448, 42 U.S.C. §7511c. 39. Matthew L. Wald, “California Car Rules Set as Model for the East,” New York Times, December 20, 1994, p. A16. 40. “New Report Shows Success Story in Air Pollution Trading,” a news release issued by the Ozone Transport Commission, March 27, 2000.

Chapter 2

THE CONSTITUTION AND INTERSTATE GOVERNANCE

The drafters of the U.S. Constitution fully recognized the need for inclusion of provisions establishing a framework for multifaceted interactions between states in the new governance system they were crafting. Experience with the Articles of Confederation and Perpetual Union revealed certain articles governing state interactions with each other were achieving their goals and these articles were incorporated in the Constitution. The Articles of Confederation, however, did not address two major problems. Interstate disputes over boundary lines, fishing rights, and other issues were left to states to negotiate. Furthermore, Congress under the Articles was not authorized to regulate commerce among the several states and was powerless to strike down state erected mercantilistic barriers to the free flow of commerce between sister states. The U.S. Constitution incorporates seven interstate principles—full faith and credit, legal equality of each state, privileges and immunities, internal free trade, interstate compacts (see Chapter 3), interstate rendition, and interstate suits. Although the constitution does not specify directly that each state is legally equal, the United States Supreme Court has interpreted the constitution as establishing a federal system composed of states equal to each other in law. FULL FAITH AND CREDIT The legislative acts of an independent nation, its court decisions, and its official records have legal standing only within its national boundaries unless other nations recognize the legal documents of a given nation on the basis of comity or reciprocity. The latter, often incorporated in a treaty, is

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a common method of extending the geographical reach of a nation’s legal documents. The Declaration of Independence produced thirteen new nations within part of the former territory of the United Kingdom. At that time, the only national body was the Continental Congress composed of delegates from each of the new nations. According recognition to the need for interstate comity, this Congress approved a resolution stipulating “full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state.” In 1777, the Continental Congress drafted the Articles of Confederation and Perpetual Union and submitted them to the states. Article IV included the full faith and credit guarantee of the resolution. In 1781, the thirteenth state ratified the Articles and they became effective. The drafters of the U.S. Constitution were aware a new nation could not function successfully without a full faith and credit guarantee, and included the Articles’ language in Article IV and also stipulated “Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Delegates to the Constitutional Convention were concerned the lack of such a congressional power would mean “the provision would amount to nothing more than what now takes place among all independent nations.”1 James Madison argued the requirement would serve as “a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice may be suddenly and secretly transformed in any stage of the process, within a foreign jurisdiction.”2 The full faith and credit provision appears to require reciprocity with respect to civil matters, but experience revealed the need for courts to determine the applicable law in the event of a conflict between the laws of two states. Congressional Clarification Although convention delegates believed it was vitally important for Congress to possess the power to supplement and enforce the full faith and credit guarantee, Congress seldom has exercised this power possibly because the threat of such a power exercise usually is sufficient to deter states from nonrecognition of acts, records, and judicial proceedings of sister states. Congress in 1790 and 1804 enacted laws prescribing the method of authenticating public acts, judicial proceedings, and records of a state and hence determining their extraterritorial effect. The 1790 statute specifically provides that “records and judicial proceedings shall have such full faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the states from where the said records are or shall be taken.”3 The guarantee was extended to public acts of state

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legislatures by the 1804 statute that created an additional method of exemplification of nonjudicial records by prescribing their effect in terms similar to terms in the 1790 statute.4 The failure of Congress to provide additional clarification for two centuries resulted in the United States Supreme Court “legislating” relative to the full faith and credit guarantee. In 1994, Congress enacted a law establishing standards that must be followed by state courts in determining their jurisdiction to issue child support orders and the effect that must be given by courts of sister states to such orders.5 The 1994 decision of the Hawaiian Supreme Court interpreting the state constitution as authorizing the marriage of two persons of the same sex generated considerable opposition throughout the United States and pressure on Congress to enact a statute authorizing a sister state to deny full faith and credit to a Hawaiian marriage certificate of two persons of the same sex. Congress responded with the Defense of Marriage Act of 1996 which defines a marriage as “a legal union between one man and one woman as husband and wife,” declares the term “spouse” designates “a person of the opposite sex who is husband or a wife,” and authorizes a state to deny full faith and credit to a marriage certificate of two persons of the same sex.6 Interestingly, the Hawaiian State Legislature proposed and voters ratified a constitutional amendment reversing the decision of the Hawaiian Supreme Court.7 To date, Congress has enacted no additional statute to clarify the guarantee, and its failure to do so results in courts continuing to play a major interpretive role. A state legislature may enact laws providing less stringent standards than the congressional ones for the authentication of judicial proceedings, but may not deny its courts jurisdiction over cases involving duties and rights created under the laws of another state. Furthermore, a court cannot refuse to enforce such a duty or right because the court believes the reasoning of a sister state court is invalid. A civil judgment of a state court has automatic validity in sister states, but a sister state court may conduct an inquiry to determine whether the court had jurisdiction to issue the decision. If a court lacks jurisdiction or a ruling was obtained by fraud, the court’s decision is not protected by the full faith and credit clause. In addition, a court does not have jurisdiction over property located outside its state boundaries. A contract or deed executed in one state is valid in all the other states even though the requirement for the number of witnesses may vary. Supreme Court Clarification In its early decisions, the United States Supreme Court directed that full faith and credit be accorded to decisions of courts of sister states, but made no reference to statutes. In 1813, the court ruled foreign (sister) state judgments had conclusive effect and noted: “It is manifest . . . that the consti-

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tution contemplated a power in Congress to give a conclusive effect to such judgments.”8 The court on numerous occasions invalidated choice of law decisions as unconstitutional in the period 1866–1935. New York’s application of its law in determining the effect to be given to a judgment of a sister state court was struck down in 1866 by the U.S. Supreme Court.9 In 1877, the court for the first time made explicit the full faith and credit clause limits choice of law.10 A change in the court’s position on the clause occurred in 1935 and involved a case where employees of a California firm were injured in Alaska. The court opined it would evaluate “the governmental interests of each jurisdiction” and rule “according to their weight.”11 The court held Alaska’s interests were inferior to California’s interests.12 In 1939, however, the court reversed the decision by ruling “the very nature of the federal union . . . precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”13 Currently, the complexities of the full faith and credit guarantee arise with respect to a divorce that appears to be the product of a migratory divorce proceedings and an attempt by an individual to avoid child support by relocating to another state. Divorce Proceedings The jurisdiction of a court is determined by domicile, a legal concept. The lack of a common residency requirement for determining domicile and common grounds for divorce among the fifty states encourages one or both parties to migrate from a state with a long residency requirement and a strict ground(s), adultery for example, to a state where the residency requirement is short and mental anguish may qualify as a ground. A state is not required to extend full faith and credit to a divorce decree of a sister state court if due process of law—notice, hearing, and appeal— has not been provided in the concerned divorce proceeding. Similarly, a state does not have to extend full faith and credit to a divorce decree issued by a court lacking jurisdiction over the parties. The doctrine of estoppel precludes a person from subsequently denying the truth of his statements or facts that he led other persons to believe to be true. A respondent in a foreign state ex parte divorce can be estopped by a subsequent marriage to collaterally attack the divorce decree. In other words, a person cannot accept the benefits of a divorce decree and later maintain it is void.14 In addition, full faith and credit is subject to res adjudicata; that is, a thing adjudicated must be accepted as the truth. In other words, a competent tribunal’s decision is conclusive unless reversed by a court and cannot be raised again by the parties to the suit.

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Two decisions, involving the same two individuals, issued by the United States Supreme Court in 1942 and 1945 dealt with the question of whether the parties who traveled from their home state of North Carolina to Nevada, where each obtained a divorce and subsequently married each other, decided to seek a Nevada divorce because the only ground for divorce in their home state was adultery which is a crime. Upon their return to North Carolina, they were charged, tried, and convicted of bigamous cohabitation. The state supreme court upheld the verdict. Upon appeal, the United States Supreme Court in 1942 opined “that domicile of the plaintiff’s spouse in a state is sufficient to entitle a divorce decree by a court of that state to full faith and credit.”15 The court in effect eliminated the concepts of marital domicile and fault. The two persons later were tried a second time on the charge of bigamous cohabitation during a different time period and were convicted by the trial court on the ground the parties were not domiciled legally in Nevada when the divorce decrees were issued. The North Carolina Supreme Court upheld the conviction and it was appealed. Facts were brought out in the second trial that the parties resided in a highway transient cabin in Nevada for the required minimum of thirty days to establish Nevada residence, immediately filed for divorces from their respective spouses, married each other upon receipt of their respective divorces, and returned soon thereafter to North Carolina. The U.S. Supreme Court in 1945 affirmed the conviction: “North Carolina could inquire into the jurisdiction of the Nevada court to render the judgment, and in divorce cases domicile of one of the parties is essential to jurisdiction.”16 Justice Felix Frankfurter, writing for the court’s majority, held: The decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicile is a jurisdictional fact. To permit the necessary finding of domicile by one State to foreclose all States in the protection of their social institutions would be intolerable.17

In 1948, the court modified slightly this 1945 ruling by opining “full faith and credit bars a litigant who has previously appeared in an action from contesting the jurisdictional issues.”18 In a second 1948 decision, the court opined the full faith and credit clause prevents the redetermination of the jurisdictional basis of a divorce decree when (1) the defendant participated in the divorce proceedings, (2) a full opportunity to contest the jurisdictional issue had been accorded the defendant, and (3) the decree is not susceptible to such collateral attack in the courts of the state which initially rendered the decision.19 The personal appearance doctrine emerged in these decisions; that is, a personal appearance or the opportunity for one mandated the application of full faith and credit to a divorce decree.

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Interstate Child Support Full faith and credit is extended, with a few exceptions, to support orders of a court in a sister state, yet the custodial parent often experiences serious difficulties in collecting child support. Historically, only interstate rendition was available as a remedy if a noncustodial parent subject to a support order moved to another state and could not be utilized unless criminal charges had been filed. Furthermore, the rendition process was burdened by the difficulty of locating the noncustodial parent and lengthy due process of law procedures. The National Conference of Commissioners on Uniform State Laws attempted to solve the problem by drafting in 1950 the Uniform Reciprocal Enforcement of Support Act (URESA); amendments were adopted in 1952, 1958, and 1968. With the exception of New York, all state legislatures have enacted a version of the act. URESA established a civil procedure, similar to interstate rendition, for a parent charged with nonpayment of child support. The uniform law offers the custodial parent an expeditious alternative to appearing in a court in the noncustodial parent’s state or to employ a “long-arm” statute. The latter empowers a court to exercise extraterritorial in personam jurisdiction over a nonresident defendant and to treat the interstate case as a domestic case. Unfortunately, these statutes are not uniform among the states and may not comport with the Fourteenth Amendment’s due process of law requirements. URESA has not solved the child support problem and Congress has attempted to assist the custodial parent to collect such support by requiring each state to expand wage withholding procedures to enforce the support orders of other states and making it a crime for an obligor residing in a state other than the one where the obligee resides to refuse to pay a pastdue support obligation for more than one year or exceeding $5,000.20 LEGAL EQUALITY OF STATES The Articles of Confederation clearly established “a firm league of friendship with each other” and stipulated each state retains “its sovereignty” and hence its equal status.21 The U.S. Constitution, in contrast, does not proclaim directly that each state has an equal status although such an inference can be gained from reading provisions relating to representation in the U.S. Senate and participation in the amendment of the fundamental document. The only explicit constitutional distinctions are the number of representatives in Congress and the number of presidential and vice presidential electors, distinctions based on the population of the various states. The constitution grants Congress authority to admit new states into the union and on occasion Congress has established preconditions for a territory seeking admission to the union. A territory failing to comply with the

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conditions will not be elevated to state status. The fourteenth state, Vermont, was admitted to the union on March 4, 1791, “as a new and entire member of the United States of America.”22 Kentucky was admitted to the union on the same basis on June 1, 1791, and in admitting Tennessee to the union Congress declared the state to be “one of the United States” which was “on an equal footing with the original states in all respects whatsoever.”23 Alaska and Hawaii, the two newest states, and all other states possess the identical Tenth Amendment reserved powers. Courts may enforce congressionally established preconditions for admission of a territory to the union as a state if they concern grants of land or money to the state or federal property in the new state.24 If a congressional precondition imposed on a territory seeking admission to the union concerns a change in the nature of the state government decision-making process or its organization, a territory will be denied admission unless the proposed state constitution ratified by territorial voters contains the precondition. Once admitted to the union, the state is free to ignore the precondition. Congress imposed the precondition on the Oklahoma Territory that Guthrie must be the capital of the state. Shortly after admission to the union, the state legislature relocated the capital to Oklahoma City. The U.S. Supreme Court in 1911 upheld the authority of the state legislature to relocate the capital and opined “This Union” was and is a union of states, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new states, might come to be a Union of states whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.25

Voters in the Territory of Arizona approved a state constitution that made elected state judges subject to a recall election triggered by the gathering of signatures of a prescribed percentage of the registered voters.26 In admitting the Arizona Territory to the union, Congress included in the joint admission resolution a requirement that a proposed constitutional amendment that would repeal the constitutional recall provisions be submitted to the voters. The joint resolution was vetoed by President William H. Taft in 1911 who wrote in his veto message that application of the recall “to county and state judges, seems to me so pernicious in its effect, so destructive on the independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of the a popular majority, and, therefore, to be so injurious to the cause of free governments, that I must disapprove a constitution containing it.”27

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Arizona in a referendum removed the recall provisions from the proposed state constitution and the territory was admitted to the union. Shortly thereafter, voters approved a constitutional amendment reinserting the recall provisions. New Mexico also removed the recall provision from its proposed state constitution at the insistence of President Taft.

PRIVILEGES AND IMMUNITIES The first document guaranteeing citizens privileges and immunities is the 1606 royal charter granted to the Virginia Company guaranteeing the colonists would possess the same franchises, immunities, and liberties as possessed by citizens in England. In drafting the Articles of Confederation and Perpetual Union, the Second Continental Congress sought to ensure a sojourner would not be treated as an alien during a visit to another state. Article IV stipulated citizens of each state “shall be entitled to all the privileges and immunities of free citizens in the several states.” Section 2 of Article IV of the U.S. Constitution provides “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This guarantee, in conjunction with the full faith and credit guarantee, is designed to promote interstate citizenship by forbidding a state legislature to favor its citizens over visiting U.S. citizens from other states in terms of privileges and immunities. The identical wording appears in the Fourteenth Amendment and seeks to protect the citizens of a state against discrimination against a certain group(s) of citizens by its state legislature with respect to the granting of privileges and immunities to its citizens. The drafters of the guarantee utilized general terms, without definitions, suggesting each citizen is guaranteed equal privileges and immunities. As noted, Congress possesses the power to clarify the full faith and credit guarantee. The Constitution, however, does not grant to Congress a similar power to clarify the privileges and immunity clause. In consequence, the courts have been called upon to provide clarification. The first clarification occurred in 1823 when Justice Bushrod Washington of the U.S. Supreme Court presided over a trial in the Circuit Court for the Eastern District of Pennsylvania. In his opinion, Washington noted the fundamental character of the guarantee and listed a number of examples that subsequently were cited in court decisions.28 In 1868, this decision was undercut by the U.S. Supreme Court’s ruling nonresidents possess only the privileges and immunities possessed by citizens of the state of sojourn.29 In other words, a sojourner cannot demand that a state extend to him/her all privileges and immunities extended by the home state including ones denied by the state to its own citizens. Nevertheless, he/she may have the basis for a due process of law, equal pro-

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tection of the law, or interstate commerce challenge of an alleged discriminatory action by the visited state. Chief Justice Fred M. Vinson of the U.S. Supreme Court summed up the nature of the privileges and immunities guarantee in 1948 by opining: [T]he privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other states where there is no substantial reason for discrimination beyond the mere fact that they are citizens of other states. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also . . . be conducted with due regard for the principle that the states should have considerable leeway in analyzing local evils and prescribing appropriate cures.30

Corporations Article IV of the Articles of Confederation and Perpetual Union protected “all the privileges of trade and commerce.” This guarantee, however, is not included in the privileges and immunities clause of the U.S. Constitution. In 1839, the U.S. Supreme Court made clear a corporation dwells only “in the place of its creation, and cannot migrate to another sovereignty.”31 Hence, a corporation is not entitled to privileges and immunities. The court additionally has held the guarantee applies only to citizens and not to associations.32 In general, states are free to discriminate in terms of privileges and immunities against a foreign corporation (chartered by a sister state) and an alien corporation (chartered by another nation) by levying higher license fees and taxes on such a corporation than on a domestic corporation. If it was so unwise, a state legislature might forbid an alien or foreign corporation to conduct business in the state without violating the privileges and immunities clause. Such a prohibition, however, could be challenged in court on other constitutional grounds and also would generate retaliation by sister states and foreign nations. Taxation Commencing in 1870, the U.S. Supreme Court examined critical taxes and fees levied on nonresidents who lack representation in the state legislature. In that year, the court struck down a Maryland law requiring a nonresident to pay a $300 license fee for the privilege of trading in goods manufactured outside the state.33 A Maryland trader paid a fee ranging from $15 to $150, depending on his inventory, for the identical privilege. In 1920, the court invalidated a nonresident income tax levied by New

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York because only resident taxpayers were granted a personal exemption for himself/herself and each dependent.34 The court in 1948 struck down a statute levying a $2,500 license fee on a nonresident owner of a shrimp boat and only a $25 license fee on each such boat owned by a resident by ruling a nonresident citizen has the right to conduct business in a sister state “on terms of substantial equality with the citizens of that state.”35 A 1975 Supreme Court decision, in Austin v. New Hampshire, reveals the subtleties of a 4 percent income tax levied on nonresidents who work in the state.36 New Hampshire residents are not subject to a tax on earned income. The New Hampshire attorney general defended the commuter tax by maintaining no onerous burden is placed on Maine residents who work in New Hampshire since Maine grants a tax credit to its residents for income taxes paid to other states. The court rejected this argument by opining the Maine tax credit does not cure the constitutional discriminatory defect of the tax.37 In practice, the tax was diverting revenue from Maine to New Hampshire.

Beneficial Services Are nonresidents entitled to share in the resources and beneficial services of a state under the privileges and immunities guarantee? The Supreme Court in a series of decisions has answered the question in the negative. In 1876, the court upheld the conviction of a nonresident for planting oysters in Virginia’s waters by ruling “we may safely hold that the citizens of one state are not invested by this clause of the constitution with any interest in the common property of the citizens of another state” whether on dry land or in the waters of the state.”38 In 1971 and 1973, the court summarily affirmed two lower court decisions upholding the validity of state durational residence requirements for students to qualify for lower tuition at state colleges and universities.39 The court explained nonresident students had not paid state taxes prior to entering the college or university and taxes paid after entrance do not total the amount of the difference between resident student tuition and nonresident tuition. Use of state property by nonresidents is not protected by the privileges and immunities clause. A state may exclude from or limit the use of state property by nonresidents. In 1978, the Supreme Court declared nonresidents of Montana do not have a fundamental right to a hunting license and the state may charge a nonresident a higher license fee because hunting is “recreation” and not a means of “livelihood.”40 This decision affirmed the right of states to set higher fishing and hunting license fees for nonresidents. A state, however, must treat residents of all other states equally and may not favor residents of one state over residents of sister states.

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Political and Other Privileges Does the privileges and immunities clause entitle nonresidents the right to vote and to hold elected office? The U.S. Constitution clearly answers the question in the negative relative to the qualifications required to serve as a U.S. representative or senator.41 It is apparent that states no longer would be quasi-sovereign polities if nonresidents could participate in their elections. In 1972, the Supreme Court ruled a state may restrict the voting privilege to its citizens and six years later affirmed the right of a state to restrict the holding of elective public offices to residents.42 The court usually invalidates residency requirements for appointive positions, but in 1978 validated a New York statute stipulating the state may restrict appointment of members of the state police to U.S. citizens and in 1979 upheld a similar New York law relative to public school teachers.43 Extended durational residency requirements have been established by state legislatures as conditions of eligibility for various privileges and immunities, including quasi-political rights to practice professions such as dentistry, law, and medicine. Courts generally have upheld these requirements relative to the regulation of the practice of dentistry and medicine.44 In 1985, however, the U.S. Supreme Court opined “the practice of law falls within the ambit of the Privileges and Immunities Clause.”45 This decision concerned a Vermont resident who resided less than 400 yards from the New Hampshire boundary and met all the stipulated requirements for admission to the New Hampshire bar. She was refused admission to the bar until she established a residential address in New Hampshire. New Hampshire argued a nonresident would be less apt to be familiar with local procedures and rules, behave ethically, be available for court proceedings, or perform pro bono work. The court dismissed these arguments by finding “the means chosen do not bear the necessary relationship to the state’s objectives.”46 INTERNAL FREE TRADE The Revolutionary War following the Declaration of Independence, under the direction of the Second Continental Congress, necessitated the mobilization and the unhindered interstate movement of the manpower and other resources of the thirteen newly independent states. The Articles of Confederation and Perpetual Union, drafted by the Congress and submitted to states in 1777, created and granted to a unicameral Congress several important powers, including declaring war, entering into treaties, establishing post offices, and regulating coinage, but did not authorize Congress to regulate commerce among the states. Article IX specifically forbade Congress to enter into a “treaty of commerce” that restrains a state legislature “from imposing such imposts and duties on foreigners, as their own people

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are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.” States, subsequent to the conclusion of the Revolutionary War, commenced to engage in mercantilistic practices designed to protect their business firms and farmers. State-erected trade barriers by the mid-1780s were beginning to strangle interstate commerce. To solve this problem, the drafters of the U.S. Constitution included in Article I, section 8 a clause delegating to the authority of Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In addition, section 10 of the same article forbids states to levy import or export duties except to finance their inspection activities; any surplus revenue is dedicated to the United States Treasury. This section also forbids a state to “lay any duty of tonnage” on ships. Fearing that the bicameral Congress might favor individual states over sister states, the drafters included in section 9 of Article I a clause forbidding Congress to give preference “to the ports of one state over those of another” or to require “vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another.” The interstate commerce clause generally has been given a broad scope by U.S. Supreme Court decisions including ones based upon its “dormant commerce clause” doctrine holding a state or local government law is invalid if it conflicts with the clause in the absence of congressional statute on the subject. Not surprisingly, there often is a clash between the clause and state and local laws based upon the reserved police power of the states to protect the health, safety, welfare, morals, and convenience of their citizens. A number of state and local government laws based upon the police power clearly impede interstate commerce and have been invalidated by courts. Since each state possesses broad regulatory authority, non-uniformity in state laws is common and burdens interstate commerce. These impediments to internal free trade can be removed by means of congressional preemption of specific state regulatory authority, congressional use of cross-over sanctions and tax credits to encourage state legislatures to enact parallel policy statutes on a given subject, court decisions, enactment of uniform state laws, and reciprocity. INTERSTATE COMPACTS The drafters of the U.S. Constitution accorded recognition to the need for a mechanism to solve regional problems by authorizing (Art. I, §10) states to enter into compacts with the consent of Congress. The compact clause is similar to Article VI of the Articles of Confederation and Perpetual Union, and, by negative implication, empowers states as equals to enter into legally binding agreements subject to congressional approval (see

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Chapter 3). The U.S. Supreme Court, on occasion, is called upon to interpret a compact. Until 1893, it was assumed congressional consent was required for all compacts. In that year, however, the United States Supreme Court in Virginia v. Tennessee opined consent was required only for compacts tending to increase “the political power or influence” of the compacting states and to encroach “upon the full and free exercise of federal authority.”47 In 1939, the court upheld the constitutional validity of a reciprocal sales tax agreement between Kentucky and Ohio by rejecting a petition for issuance of a writ of certiorari to overturn the decision of the Kentucky Supreme Court that congressional consent was required only for a political compact.48 In consequence, the consent requirement does not prevent states interacting with each other on the basis of reciprocity or state administrative officers of sister states entering into formal and informal cooperative agreements (see Chapter 6). The most recent U.S. Supreme Court decision involving a compact was rendered in 1998 when the court examined the 1834 compact entered into by New Jersey and New York granting the latter jurisdiction over an island located in the Hudson River, and granting New Jersey jurisdiction over submerged lands surrounding Ellis Island located in New York Harbor 1,300 feet from Jersey City, New Jersey, and one mile from the southern end of Manhattan. New York in 1800 transferred jurisdiction over the island, with the exception of the service of judicial process, to the United States which opened the Ellis Island immigration station in 1892, and subsequently expanded the island by filling in the surrounding water. The issue before the court was the question of which state possessed jurisdiction over the filled areas of the island. The court appointed a special master to investigate the dispute and conflicting evidence presented by the two states, and prepare a report with recommendations. The court in general upheld the recommendations of the special master to the effect New Jersey has jurisdiction over the filled areas.49 All compacts enacted into law by state legislatures establish a contractual relationship between the party states which is protected from impairment by the U.S. Constitution’s contract clause (Art. I, §10). By entering into compacts other than advisory or study ones, states surrender part of their sovereign authority since compacts, in common with international treaties, supersede any conflicting state laws. In effect, a compact establishes the equivalent of a uniform law in all or part of the territory of the compacting states. A compact may be a permanent or temporary one and also may provide for its implementation by a commission or departments and agencies of the party states. Compacts may be developmental (bridges and tunnels are examples) or regulatory such as the Interstate Driver’s License Compact. A number of compacts create study commissions or are mutual aid or standby

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ones that are implemented only when a need arises. A small number of compacts have been enacted into law by state legislatures and Congress (see Chapter 4). INTERSTATE RENDITION Procedures for interstate rendition of fugitives from justice are essential in a confederal or federal system to ensure criminals and persons charged with crimes are unable to find sanctuary in a sister state. The first such procedures were established by colonies which were part of the 1643 New England Confederation.50 Article IV of the Articles of Confederation and Perpetual Union established a procedure for interstate rendition. An almost identically worded rendition provision is included in section 2 of Article IV of the U.S. Constitution. Congressional Clarification Congress is not specifically authorized by the U.S. Constitution to prescribe the manner of rendition of a fugitive to the demanding state. However, Congress in 1793 enacted a statute, based upon the rendition and full faith and credit clauses, stipulating the request for the rendition of a fugitive from justice can be initiated only by the governor of a state and must be addressed to the governor of the asylum state.51 The requesting state must send an officer to collect the fugitive and to pay for all expenses relating to the arrest, incarceration, and transportation of a fugitive. A state legislature may enact a statute regulating the arrest and detention of fugitives from justice provided the statute does not conflict with the federal statute. Supreme Court Clarification The U.S. Supreme Court did not interpret the interstate rendition clause of the constitution or the 1793 congressional rendition statute until 1861 in a case involving an action, under the court’s original jurisdiction, for issuance of a writ of mandamus directing the governor of Ohio to render to Kentucky a freed slave charged with the crime of assisting the escape of a Kentucky slave. The Ohio attorney general issued an opinion the constitutional rendition clause pertained only to acts that are crimes under Ohio laws. The Supreme Court rejected this opinion and ruled the clause clearly “was intended to include every offense made punishable by the law of the state in which it was committed.”52 The court opined the constitutional directive that a fugitive, “shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime” was “not used as mandatory and compulsory,

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but as declaratory of the moral duty” of the governor of the asylum state to render the fugitive.53 This decision stood for 126 years until the court in Puerto Rico v. Branstad overturned the precedent by holding [T]here is no justification for distinguishing the duty to deliver fugitives from the many other species of constitutional duty enforceable in the federal courts. . . . Because the duty is directly imposed upon the states by the constitution itself, there can be no need to weigh the performance of the federal obligation against the powers reserved to the states under the Tenth Amendment.54

INTERSTATE SUITS Opponents of a national judiciary maintained at the 1787 constitutional convention such a judiciary was unnecessary as state courts could adjudicate state and national controversies. Advocates, on the other hand, were convinced state courts would be unable to resolve interstate suits in an impartial manner. Furthermore, state courts probably would interpret provisions of the U.S. Constitution and congressional statutes in a non-uniform manner that would create serious legal problems and promote disharmony among the states. Interstate disputes, particularly boundary ones, were common during the period the Articles of Confederation and Perpetual Union were in effect. Delegates to the 1787 constitutional convention in Philadelphia recognized a neutral judicial forum was essential if interstate disputes were to be resolved. They included in section 1 of Article III of the U.S. Constitution a provision that “[t]he judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Section 1 of the Constitution grants the U.S. Supreme Court nonexclusive original [trial] jurisdiction “in law and equity” over all “controversies between two or more states.” Congress has not enacted a law regulating the invocation of the court’s original jurisdiction or its procedures. The court has determined its original jurisdiction over interstate disputes is discretionary rather than mandatory. In Missouri v. Illinois in 1905, the court opined a suit by one state against a sister state would not persuade the court to exercise its original jurisdiction over such a suit unless it was of serious magnitude.55 The court has established a procedure a state must follow if it desires to sue a sister state; that is, the state must file with the clerk of the court a motion and a supporting brief seeking the court’s expressed permission to file an original jurisdiction suit.56 The state subject to a possible suit files a respondent brief, and the court usually appoints a special master with responsibility for collecting evidence from the party states and preparing recommendations with respect to facts and law. To encourage the disputing

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states to resolve their differences through negotiations, the court emphasized original jurisdiction will be invoked sparingly.57 In the event the concerned states do not reach a negotiated agreement based upon the master’s recommendations, the states submit briefs to the court which also holds an oral hearing prior to making a decision whether to exercise original jurisdiction. In making its determination with respect to exercising original jurisdiction, the court employs three criteria. First, the court seeks to determine whether each contesting state is a genuine party or represents a municipality or a private corporation. A state in its proprietary capacity or as parens patriae (father of its people) may bring suit against a sister state, but cognizance must be taken by the court of the Eleventh Amendment to the U.S. Constitution prohibiting the filing of a suit by a citizen of a state against another state without its expressed consent. In Pennsylvania v. New Jersey, the court in 1976 rejected Pennsylvania’s challenge of a New Jersey commuter income tax on the ground the suit was “nothing more than a collectivity of private suits against New Jersey for taxes withheld from private parties.”58 The court explained a state will be allowed to sue as parens patriae only if “its sovereign or quasisovereign interests are implicated and it is not merely litigating as a volunteer for the personal claims of its citizens.”59 Second, the court seeks to determine whether the controversy is justiciable in nature requiring adjudication by a law court. The court in 1940 in Massachusetts v. Missouri clearly explained this criterion. In order to constitute a proper controversy under original jurisdiction, it must appear that the complaining state has suffered a wrong through the action of the other state, furnishing grounds for judicial redress, or is asserting a right against the other state which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence.60

A genuine interstate dispute may become moot. The court in 1981 summarily denied without prejudice California’s suit against five states which had placed a quarantine on the importation of California fruits and vegetables in an effort to keep the Mediterranean fruit fly from spreading to their states.61 The dispute was mooted by the termination of the quarantines. Appropriateness is the third criterion employed by the court in determining whether to exercise its original jurisdiction. A crowded docket led to the court first enunciating the appropriateness criterion in 1971 in a suit filed by Ohio against a corporation.62 Shortly thereafter, the court extended the criterion to interstate disputes. Appropriateness is determined by three factors: the parties involved, seriousness of the subject matter, and availability of an alternate judicial forum. First, the court gives great weight to a motion seeking invocation of its

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original jurisdiction if the disputing states are acting in their sovereign capacities. Second, the court is more apt to invoke its original jurisdiction if the controversy is a major one, such as water allocation in contrast to a minor one alleging breach of a contract providing for a football game between a state university in each of two states.63 The third factor is the availability of an alternative judicial forum. The U.S. Supreme Court in 1976 rejected Arizona’s motion for the court to invoke its original jurisdiction against New Mexico because a similar suit, raising the identical question regarding the U.S. Constitution, had been filed by Arizona public utilities in a New Mexico court.64 SUMMARY The interstate constitutional principles described in this chapter establish a general framework for interactions between equal sister states. Two principles—full faith and credit, and privileges and immunities—are designed to promote the establishment of interstate citizenship with each state treating sojourners as if they were citizens of the state. As explained, the U.S. Supreme Court recognizes the semi-sovereign nature of each state and has allowed states in certain instances to deny full faith and credit and to discriminate against nonresidents in terms of certain privileges. In general, the court has struck down state erected trade barriers as violative of the interstate commerce clause of the U.S. Constitution, but occasionally has not invalidated a facially discriminatory tax on the ground it did not impose a significant burden on commerce among the states. Interstate rendition of a fugitive from justice, under a U.S. Supreme Court ruling in effect from 1861 to 1987, was dependent upon the cooperation of the asylum state governor. Today, the governor of an asylum state has a legal obligation to return a fugitive at the request of the state from which he/she fled. The subject of Chapter 3 is interstate compacts, a constitutionally recognized means for conjoint actions provided Congress grants its consent to political compacts. Extra-constitutional means for conjoint state action also exist and are examined in Chapter 6. NOTES 1. Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1966), vol. III, p. 489. 2. The Federalist Papers (New York: New American Library, 1961), p. 271. 3. 1 Stat. 122 (1790), 28 U.S.C. §1738. 4. 2 Stat. 298 (1804), 28 U.S.C. §1738. 5. Full Faith and Credit for Child Support Orders Act of 1994, 108 Stat. 4063, 28 U.S.C. §1738B.

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6. Defense of Marriage Act of 1996, 110 Stat. 2419, 1 U.S.C. §1 note. 7. “Hawaii’s Ban on Gay Marriage,” New York Times, December 20, 1999, p. A36. 8. Mills v. Duryee, 7 Cranch (11 U.S.) 481 at 485 (1813). Consult also Bank of Augusta v. Earle, 38 U.S. 519 (1839). 9. Green v. Van Buskirk, 72 U.S. 307 (1866). 10. Chicago and Alton Rail Road v. Wiggins Ferry Company, 119 U.S. 615 at 622 (1877). 11. Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532 (1935). 12. Ibid. at 549–50. 13. Pacific Employers Insurance Company v. Industrial Accident Commission, 306 U.S. 493 at 501 (1939). A similar decision was issued in Carroll v. Lanza 349 U.S. 408 (1955). 14. See, for example, Kaufman v. Kaufman, 163 N.Y.S. 566 (1917). 15. Williams v. North Carolina, 317 U.S. 287 (1942). 16. Williams v. North Carolina, 325 U.S. 226 at 228 (1945). 17. Ibid. at 229. 18. Sherrer v. Sherrer, 334 U.S. 367 (1948). 19. Coe v. Coe, 334 U.S. 378 at 384 (1948). 20. Child Support Enforcement Amendments of 1984, 98 Stat. 1305, 42 U.S.C. §1305 note and Ted Weiss Child Support Enforcement Act of 1992, 106 Stat 3531, 15 U.S.C. §1681s-1. 21. Articles of Confederation and Perpetual Union, Art. II–III. 22. 1 Stat. 191 (1791). 23. 4 Stat. 401 (1796). 24. Sterns v. Minnesota, 179 U.S. 223 (1900), and Ervien v. United States, 251 U.S. 41 (1919). 25. Coyle v. Smith, 221 U.S. 559 at 619 (1911). 26. For details on this participatory device, consult Joseph F. Zimmerman, The Recall: Tribunal of the People (Westport, CT: Praeger Publishers, 1997). 27. Congressional Record, August 15, 1911, p. 3964. 28. Corfield v. Coryell, 6 F.Cas. 546 at 551–52 (CC ED Pa., 1823). 29. Paul v. Virginia, 75 U.S. 168 (1868). 30. Toomer v. Witsell, 344 U.S. 385 at 396 (1948). 31. Bank of Augusta v. Earle, 38 U.S. 519 (1839). 32. Hemphill v. Orloff, 277 U.S. 537 (1928). 33. Ward v. Maryland, 79 U.S. 418 (1870). 34. Travis v. Yale and Town Manufacturing Company, 252 U.S. 60 (1920). 35. Toomer v. Witsell, 334 U.S. 385 at 396 (1948). 36. Austin v. New Hampshire, 420 U.S. 656 (1975). 37. Ibid. at 666–67. 38. McCready v. Commonwealth, 94 U.S. 391 at 395–96 (1876). 39. Starns v. Malkerson, 401 U.S. 985 (1971) and Sturgis v. Washington, 414 U.S. 1057 (1973). 40. Baldwin v. Montana Fish & Game Commission, 436 U.S. 371 at 388 (1978). 41. United States Constitution, Art. I, §§2–3.

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42. Dunn v. Blumstein, 405 U.S. 330 at 343–44 (1972), and Baldwin v. Montana Fish & Game Commission, 436 U.S. 371 at 383 (1978). 43. Foley v. Connelie, 435 U.S. 191 at 299–300 (1978), and Ambach v. Norwick, 441 U.S. 68 (1979). 44. For examples, consult Wilkins v. State, 113 Ind. 514 (1887), and Ex Parte Spinney, 10 Nev. 232 (1875). 45. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 46. Ibid. at 285. 47. Virginia v. Tennessee, 148 U.S. 503 at 520 (1893). 48. Dixie Wholesale Grocery, Incorporated v. Martin, 278 KY 705, 129 S.W.2d 181 (1939) and 308 U.S. 609 (1939). 49. New York v. New Jersey, 118 S.Ct. 1726 at 1750–751 (1998). 50. James A. Scott, The Law of Interstate Rendition Erroneously Referred to as Interstate Extradition: A Treatise (Chicago: Sherman Hight, Publisher, 1917), pp. 180–81. 51. Rendition Act of 1793, 1 Stat. 302, 18 U.S.C. §3182. 52. Kentucky v. Dennison, 24 How. 66 at 103 (1861). 53. Ibid. at 107. 54. Puerto Rico v. Branstad, 483 U.S. 219 at 227 (1987). 55. Missouri v. Illinois, 200 U.S. 496 (1905). 56. United States Supreme Court Rule 17. 57. See, for example, Arizona v. New Mexico, 425 U.S. 794 (1978). 58. Pennsylvania v. New Jersey, 426 U.S. 660 at 666 (1976). 59. Ibid. at 665. 60. Massachusetts v. Missouri, 308 U.S. 1 at 15 (1940). 61. California v. Texas, 454 U.S. 886 (1981). 62. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493 at 499 (1971). 63. For an example, see California v. West Virginia, 454 U.S. 1027 (1981). 64. Arizona v. New Mexico, 425 U.S. 794 (1976).

Chapter 3

THE COMPACTING PROCESS

Section 10 of Article I of the U.S. Constitution authorizes each state to enter into an “agreement or compact with another state” with the consent of Congress, but contains no reference to whether the United States may be a party to such a compact. James Madison in The Federalist No. 44 quoted the last two clauses of the section that include the compact provision, focused on the prohibition of state import and export duties, and added “[the] remaining particulars of this clause fall within reasons which are either so obvious, or have been so fully developed, that they may be passed over without remark.”1 The section does not specify the process by which states may enter into compacts or make a distinction between an agreement and a compact. It appears the two terms were used interchangeably and could include agreements and compacts entered into by either state legislatures or state administrative officers. Chief Justice Roger Taney of the U.S. Supreme Court in 1840 concluded the term “agreement” referred to a verbal understanding.2 The court in 1893 commented on the two terms as follows: Compacts or agreements—and we do not perceive any difference in the meaning, except that the word “compact” is generally used with reference to more formal and serious engagements than is usually implied in the term “agreement”—cover all stipulations affecting the conduct or claims of the parties.3

It has become established, however, that agreements entered into by administrators of sister states do not require the consent of Congress to be effective. The progenitors of the interstate compact were court decisions and nine

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negotiated agreements to settle boundary disputes between British colonies submitted to the Crown for its approval.4 Experience with intercolony agreements induced the Second Continental Congress in 1777 to include authorization for interstate compacts in the Articles of Confederation and Perpetual Union. Article VI stipulated: “No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is entered into, and how long it shall continue.” The required congressional consent was designed to prevent states from entering into a multilateral agreement that might be directed against other states or the confederacy. The unicameral Congress gave its consent to three interstate boundary compacts and the first regulatory one—a 1785 compact between Maryland and Virginia—that established fishing and navigation rules on the Chesapeake Bay and the Potomac River (see Chapter 4).5 Based upon experience with intercolony agreements under British rule and interstate agreements under the Articles, and boundary disputes raging in 1787, it is not surprising the drafters of the U.S. Constitution included a provision authorizing such agreements. In common with Article VI of the Articles of Confederation and Perpetual Union, section 10 of Article I of the Constitution absolutely forbids a state to “enter into any treaty, alliance, or confederation”; states, however, may enter into an agreement or compact with a foreign power with the consent of Congress. A compact approved by Congress is protected by the Constitution’s contract clause (Art. I, §10) that forbids a state legislature to enact a “law impairing the obligation of contracts.” The U.S. Supreme Court in 1959 specifically opined “[a] compact is, after all, a contract.”6 There is no specific constitutional prohibition of congressional impairment of contracts. A compact is similar to a treaty in that provisions of the former supersede conflicting state laws. In other words, a state surrenders part of its sovereign authority by entering into a compact, except advisory ones, with a sister state(s). Experience reveals a compact is a versatile mechanism employable to harmonize the provision of state services and regulatory policies, construct facilities, and establish new regional governmental entities, including an interstate city. No such city has been created to date, but two interstate school districts, each involving New Hampshire and Vermont towns, have been established by compacts (see Chapter 4). Local governments often enter into mutual assistance agreements and occasionally the concerned local governments, acting through their state governments, will seek congressional consent for a mutual assistance compact. In 1996, for example, Congress gave its consent to a mutual aid compact entered into by the city of Bristol, Virginia and the city of Bristol, Tennessee.7 The compact device also permits states to exercise their reserved powers,

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with congressional consent if the subject matter is political in nature, to solve regional and national problems without the need for direct congressional action to solve the problems. Enactment of an identical compact by the fifty state legislatures establishes the equivalent of a conventional uniform state law that does not require the consent of Congress. In other words, the state legislature in each state is free to enact an identical bill into law, thereby establishing a common policy throughout the fifty states and negating the need for a congressional statute on the subject. One compact has been enacted by all states: Interstate Compact on Juveniles. In addition, the Interstate Compact for Education has been enacted by the legislatures of forty-eight states, the District of Columbia, American Somoa, Puerto Rico, and the Virgin Islands. And the Interstate Compact for Supervision of Parolees and Probationers has been adopted by forty-seven states and the District of Columbia. Determining the precise number of compacts in effect is difficult. Congressional willingness to grant consent-in-advance to compacts has increased in recent decades and a number of proposed concordats are not entered into by at least two concerned state legislatures. A 1998 Council of State Governments directory lists 25 boundary compacts, 192 other “active” interstate compacts, and 51 “dormant or defunct” ones.8 The Maine– New Hampshire Interstate School District Compact listed as “active,” but has not been implemented. Although the New England Truckers Compact is listed as “active,” the directory notes the compact has been superseded by the New England Truck Permit Agreement for Oversize, Non-Divisible, Interstate Loads. Ann O’M Bowman reported in 2001 that 38 of the 192 compacts, excluding boundary ones, listed in the directory had been enacted by only one state legislature and hence were not in effect.9 In addition, the directory does not include all boundary compacts granted congressional consent. Only three pre-1943 such compacts are listed. Felix Frankfurter and James M. Landis identified a total of thirtynine compacts consented to by Congress under the U.S. Constitution in the period ending in 1925.10 All but six established state boundaries. They reported the concerned state legislatures failed to implement the 1910 Missouri-Kansas and Oregon-Washington boundary compacts. They also noted no action was taken by state legislatures relative to implementation of the Arkansas, Louisiana, and Texas Compact of 1861 providing for removal of raft from the Red River, the four state Lake Michigan Compact of 1910 relating to criminal jurisdiction on the waters of the lake, and the Forestry and Water Conservation Compact of 1911 (Weeks Act) containing the first grant of consent-in-advance. The directory does not include the 1989 South Dakota–Nebraska Boundary Compact and possibly other boundary compacts.11 At least four compacts have been entered into subsequent to publication of the directory in 1998—the Adult Offender Supervision Compact and three boundary compacts.12

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An examination of the consolidated laws of a state reveals the number and types of interstate compacts enacted by the state legislature, but does not ensure all are active. Bowman determined in 2001 that the typical state belongs to 23.4 compacts and the range of compacts varies from 14.0 in South Dakota and Wisconsin to 32.0 in Colorado, New Hampshire, and Vermont.13 Compacts entered into by New Hampshire involve most of the alphabet and include, among others, Adoption Assistance for Hard to Place Children, Buses, Civil Defense, Detainers, Education, Interpleader, Libraries, Lotteries, Medical Needs, Mental Health, Motor Vehicles, Pest Control, Public Water Supply, Radioactive Waste Management, Sewage, Solid Waste, State Police, Taxation, Trucks, and Water Pollution Control. Most compacts entered into by New Hampshire are regional ones such as the Atlantic States Marine Fisheries, Connecticut River Flood Control, Corrections, Northeast Dairy, Forest Fire Protection, Higher Education, LowLevel Radioactive Waste, Oceanography, Regional Planning, Solid Waste, and Truckers compacts. A compact may involve parts or all of two states or as many as fifty states, the Commonwealth of Puerto Rico, the District of Columbia, U.S. territories, and Canadian provinces. The subject matter of compacts is extremely diverse today, but the fifteen compacts enacted by states and consented to by Congress under the U.S. Constitution prior to 1900 dealt only with the establishment of state boundary lines with the exception of the 1825 one incorporating the Chesapeake and Ohio Canal Company.14 Boundary compacts continue to be utilized to avoid the need for litigation. Congress in 1999, for example, gave its consent to a Missouri-Nebraska Compact establishing “an identifiable compromise boundary between the State of Missouri and the State of Nebraska for the entire distance” along the Missouri River.15 In 2000, Congress granted its consent to a similar compact entered into by Okalahoma and Texas establishing a new boundary along the vegetation line on the south bank of the Red River except in the Texoma area.16 Boundary compacts obviously do not require continuous administrative action. Other compacts establish a public authority, commonly termed a board or commission, to execute compact provisions or are administered by regular departments and agencies of the involved states (see Chapters 4 and 5). The Port of New York Authority Compact, entered into by New Jersey and New York with the consent of Congress in 1921, was the first one to establish a permanent administrative body. COMPACT NEGOTIATIONS AND RATIFICATION The U.S. Constitution is silent relative to the manner of compact negotiation, and Congress has not enacted a statute specifying procedures that must be followed by quasi-sovereign states in entering into compacts. The

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compacting process, particularly negotiations, is somewhat similar to the process employed by a nation-state desiring to enter into a treaty with another nation-state(s). With respect to the U.S. Constitution, only the president has authority to negotiate a treaty with another nation. The governor of a state, on the other hand, plays no direct role in the process of negotiating a compact other than appointing commissioners to draft a compact on a specified subject in conjunction with commissioners of other states. A second major distinction is the ability of Congress to enact a statute conflicting with a treaty whereas a state legislature lacks the authority to enact a statute conflicting with provisions of an interstate compact. A third distinction relates to enforcement. A compact is a contract enforceable by courts whereas the procedure for enforcement of a treaty is specified therein. Successful use of the interstate compact typically involves (1) negotiators reaching an agreement on a tentative compact, (2) enactment of the compact by the concerned state legislatures, and (3) and consent of Congress if the compact is political in nature. These steps have not proven to be empty formalisms. On the contrary, for even the relatively simple compacts established or proposed in the past, each step has proved to be a significant, sometimes insurmountable obstacle. Members of joint commissions, appointed by their respective governors, negotiated all interstate compacts until 1930. Negotiation of river basin compacts, such as the Republican River Compact, included a representative of the United States appointed by the president. Frederick L. Zimmermann and Mitchell Wendell in 1976 noted the joint commission method has several advantages, particularly “where there is a presumption of permanence approaching perpetuity.”17 They cited as advantages the prestige of the commission, staff assistance, and “continuity of effort and negotiating personnel which may be desirable over a protracted period of negotiation.”18 The joint commission method continues to be used and has been supplemented by other methods. The Interstate Compact on Parolees and Probationers was drafted by the Interstate Commission on Crime composed of attorneys general and other state officers. Similarly, the Southern Regional Education Compact was the product of the work of southern governors. Ten low-level radioactive waste compacts were promoted by the National Conference of State Legislatures in response to congressional enactment of the Low-Level Radioactive Waste Policy Act of 1980 mandating states to assume responsibility for waste disposal.19 And one state legislature may enact a statute that could serve as a prospective interstate compact and invite other state legislatures to join by enacting identical statutes. Negotiators may experience little difficulty in drafting a compact if it relates to a problem susceptible to a relatively simple solution. A regional higher education compact, for example, is a common sense approach to ensuring expensive post-graduate professional educational programs will

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be available to residents of compacting states. Numerous proposed compacts, however, relate to extremely divisive problems, such as apportionment of waters of a major river basin, and usually involve extended negotiations. Important administrative, financial, substantive, and technical issues often are raised during negotiations on a major proposed compact, and agreements must be reached on resolving each issue, an extremely difficult task, before the compact can be submitted to the concerned state legislatures. The degree of difficulty in reaching unanimity among negotiators on a proposed compact often is related directly to the number of involved states with a small number of states often able to reach an agreement in a shorter period of time than a large number of states. A bilateral interstate compact, however, may prove to be exceptionally difficult to negotiate as illustrated by the twelve years of negotiations required to gain approval of the two state legislatures for the California-Nevada Water Apportionment Interstate Compact. In other instances, negotiations have been broken off prior to the reaching of an agreement on a compact. The proposed Potomac River Compact—Maryland, Virginia, and the District of Columbia—was abandoned in 1976 after negotiators spent ten years attempting to reach agreements on its various provisions. Relative to the Delaware River basin, two proposed compacts failed to gain approval in the 1920s, and a third one was bottled up in the 1950s in a Pennsylvania Senate Committee after approval by the House of Representatives and enactment by the other concerned state legislatures. If a proposed compact creates only a study commission charged with developing recommendations to solve a specific problem or an operating commission to be financed entirely by user fees, the financial commitment of each compacting state will be very limited. On the other hand, a proposed compact provision relating to a long-term commitment of funds by member states will tend to make negotiators cautious. In other instances, negotiators may be informed by leaders of their respective state legislature the compact will not be enacted into law unless the compact contains provisions for gubernatorial or legislative oversight. For example, Article X of the Port Authority of New York and New Jersey Compact of 1921 directs the authority to submit a comprehensive plan for its activities to the two state legislatures for approval prior to its implementation. Article XVI of this compact authorizes the governor of each state to veto any action taken by the commissioners of the Port Authority. In 1975, Governor Brendan Byrne of New Jersey vetoed a number of actions taken by Port Authority Commissioners to pressure them to develop a public transit aid plan acceptable to him and to roll back the May 1975 increase in bridge and tunnel tolls from one dollar and fifty cents to one dollar. More recently, the threat by one or both governors to veto a decision of the commissioners has been sufficient to convince them to rescind a decision, such as one

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increasing tolls on the George Washington Bridge and Hudson River tunnels (see Chapter 4).20 Fears such political checks on the activities of the compact agency could be used to impair its functioning or injure other member states provide additional impetus for complex and prolonged negotiations. Furthermore, negotiators may be charged with special instructions to safeguard their states’ political interests. Representatives of federal departments and agencies may participate in compact negotiations at the invitation of states, but such participation has been limited to date. In contrast, Congress in authorizing specified states to negotiate a water allocation compact, subject to subsequent consideration by Congress, has required participation by federal officers. Since the Potomac River Compact involves the District of Columbia, federal representatives participated in the negotiation of the compact, and the United States and the district are represented on the compact’s commission. In 1955, the U.S. Bureau of the Budget (now Office of Budget and Management) issued a Guide to Federal Participation in Interstate Compact Negotiations.21 Zimmermann and Wendell explained in 1976 federal participation provides states “with a friend at court at a high level who understands their situation and can present their case.”22 The executive director of the Northeast Dairy Compact Commission in 2001 stated proponents of the compact should have invited representatives of concerned federal departments and agencies to participate in the negotiations leading to the drafting of the compact.23 As one would anticipate, many issues debated by compact negotiators are redebated when the proposed compact is submitted to each concerned state legislature. If the negotiators failed to keep in close contact with legislative leaders and/or the governor, they may discover their efforts came to naught with the rejection of the proposed compact by the state legislature or veto of the compact act by the governor. In other instances, the negotiators may be directed to renegotiate contentious issues. Because of the urgent need for action demonstrated by the inadequacy of the Port of New York during World War I, the New Jersey and New York State Legislatures in 1921 enacted identical statutes stipulating the proposed Port of New York Authority compact would become effective “when signed and sealed by the Commissioners of each State as hereinbefore provided and the Attorney General of the State of New York and the Attorney General of New Jersey.”24 Article VIII(C) of the Compact for Education stipulates it may be adopted “either by enactment thereof or by adherence thereto by the Governor; provided that in the absence of enactment, adherence by the Governor shall be sufficient to make his state a party only until December 31, 1967.” In addition, the Kansas governor authorized participation in the Interstate Compact on Parole for a period of time in the absence of enactment of the compact by the state legislature.25 Political concerns can delay and complicate establishment of a compact

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in other ways. Obtaining approval by the state legislatures can be a lengthy process in part because of the need for both houses of each concerned state legislature to approve a bill identical to statutes enacted by other party state legislatures. History is replete with examples of long delays prior to the enactment of an interstate compact by concerned state legislatures. The Atlantic States Marine Fisheries Compact, effective in 1942, required five years to secure the necessary approvals. The Great Lakes Basin Compact was ratified in 1955 by Illinois, Indiana, Michigan, Minnesota, and Wisconsin and in 1956 by Pennsylvania, but it was not ratified by New York until 1960 and by Ohio until 1963. The expenditure of large amounts of time does not always pay off, for states repeatedly have set out to establish a compact only to fail after years of effort. A compact enacted by two or more state legislatures, of course, is subject to a gubernatorial veto. The Vermont General Assembly enacted the New England Water Pollution Compact, but it was vetoed by the governor on the ground the compact did not contain a provision for the abatement of existing pollution. It also is important to note a compact may be selfexecuting after signing of the enabling bill by the party state governors or may require execution by the governors. The Interstate Compact for the Supervision of Parolees was enacted by the 1936 New York State Legislature as a non–self-executing compact, but was not executed for eight years because Governor Herbert H. Lehman refused to execute it. Execution of a compact also may be delayed or prevented if one or more of the concerned states make participation contingent upon specified states enacting the compact as illustrated by the Ohio River Valley Sanitation Compact. The state legislatures or the compact can make its execution conditional upon Congress initiating specific actions. The Colorado, Kansas, and Nebraska State Legislatures enacted the Republican River Compact that includes Article XI, containing the following conditions:

(a) Any beneficial consumptive uses by the United States . . . within a state, of the waters allocated by this execution of the compact upon Congress agreeing in granting consent to the following: compact, shall be made within the allocations hereinabove made for use in that State and shall be taken into account in determining the extent of use within that State. (b) The United States . . . in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over, and to the waters of the Basin shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial consumptive use of the waters within the Basin is of paramount importance to the development of the Basin; and no exercise of such power or right thereby that would interfere with the full beneficial consumptive use of the waters within the Basin shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state official charged with the administration of

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this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes. (c) The United States . . . will recognize any established use, for domestic and irrigation purposes of the waters allocated by this compact which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate State and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment.

Congress in 1943 accepted and incorporated the conditions in granting consent to the compact.26 Similarly, South Dakota and Wyoming negotiated the Belle Fourche River Compact stipulating its execution was dependent upon Congress including three conditions in its consent.27 Even when Congress gives its consent, its action can be slow. The Susquehanna River Basin Compact was approved by Maryland and New York in 1967 and by Pennsylvania in 1968, yet Congress did not enact the Compact until 1970. Similarly, the Washington Metropolitan Area Transit Regulation Compact was approved by Maryland, Virginia, and the District of Columbia in 1958, but did not receive the consent of Congress until 1960. The U.S. members of the International Board of Inquiry for the Great Lakes Fisheries issued in 1943 a supplemental report reviewing the obstacles to obtaining the necessary approvals for an interstate compact.28 The members concluded “[t]he international treaty . . . appeared to be the only practical device available by means of which effective and uniform regulations for the Great Lakes fisheries could be established on a lake and their uniform enforcement assured.”29 Evidence to date supports the 1976 conclusion of Zimmermann and Wendell that “there are weaknesses and difficulties in the use of the interstate compact. The most obvious difficulty is the necessity for securing agreement among several jurisdictions.”30 Similarly, Roscoe C. Martin et al. observed “the ratification of a compact change by two or more state legislatures is likely to be a lengthy process at best; at worst it may constitute an impossible obstacle.”31 CONSENT OF CONGRESS The drafters of the U.S. Constitution were content with Article VI of the Articles of Confederation and Perpetual Union requiring congressional consent for states to enter into compacts with sister states and foreign nations, and incorporated the substance of the article into the proposed U.S. Constitution as part of section 10 of Article I. The required consent is designed to safeguard the interests of the national government and states not party to the compact. Chief Justice John Marshall of the U.S. Supreme Court in

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1833 explained: “If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution.”32 In consequence, the compact clause can be utilized by opponents of a compact, in a manner similar to the dormant commerce clause, to challenge the constitutionality of a compact that has not received congressional consent. Types of Congressional Consent The nature of and procedure for granting congressional consent to compacts entered into by two or more states are not specified in the U.S. Constitution which places no limitation on the duration of consent. The U.S. Supreme Court in Green v. Biddle in 1823 noted this fact in a case involving a congressional statute referring to the Virginia-Kentucky Interstate Compact of 1789 and granting consent to the admission of Kentucky to the union.33 The compact was challenged by Kentucky on the ground of lack of congressional consent. The New Hampshire Supreme Court in 1845 rejected the argument that an 1819 New Hampshire statute and an 1821 Maine statute authorizing construction of a bridge over navigable waters (the Piscataqua River) without congressional consent violated Article I, section 10 of the U.S. Constitution.34 The court specifically noted there is no constitutional provision precluding each of the two states from granting authority for the erection of a bridge to the middle of the river. On the other hand, the U.S. Supreme Court in Florida v. Georgia in 1854 opined a boundary compact enacted by the two states would be invalid unless Congress granted its consent.35 In 1893, the court ruled in Virginia v. Tennessee congressional consent is required only for a compact tending to increase “the political power or influence” of the party states and to encroach “upon the full and free exercise of federal authority.”36 The two states reached a boundary agreement early in the nineteenth century but had not obtained congressional consent. Congressional reliance upon terms of the compact for judicial and revenue purposes, in the judgment of the court, implied the grant of consent. In other words, a compact can be approved by Congress by implication as well as expressed consent. The court provided the following example to illustrate the distinction between a political and a nonpolitical compact: If . . . Virginia should come into possession and ownership of a small parcel of land in New York which the latter State might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter State to obtain the consent of Congress before it would make a valid agreement with Virginia for the purchase of the land.37

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The United States Steel Corporation challenged the constitutionality of the Multistate Tax Compact alleging it had not been granted consent by Congress. In 1978, the U.S. Supreme Court upheld the constitutionality of the compact by declaring it did not “authorize the member states to exercise any powers they could not exercise in its absence.”38 Congress in 1949 granted its consent to the Northeastern Interstate Forest Fire Compact, the first compact to provide a contiguous Canadian province may become a member of the compact with the consent of Congress.39 Consent to a compact has been granted by Congress both prior to (permissive) and subsequent to (ratifying) the enactment of a compact by the concerned state legislatures. Congress is free to grant its consent in advance for each compact entered into by states or blanket approval in advance for all compacts relating to a specific subject. In 1911, unrestricted congressional consent was granted in advance to interstate compacts formed “for the purpose of conserving the forests and water supply.”40 Similarly, Congress in the Crime Control Consent Act of 1934 and the Tobacco Control Act of 1936, respectively, authorized states to enter into interstate crime control concordats and tobacco producing states to enter into interstate compacts “to enable growers to receive a fair price for such tobacco.”41 Other examples of congressional consent in advance include development and operation of airports, and disposal of low-level radioactive waste.42 Relative to the latter type of compact, state legislatures that have utilized consent in advance to enter into a compact have been required to submit it to Congress for its approval. Congress also has granted its consent to a compact enacted by two or more states and added a consent in advance provision for other state legislatures to join the compact by enacting it.43 Although most compacts are submitted to Congress for approval, a few compacts have been executed without such approval. The Southern Regional Education Compact, for example, received the consent of the U.S. House of Representatives, but did not receive the consent of the Senate apparently because of the belief consent was not required for what clearly is a nonpolitical compact.44 Congress in 1996 granted consent to the Emergency Management Assistance Compact and specifically authorized member states to enter into supplementary agreements with other states: Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this compact contains elements of a broad base common to all states, and nothing herein shall preclude any state entering into a supplementary agreement with another state or affect any other agreements already in force between states.45

On occasion, Congress has included permission and ratification in the same statute. In 1921, for example, Congress ratified a Minnesota–South

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Dakota compact relating to criminal jurisdiction over boundary waters and simultaneously granted permission in advance for a similar compact between Iowa, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin.46 A unique type of congressional consent in 1951 authorized states to enter into interstate civil defense compacts that must be filed with the U.S. House of Representatives and Senate and are deemed to have the consent of Congress unless disapproved by a concurrent resolution within sixty days.47 It is not uncommon for nonpolitical compacts to be submitted to Congress since the 1921 Port of New York Authority Compact was so submitted because bond counsels suggested congressional consent would make the authority’s bonds more appealing to investors who otherwise might be hesitant to purchase bonds issued by an unusual organization—an interstate public authority. Consent was granted by Congress and the authority today has a stellar credit rating. The Palisades Interstate Park Agreement of 1900, between New Jersey and New York, is an outstanding example of an interstate compact not submitted to Congress. In general, Congress has placed no time limit on its grant of consent to a compact. The Interstate Oil and Gas Compact of 1935 and the Atlantic States Marine Fisheries Compact were subject to sunset provisions, but Congress subsequently removed the restrictions (see Chapter 4).48 Compacts formed under the Low-Level Radioactive Waste Policy Act of 1980 are subject to a five-year approval provision.49 Conditions may be imposed by Congress in granting its consent as Chief Justice Charles Evans Hughes wrote in 1937.50 Congress usually reserves the right to “alter, amend, or repeal” its consent to a compact and always reserves its authority over navigable waters. The consent resolution also may limit a compact commission to enumerated functions and specifically require congressional consent to undertake a new function.51 The Boulder Canyon Project Act of 1928 granted consent to the Colorado River Compact subject to stipulated conditions, including approval of the modified compact by California and five of the other six involved states.52 Consent was granted to the Wabash Valley Compact in 1959 and the Washington Metropolitan Area Transit Regulation Compact in 1960 with the proviso that each compact authority published specified data and information.53 The most recent court suit involving attached conditions was Tobin v. United States in which the U.S. Court of Appeals for the District of Columbia Circuit in 1962 upheld the authority of Congress to attach conditions to compacts and the U.S. Supreme Court refused to review the decision.54 Is there a need for Congress to consider all interstate compacts? In 1976, Zimmermann and Wendell answered this question in the negative.

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Consent bills for interstate compacts dealing with issues in the realm of state activity, law, and administration, with interstate jurisdictional problems and with the settlement of interstate equities, normally serve only to clutter congressional calendars and complicate and obstruct interstate cooperation.55

A congressional act giving consent to an interstate compact is subject to a possible veto by the president. The failure of Congress in particular to endorse proposed compacts in a few instances—particularly the Connecticut River and Merrimack River flood control compacts in the 1930s—has been attributed to the threat of a presidential veto. President Franklin D. Roosevelt in 1939 rejected a bill granting consent in advance to states to enter into compacts relating to Atlantic Ocean fishing on the ground the subjects of the compact were “described only in broad outline.”56 Two years later, President Roosevelt disallowed the Republican River Compact, but approved in 1943 a modified compact.57 Effects of Congressional Consent Does the grant of congressional consent to an interstate compact convert it into federal law? The view of the U.S. Supreme Court on this subject has changed. In 1938, the court opined in Hinderlider v. La Plata River and Cherry Creek Ditch Company such consent does not make a compact the equivalent to a United States treaty or statute.58 Two years later, the court in Delaware River Joint Toll Bridge Commission v. Colburn modified the 1938 ruling by holding a compact approved by Congress that involves “a federal ‘title, right, privilege, or immunity’ which when explicitly identified and claimed in a state court may be reviewed here on certiorari.”59 The court in 1981 in Cuyler v. Adams issued a momentous decision opining congressional consent makes a compact federal law in addition to state law.60 United States courts since 1874 had been required to apply the interpretation of a concerned state law by the highest court in the state.61 The reversal of precedent allowed the court to interpret the concerned Pennsylvania statute and disregard its interpretation by the Pennsylvania Supreme Court. Is a public authority created by an interstate compact approved by Congress cloaked with immunity from suit in a U.S. court granted states by the Eleventh Amendment to the U.S. Constitution? The U.S. Supreme Court, by a five to four vote, ruled in the negative by explaining the Port Authority Trans-Hudson Corporation is a self-financing entity and subjecting it to suit in the U.S. District Court does not place a burden upon the treasury of either New Jersey or New York.62 Five state legislatures, including the Nebraska State Legislature, enacted the Central Low-Level Radioactive Waste Compact that received the con-

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sent of Congress. The compact commission selected Nebraska as the site for a waste disposal facility and Governor Kay Orr said the state was not pleased with the decision, but would honor its commitment under the compact. Subsequently, two Nebraska state departments required the contractor to provide answers to 700 questions and a notice of intent to deny the necessary license was issued in January 1993 by the Department of Environmental Quality on the grounds of drainage problems and the site was a wetland. Litigation followed and Nebraska in 1998 denied the contractor’s amended license application. Waste generators and the contractor filed a suit in the U.S. District Court for the District of Nebraska, alleging the state deliberately delayed review of the license application for eight years and always intended to deny it. The court in 1999 opined Nebraska waived its Eleventh Amendment immunity when it joined the compact.63 In 2001, the U.S. Court of Appeals for the Eighth Circuit affirmed the lower court’s decision.64 Does the grant of congressional consent to an interstate compact invalidate other federal statutes containing inconsistent provisions? Courts could interpret such consent as repealing, relative to the interstate compact, conflicting federal statutes. What effect does a new federal statute with conflicting provisions have on an interstate compact previously approved by Congress? It is apparent the consent would be repealed relative to the conflicting provisions with the exception of any vested rights protected by the Fifth Amendment to the U.S. Constitution. Enforcement of compacts usually is left to courts, but the granting of consent suggests Congress may enforce compact provisions. The validity of a compact may be challenged by an individual or a state in a state or U.S. court. Similarly, an individual or a state may bring suit to have provisions of a compact enforced. The Eleventh Amendment forbids a U.S. court to consider a suit in law or equity against a state brought by a citizen of another state or a foreign nation. Nevertheless, a citizen can challenge a compact or its execution in a state or federal court against an individual or in a proceeding to prevent a public officer from enforcing a compact.65 If brought in a state court, the suit could be removed to the U.S. District Court under provisions of the Removal of Causes Act of 1920 on the ground the state court “might conceivably be interested in the outcome of the case.”66 States party to an interstate compact on occasion file a suit in the U.S. Supreme Court to interpret one or more compact provisions. Kansas, for example, filed a suit against Colorado in an attempt to resolve disputes pertaining to the Arkansas River Compact. The court in 1995 ruled unanimously that (1) Kansas failed to supply evidence Colorado had not adhered to reservoir operating principles that allegedly result in the “material depletion” of river flow, (2) Colorado’s winter water storage program did not deplete materially usable state line river flows in violation of the com-

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pact, (3) the compact’s article permitting beneficial development included replacement of centrifugal with turbine pumps and increased pumping wells existing prior to the compact, and (4) the special master placed reasonable reliance upon reports issued by the U.S. Geological Survey and the Colorado State Legislature in reaching his conclusion relative to the largest amount of pre-compact pumping in Colorado.67 Kansas continued its disagreement with Colorado relative to the Arkansas River Compact by filing another suit against Colorado. In 2001, the U.S. Supreme Court turned down Colorado’s contention a special master’s recommendation of a damages award for Colorado’s violation of the compact was barred by the Eleventh Amendment to the U.S. Constitution on the ground the damages were losses suffered by individual Kansas farmers.68 COMPACT AMENDMENT AND TERMINATION Experience occasionally reveals the need for a compact amendment(s) if goals are to be achieved. Not surprisingly, proposed compact amendments often must pass through what can be termed the hazardous process of obtaining their enactment by each state legislature, approval of each governor, consent of Congress, and approval of the president if the original compact received such approval. Congressional consent can be delayed or denied if a member of Congress from the area of the compact objects as illustrated by the experience of the New Jersey State Legislature and the New York State Legislature which enacted an amendment to the Port Authority of New York and New Jersey Compact, signed by the two governors, allowing the authority to initiate industrial development projects. U.S. Representative Elizabeth Holtzman of New York in 1967 objected to the amendment on the ground the authority had not solved the transportation problems of the Port of New York and argued the authority should devote its resources to construction of a railroad tunnel under the Hudson River. Subsequently, she withdrew her objection when the authority agreed to finance a study of the economic feasibility of constructing such a tunnel. The study concluded such a tunnel would not be economically viable. The U.S. Constitution (Art. I, §10) delegates authority to Congress to revise state statutes levying import and export duties, but fails to contain similar authority relative to interstate compacts. Congress, however, withdrew its consent to a Kentucky-Pennsylvania interstate compact stipulating the Ohio River would be kept free of obstructions. In 1855, the U.S. Supreme Court in Pennsylvania v. Wheeling and Belmont Bridge Company opined the statute was constitutional under the supremacy of the laws clause of Article VI and a compact approved by Congress does not restrict its power to regulate an interstate compact.69 A similar opinion was issued

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by the court in 1917 in Louisville Bridge Company v. United States holding Congress may amend a compact in the absence of a compact provision specifically reserving to Congress authority to alter, amend, or repeal the compact.70 It is apparent a congressional statute terminating a compact is not subject to the Fifth Amendment’s due process of law guarantee since it extends protection only to persons. Interstate boundary compacts cannot be terminated. Other compacts typically contain a provision relating to termination. Article X of the Colorado River Compact, for example, authorizes termination only by agreement of all member states. A number of compacts stipulate a state desiring to terminate the compact must provide advanced notice, typically sixty days, of its withdrawal decision. Article VIII of the Interstate Mining Compact, however, does not permit a state to withdraw until one year after the governor has notified the governors of the other compacting states of the proposed withdrawal. The Delaware River Basin Compact (Art. 1, §1.6(a)) contains a provision stipulating: The duration of this compact shall be for an initial period of 100 years from its effective date, and it shall be continued for additional periods of 100 years if not later than 20 years nor sooner than 25 years prior to the termination of the initial period or any succeeding period none of the signatory states, by authority of an act of its legislature, notified the commission of intention to terminate the compact at the end of the then current 100 year period.

The Susquehanna River Basin Compact contains a similar 100-year provision. The Florida State Legislature on several occasions withdrew from and subsequently rejoined the Atlantic States Marine Fisheries Compact, and the 1995 Virginia General Assembly enacted a statute withdrawing from the compact on the ground fishing quotas for Virginia were too low.71 And Maryland withdrew from the Interstate Bus Motor Fuel Tax Compact in 1967 and the National Guard Mutual Assistance Compact in 1981.72 International law makes no provision for citizens of nations signatory to a treaty to be involved in its termination. In 1838, the U.S. Supreme Court applied this principle in Georgetown v. Alexander Canal Company by opining citizens whose rights would be affected adversely by a compact are not parties to a compact and hence are not involved directly in terminating a compact.73 TYPES OF COMPACTS Interstate compacts can be classified as bilateral, multilateral, sectional, and national in terms of membership. Twenty-five of the thirty-two compacts entered into by sister states with congressional consent between 1789

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and 1920 settled boundary disputes.74 States entered into approximately 125 interstate compacts between 1920 and 1969. Patricia S. Florestano identified nineteen new compacts during the 1970s and twenty-two new compacts in the period 1980 to 1992.75 Florestano also reported (1) the number of border compacts had declined, (2) the number of regional compacts increased, (3) most post-1970 compacts established commissions or authorities, (4) a sharp decrease in the number of boundary compacts, and (5) a sharp increase in environmental, river basin, and transportation compacts.76 A few compacts seek to promote inter-local governmental cooperation in a two-state area as illustrated by two New Hampshire–Vermont interstate school district compacts (see Chapter 4). The decline in the number of new regulatory interstate compacts since 1965 is attributable to Congress exercising more frequently its powers of preemption to remove regulatory authority from states.77 Governor Nelson A. Rockefeller of New York in the mid-1960s promoted the Mid-Atlantic States Air Pollution Control Compact that was entered into by Connecticut, New Jersey, and New York. The compact did not receive the consent of Congress because it followed President Lyndon B. Johnson’s advice to enact the Air Quality Act of 1967 preempting state responsibility for air pollution abatement.78 Compacts were administered by member state departments (see Chapter 5) until 1921 when the Port of New York Compact, entered into by New Jersey and New York, created a public authority governed by six commissioners.79 Three members are appointed by the governor of each state, with consent of the respective senate, to implement the compact.

Types There are twenty-five types of compacts administered by a commission (see Chapter 4) or by departments and agencies of member states (see Chapter 5). An advisory compact establishes a commission, such as the Potomac River Compact, authorized only to conduct studies and to develop recommendations to solve interstate problems. There are two agricultural compacts—Compact on Agricultural Grain Marketing and the Northeast Interstate Dairy Compact. Two states may enter into a boundary compact with the consent of Congress that is not subject to termination. Such a compact obviates the need for a trial in the U.S. Supreme Court to establish the official boundaries of two states. Congress in 1990, for example, approved the South Dakota– Nebraska Boundary Compact settling a dispute arising from the Missouri River changing its course.80

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Civil defense compacts date to the post–World War II cold war period when the Soviet Union was viewed as a potential aggressor nation. Crime control and corrections compacts are traceable to 1910 when Congress gave its consent in advance to four states—Illinois, Indiana, Michigan, and Wisconsin—to enter into an agreement with respect to the exercise of jurisdiction “over offenses arising out of the violation of the laws” of these states on Lake Michigan waters.81 One of the best-known related compacts is the Interstate Agreement on Detainers (writs authorizing confinement of individuals) enacted by forty-eight states, Congress, the District of Columbia, Puerto Rico, and the Virgin Islands.82 The agreement facilitates speedy and proper disposition of detainers based on indictments, information, or complaints from party states (see Chapter 5). Congress in 2000 gave its consent to the first cultural compact, entered into by Kansas and Missouri, establishing a metropolitan culture district governed by a commission whose membership is determined by the number of counties that join the district.83 An eligible county is one adjacent to the state line with a population exceeding 300,000 or containing a part of a city with a population exceeding 400,000, or is contiguous to one of the preceding counties. The first education compact pooled the resources of southern states by means of the Southern Regional Education Compact to obviate the need for each state to maintain expensive professional schools. There are two additional compacts of this nature—the New England Higher Education Compact and the Western Regional Education Compact. Furthermore, there are two interstate school districts entered into by New Hampshire and Vermont with each involving towns bordering the Connecticut River (see Chapter 4). The Emergency Management Assistance Compact, consented to by Congress in 1996, is a broad compact effectively replacing the Civil Defense Compact. Energy compacts include the Interstate Compact to Conserve Oil and Gas, Southern States Energy Compact (originally Southern Interstate Nuclear Compact), Midwest Energy Compact, and Western Interstate Energy Compact (originally Western Interstate Nuclear Compact). Facilities compacts provide for the joint construction and operation of physical facilities, most commonly bridges and tunnels. The Port Authority of New York and New Jersey is the largest compact organization and operates the Holland and Lincoln Tunnels, George Washington Bridge, three jetports, industrial development projects, and marine facilities (see Chapter 4). On the other hand, the compact entered into by Maine and New Hampshire in 1937, with congressional consent, is limited to the construction and maintenance of a single bridge over the Piscataqua River.84 The four fisheries compacts are the Atlantic States Marine Fisheries Compact of 1942, Pacific States Marine Fisheries Compact of 1947, Gulf States

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Marine Fisheries Compact of 1949, and Connecticut River Basin Atlantic Salmon Compact of 1983 (see Chapter 4). Flood control compacts relate to the construction of projects to prevent flooding. A 1957 Massachusetts–New Hampshire compact established the Merrimack Valley Flood Control Commission responsible for determining the amount of compensation Massachusetts annually must pay New Hampshire for loss of tax revenue resulting from the construction of flood control projects.85 There are two health compacts: Interstate Compact on Mental Health and New England Compact on Radiological Health Protection. The federal Low-Level Radioactive Waste Policy Act of 1980 promoted the formation of low-level radioactive waste compacts to construct regional waste storage facilities as an alternative to the development of individual storage sites in each state.86 Ten such compacts have been entered into by a total of forty-four states.87 Marketing and development compacts relate to a variety of subjects and include the Agricultural Grain Marketing Compact, Midwest Nuclear Compact promoting use of nuclear energy, Mississippi River Parkway Compact, and two compacts each establishing a bridge commission: Illinois-Missouri Compact and Illinois-Indiana Compact. The objective of each metropolitan problems compact is embodied in its title. The Port of New York Authority [now Port Authority of New York and New Jersey] dates to 1921 and is the first compact of this type. The original mission of the authority was to solve the marine port problems, but its mission has been expanded over the decades to include a commuter railroad, highway bridges and tunnels, jetports, marine facilities, and industrial development programs. The Washington Metropolitan Area Transit Regulation Compact was entered into by the District of Columbia, Maryland, and Virginia and granted congressional consent in 1960. The only military compact is the National Guard Mutual Assistance Compact providing for the sharing of military personnel and equipment. The compact, however, has not received congressional consent. There are twelve motor vehicle compacts including ones relative to driver licenses, nonresident violators, equipment safety, and uniform vehicle registration prorogation (see Chapter 5). Natural resources compacts are designed to settle disputes and promote the conservation and development of resources. Maryland and Virginia, for example, established in 1963 the Potomac River Fisheries Commission to settle a dispute originating in the colonial period when a royal charter made the river a part of Maryland whose oyster fishermen resented Virginia oyster fishermen intruding on Maryland’s waters (see Chapter 4).88 The Connecticut River Basin Atlantic Salmon Restoration Compact serves a different purpose—return of salmon to the river.89

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The Columbia River Gorge Compact and the Palisades Interstate Park Compact are two of the five parks and recreation compacts. Economic interest groups seeking to encourage Congress not to exercise its preemption powers are responsible for the establishment of regulatory compacts. These groups argue a compact obviates the need for national government regulation since formal interstate action has solved a major problem.90 The Atlantic States Marine Fisheries Compact does not grant its commission regulatory enforcement powers, but the commission has obtained indirect regulatory authority by a congressional act. In 1986, the Atlantic Striped Bass Conservation Act was amended to offer each concerned state a choice: comply with the management plan developed by the commission or be subject to a striped bass fishing moratorium imposed by the U.S. Fish and Wildlife Service in the state’s coastal waters.91 The Interstate Sanitation Compact, entered into by New Jersey and New York in 1935 and by Connecticut in 1941, created a commission with power to abate and prevent water pollution in tidal waters of the New York City metropolitan area. Subsequently, the compact was amended to allow the commission to monitor, but not regulate, air quality. The commission (renamed the Interstate Environmental Commission) shares concurrent regulatory authority with the environmental protection departments of the member states (see Chapter 4). The Northeast Interstate Dairy Compact, enacted by each state legislature in New England and consented to by Congress, established a commission with authority to fix the price of fluid or drinking milk above the minimum prices set by the New England federal milk marketing order. There was strong opposition to the compact in Congress by representatives of midwestern and western dairy states who maintained their farmers also were suffering from low milk prices. Wisconsin farmers in particular argue the compact prevents them from selling many of their dairy products in New England. Consumer advocates also opposed the compact because it would increase the retail price of milk, thereby adversely impacting lowincome citizens. River basin compacts originally were entered into in attempts to solve one of the greatest problems in southwestern states—the shortage of water—that led to suits filed by one or more states against other states in the U.S. Supreme Court. The first such compact is the Colorado River Compact of 1922 apportioning waters of the river among member states. More recently, such compacts have been entered into by mid-Atlantic and southern states. Four of these are federal-interstate compacts; that is, Congress entered into a partnership with the concerned states (see Chapter 4). A service compact seeks to eliminate social problems by committing each member state to provide services to legal residents of other member states. The Interstate Compact on the Placement of Children in Interstate Adop-

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tion, for example, facilitates the adoption of children by qualified foster parents in other compact states if there are too few families willing to adopt children in the home state. This compact has fifty members—forty-nine states and the Virgin Islands. In 1934, Congress enacted the Crime Control Consent Act authorizing states to enter into crime control compacts.92 The Interstate Compact for Supervision of Parolees and Probationers is based on this consent and is the first compact joined by all states. Puerto Rico and the Virgin Islands also are members. The importance of this compact is highlighted by the fact that more than 300,000 persons are on parole or probation in states other than the ones in which the crimes were committed. The Juvenile Delinquency Compact and the Corrections Compact authorize the return of delinquents and convicts, respectively, to their states of domicile to serve their sentences. Supporters of these compacts maintain rehabilitation of delinquents and convicts will be promoted if they are incarcerated in close proximity to their families. The levying of income and sales taxes by state legislatures and the growth of interstate commerce encouraged states to enter into tax compacts and/ or administrative agreements. These compacts, illustrated by one entered into by New Jersey and New York, may be limited to the exchange of information on in-state vendors relative to purchases by residents of the other states. The first multistate compact focusing on enforcement of state sales and use taxes is the Great Lakes Interstate Sales Compact. Twenty-one states and the District of Columbia have entered into the Multistate Tax Compact whose objective is to avoid duplicate taxation of individuals and business firms. Twenty-one additional states are considered to be associate members because they participate in and provide funding for one or more programs of the compact commission. Another three states participate in various compact projects. The impetus for the compact was the 1966 decision of the U.S. Supreme Court in Northwestern States Portland Cement Company v. Minnesota opining a state may tax the net income of a foreign corporation (one chartered in a sister state) if the tax is nondiscriminatory and is apportioned equitably on the basis of the corporation’s activities with a nexus to the taxing state.93 Frankfurter and Landis anticipated the possibility of federal-interstate compacts in 1925 when they wrote “the combined legislative powers of Congress and of the several states permit a wide range of permutations and combinations for governmental action. Until very recently these potentialities have been left largely unexplored. . . . Creativeness is called for to devise a great variety of legal alternatives to cope with the diverse forms of interstate interests.”94 They cited uniform laws and reciprocal laws as examples of legal alternatives. Their call for governmental creativeness led in 1961 to the first of six federal-interstate compacts when Congress and four states enacted the Del-

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aware River Basin Compact (see Chapter 4). Of particular importance is the fact Congress enacted the compact into federal law with a provision the United States is a member of the compact that created a commission with a national cochairman and a state cochairman, and other members from the national and member state governments. A period of drought in the 1950s made essential careful management of Delaware River waters by joint action of the national and state governments. The Susquehanna River Basin Compact, effective in 1971, is the third federal-interstate compact and is modeled on the Delaware River Basin Compact. The former has been enacted into law by Congress and the Maryland, New York, and Pennsylvania state legislatures. This compact authorizes the compact commission to establish advisory committees composed of representatives of agriculture; the federal, state, and local governments; labor; and water resource and using agencies. The New York enabling act specifically provides that the mayor of New York City or his designee shall serve as an advisor.95 Federal-interstate compacts also have been employed to promote economic development in large regions of the nation. The first such compact, enacted by Congress and thirteen states in 1965, is the Appalachian Regional Compact that has a commission with a state cochairman appointed by the concerned governors and a federal cochairman appointed by the president with the advice and consent of the U.S. Senate.96 A unique federal-interstate agreement is the product of a 1980 congressional statute granting consent to an agreement entered into by the Bonneville Power Administration, a federal entity, with Idaho, Montana, Oregon, and Washington.97 The term “interstate compact” does not appear in the act, and the agreement was not negotiated by the member states. The compact was drafted by the Pacific Northwest Electric Power and Conservation Planning Council which sent the compact to the states. If they did not enact the compact, a federal council would have been appointed by the U.S. Secretary of the Interior to perform the functions—preparation of a conservation and electric power plan and a program to protect fish and wildlife—of the proposed advisory federal-interstate council. A second unique feature is the provision for membership of a federal agency, and not the U.S. government.98 Congress in 1990 created a similar temporary body—the Northern Forest Lands Council—that was disbanded in 1994.99 The act authorized the governors of Maine, New Hampshire, New York, and Vermont each to appoint four council members charged with developing plans to maintain the “traditional patterns of land ownership and use” of the northern forest. The National Criminal Prevention and Privacy Compact Act, enacted by Congress in 1998, established what may be termed a federal-interstate compact that “organizes an electronic information sharing system among the Federal Government and the States to exchange criminal history records

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for non–criminal justice purposes authorized by Federal or State law, such as background checks for governmental licensing and employment.”100 Federal and state officers were not involved in the negotiations leading to this compact, and the director of the Federal Bureau of Investigation [FBI] designates the federal “Compact Officer.” Article VI established a Compact Council with authority to promulgate rules and procedures pertaining to use of the Interstate Identification Index System for non–criminal justice purposes (see Chapter 6). The council is composed of fifteen members appointed by the attorney general of the United States, including nine members selected from among the officers of member states, two at-large members nominated by the chairman of the Compact Council, and two atlarge members, a member of the FBI’s advisory policy board, and an FBI employee appointed by the FBI director. The compact, according to Article VII, is activated when entered into by two or more states. The Indian Tribe–State Gaming Compact is the newest type of compact and is authorized by the Indian Gaming Regulatory Act of 1988.101 The origin of the act is traceable to the U.S. Supreme Court’s 1987 decision in Cabazon Band of Mission Indians v. California opining a state cannot restrict unduly gaming on Indian lands.102 A sharp increase in gaming on Indian lands was a product of this decision, and led Congress to conclude tribal governments and their members were not profiting from the gaming and organized crime might acquire a stake in such gaming. The 1988 act established three classes of Indian gaming. Class I, primarily social gaming for small prizes, is regulated totally by Indian tribes. Class II gaming—bingo and bingo-type games, and non-banking card games—is regulated by tribes subject to limited oversight by the National Indian Gaming Commission. Class III contains all other types of gaming prohibited in the absence of a tribal-state compact approved by the U.S. secretary of interior. NONCOMPACT REGIONAL AGENCIES Congress in 1879 first recognized the need for a governmental body in a multistate region by establishing the Mississippi River Commission whose original members were three officers of the U.S. Army Corps of Engineers, one member of the U.S. Coast and Geodetic Survey, and three citizen members including two civil engineers.103 Members were nominated by the president subject to the Senate’s advice and consent. The enabling statute directed the commission to deepen channels, improve navigation safety, prevent destructive floods, and promote and facilitate commerce, the postal system, and trade. Congress amended the act in 1906, 1916, 1917, 1922, and 1928. The later act did not change its membership, but converted the commission into an advisory one reporting to the chief of engineers of the Corps of Engi-

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neers. The Water Resources Planning Act of 1965 authorizes the president, at the request of concerned governors, to establish other river basin commissions and three have been created—Upper Mississippi, Great Lakes, and Ohio River.104 The most important and controversial federal regional governmental entity—the Tennessee Valley Authority (TVA)—was created by Congress in 1933 to promote agricultural and industrial development, control floods, and improve navigation on the Tennessee River.105 TVA operates in an area encompassing parts of seven states. Regional political pressure on Congress, however, does not explain the authority’s creation. Observers attributed TVA to populist Senator George Norris of Nebraska who conducted a crusade against the high rates charged by electric utility companies.106 Norris and his supporters argued the cost of TVA-generated electricity would serve as a yardstick by which private power company electric rates could be evaluated. It appeared at the time Congress might create similar nationally controlled bodies in other regions as anti-Depression measures, but did not do so. TVA almost immediately made special efforts to involve state and local governments and citizens in its programs which subsequently were criticized as co-optation.107 The president appoints, with the advice and consent of the Senate, three TVA commissioners for nine-year terms. In 1940, Donald Davidson concluded TVA had achieved considerable success in its flood control, land and forest conservation, and river management activities.108 Although the authority possesses broad powers to develop the river basin, TVA’s efforts have concentrated on dams and channels, fertilizer research, and production of electricity. The failure to launch broad development programs was attributed by Martha Derthick in 1974 to the belief of the first board’s majority that they should not launch such programs.109 In 1999, TVA had operating revenues of $6.595 million and generated more than 148 billion kilowatt-hours of electricity which it distributed primarily as a wholesaler.110 SUMMARY AND CONCLUSIONS The abstract constitutional interstate compact clause has been made concrete by compacts negotiated and entered into by sister states and Canadian provinces in certain instances. The compact device began to reach maturity with the Port of New York Authority Compact in 1921 and subsequent experience reveals the device possesses great potential as a mechanism facilitating regional and national cooperation by states. Nevertheless, the process of negotiating compacts to resolve complex issues typically is very time-consuming and on a number of occasions has not been successful. Negotiations are only the first step in the compacting process and securing

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legislative enactment of a successfully negotiated agreement by all of the concerned states often proves to be difficult. Implementation of a compact in several instances has not occurred because of the failure of the governor to execute the compact or to obtain congressional consent. The prospects for obtaining congressional consent are improved if representatives of federal departments and agencies participated in the negotiations leading to a compact as they are apt to be advocates of the granting of consent by Congress. Should states negotiate a compact affecting federal interests without involving federal representatives in the negotiations, Congress will be less willing to grant its consent. It should be noted, however, Congress has promoted interstate compacts in specified functional areas by granting consent-in-advance. Chapter 4 examines agencies, typically termed boards or commissions, created to administer interstate compacts, and Chapter 5 focuses upon the administration of compacts by departments and agencies of compacting states. Many subjects covered by interstate compacts are also the subjects of administrative agreements between state officers (see Chapter 6). Furthermore, compact agencies also enter into administrative agreements with other governmental entities. NOTES 1. The Federalist Papers (New York: New American Library, 1961), p. 283. 2. Holmes v. Jennison, 14 Pet. 540 at 572 (1840). 3. Virginia v. Tennessee, 148 U.S. 503 at 520. 4. Felix Frankfurter and James Landis, “The Compact Clause of the Constitution—A Study in Interstate Adjustments,” Yale Law Journal 34, May 1925, pp. 692–93, 730–32. 5. Ibid., pp. 732–34. 6. Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 at 285, 79 S.Ct. 785 at 792 (1959). 7. 110 Stat. 1609 (1996). 8. William K. Voit and Gary Nitting, Interstate Compacts & Agencies (Lexington, KY: The Council of State Governments, 1998). 9. Ann O’M Bowman, “State-to-State Relationships in the U.S. Federal System,” a paper prepared for delivery at the annual meeting of the American Political Science Association, San Francisco, September 1, 2001, p. 3. 10. Frankfurter and Landis, “The Compact Clause of the Constitution,” pp. 735–48. 11. 103 Stat. 1328 (1989). 12. Georgia–South Carolina Boundary Compact of 1999, 113 Stat. 1307; Missouri-Nebraska Boundary Compact of 1999, 113 Stat. 1333; and TexasOklahoma Boundary Compact of 2000, 114 Stat. 919. 13. Bowman, “State-to-State Relationships in the U.S. Federal System,” p. 7. 14. Frankfurter and Landis, “The Compact Clause of the Constitution,” pp. 735–41.

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15. Missouri-Nebraska Boundary Compact, 113 Stat. 1333 (1999). 16. Oklahoma-Texas Boundary Compact, 114 Stat. 919 (2000). 17. Frederick L. Zimmermann and Mitchell Wendell, The Law and Use of Interstate Compacts (Lexington, KY: The Council of State Governments, 1976), p. 17. 18. Ibid. 19. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 20. Calvin Sims, “Port Authority Seeks $1 Rise in Bridge Tolls,” New York Times, November 21, 1990, pp. B1, B6. 21. “Guide to Federal Participation in Interstate Compact Negotiations.” In Documents on Use and Control of the Waters of Interstate and International Streams: Compacts, Treaties, and Adjudications (Washington, DC: U.S. Government Printing Office, 1956), pp. 247–48. 22. Zimmermann and Wendell, The Law and Use of Interstate Compacts, p. 19. 23. Interview with Executive Director Daniel J. Smith of the Northeast Dairy Compact Commission, Montpelier, VT, September 18, 2001. 24. New York Laws of 1921, Chap. 154, Art. XXII, §2. The New Jersey law contains an identical provision. New Jersey Laws of 1921, Chap. 151, Art. XXII, §2. 25. Frederick L. Zimmermann and Mitchell Wendell, The Interstate Compact Since 1925 (Chicago: The Council of State Governments, 1951), p. 87. 26. 57 Stat. 88 at 91 (1943). 27. For the text of the compact, consult Wyoming Statutes Annotated, §§41– 12–201 et seq. 28. International Board of Inquiry for the Great Lakes Fisheries: Report and Supplement (Washington, DC: U.S. Government Printing Office, 1943), pp. 35–38. 29. Ibid., p. 103. 30. Zimmermann and Wendell, The Law and Use of Interstate Compacts, p. 54. 31. Roscoe C. Martin, Guthrie S. Birkhead, Jesse V. Burkhead, and Frank J. Munger, River Basin Administration and the Delaware (Syracuse, NY: Syracuse University Press, 1960), p. 131. 32. Barron v. Baltimore, 7 Pet. 243 (1833). 33. Green v. Biddle, 21 U.S. 1 (1823). 34. Dover v. Portsmouth Bridge, 17 N.H. 200 (1845). 35. Florida v. Georgia, 58 U.S. 478 (1854). 36. Virginia v. Tennessee, 148 U.S. 503 at 520 (1893). 37. Ibid. at 518. 38. United States Steel Corporation v. Multistate Tax Commission, 434 U.S. 452 at 473 (1978). 39. Northeastern Interstate Forest Fire Protection Compact, 63 Stat. 272 (1949). 40. Weeks Act of 1911, 36 Stat. 961, 16 U.S.C. §552. 41. Crime Control Consent Act of 1934, 48 Stat. 909, and Tobacco Control Act of 1936, 49 Stat. 1239, 7 U.S.C. §515.

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42. 73 Stat. 333, 49 U.S.C. §11032 (1959), and Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 43. See the Western Interstate Nuclear Compact of 1970, 84 Stat. 979. 44. Emanuel Celler, “Congress, Compacts, and Interstate Authorities,” Law and Contemporary Problems 26, Autumn 1961, p. 686. 45. Emergency Management Assistance Compact, 110 Stat. 3880 (1996). 46. 41 Stat. 1447 (1921). 47. Civil Defense Act of 1951, 64 Stat. 1249, 50 U.S.C. App. §2281(g). 48. 86 Stat. 383 (1979) and 64 Stat. 467 (1950). 49. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 50. James v. Dravo Contracting Company, 302 U.S. 134 at 148 (1937). 51. The Bi-State Development Agency Compact is an example. See 64 Stat. 568 (1950). 52. Boulder Canyon Project Act of 1928, 45 Stat. 1057. 53. Wabash Valley Compact, 73 Stat. 694 (1959), and Washington Metropolitan Area Transit Regulation Compact, 74 Stat. 1031 (1960). 54. Tobin v. United States, 306 F.2d 270 at 272–74 (D.C. Cir., 1962). 55. Zimmermann and Wendell, The Law and Use of Interstate Compacts, p. 24. 56. Congressional Record, August 5, 1939, p. 11175. 57. Congressional Record, April 2, 1941, pp. 3285–86. The modified compact received congressional consent on May 26, 1943. See 57 Stat. 86 (1943). 58. Hinderlider v. La Plata River and Cherry Creek Ditch Company, 304 U.S. 92 (1938). 59. Delaware River Joint Toll Bridge Commission v. Colburn, 310 U.S. 419 (1940). 60. Cuyler v. Adams, 449 U.S. 433 (1981). 61. Murdock v. City of Memphis, 87 U.S. 590 (1874). 62. Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 115 S.Ct. 394 (1994). 63. Entergy Arkansas, Incorporated v. Nebraska, 68 F.Supp.2d 1093 at 1100 (D.Neb. 1999). 64. Entergy Arkansas, Incorporated v. Nebraska, 241 F.3d 979 at 991–92 (8th Cir. 2001). 65. For an example, consult Ex Parte Young, 209 U.S. 123 (1908). 66. Removal of Causes Act of 1920, 41 Stat. 554, 28 U.S.C. §1441. 67. Kansas v. Colorado, 514 U.S. 669, 115 S.Ct. 1733 (1995). 68. Kansas v. Colorado, 121 S.Ct. 2023 (2001). 69. Pennsylvania v. Wheeling and Belmont Bridge Company, 50 U.S. 647 (1855). 70. Louisville Bridge Company v. United States, 242 U.S. 409 (1917). 71. “Virginia General Assembly Takes Steps to Leave ASMFC,” Bay Journal 5, March 1995, p. 13. 72. Janice L. McBride, A Catalog and Guide to Maryland’s Interstate Compacts (Annapolis: Maryland Joint Committee on Federal Relations, 1987), pp. 69, A8. 73. Georgetown v. Alexander Canal Company, 37 U.S. 91 at 95–96 (1838).

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74. Frankfurter and Landis, “The Compact Clause of the Constitution,” pp. 735–45. 75. Patricia S. Florestano, “Past and Present Utilization of Interstate Compacts in the United States,” Publius 24, Fall 1994, p. 19. 76. Ibid., pp. 21–22. Consult also Voit and Nitting, Interstate Compacts & Agencies. 77. Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991). 78. “Air Pollution: Message from the President of the United States,” Congressional Record, January 30, 1967, p. H737. See also the Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C. §1857. 79. New York Laws of 1921, Chap. 154, and New York Unconsolidated Laws, §§6401–7171. See Article IV of the compact. 80. 103 Stat. 1328 (1990). 81. 36 Stat. 882 (1910). 82. Interstate Agreement on Detainers of 1970, 84 Stat. 1397, 18 U.S.C. app. §9. 83. Kansas and Missouri Metropolitan Culture District Compact, 114 Stat. 909 (2000). 84. 50 Stat. 536. 85. Flood Control Act of 1936, 49 Stat. 1570, 33 U.S.C. §701. “Massachusetts Reimburses New Hampshire,” Worcester (MA) Telegram, December 5, 1959, p. 9. 86. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 87. For details, consult Carol S. Weissert and Jeffrey S. Hill, “The Low-Level Radioactive Waste Compacts: Lessons Learned from Theory and Practice,” Publius 24, Fall 1994, pp. 27–43. 88. “States Act to End Long Oyster War,” New York Times, June 14, 1964, p. 55. 89. 97 Stat. 1983 (1983). 90. Consult Blakely M. Murphy, ed., Conservation of Oil & Gas: A Legal History, 1948 (Chicago: Section on Mineral Law, American Bar Association, 1949), pp. 454–55. 91. Atlantic Striped Bass Conservation Act Amendments of 1986, 100 Stat. 989, 16 U.S.C. §1857 note. 92. Crime Control Consent Act of 1934, 48 Stat. 909, 4 U.S.C. §112. 93. Northwestern States Portland Cement Company v. Minnesota, 358 U.S. 450 (1966). 94. Frankfurter and Landis, “The Compact Clause of the Constitution,” p. 688. 95. New York Environmental Conservation Law, §§21–0701 and 21–0705. 96. Appalachian Regional Development Act of 1966, 79 Stat. 5, 40 U.S.C. app. §1. 97. Pacific Northwest Electric Power and Conservation Planning Act of 1980, 94 Stat. 2697, 16 U.S.C. §839b. 98. Darryll Olsen and Walter R. Butcher, “The Regional Power Act: A Model for the Nation?” Washington State Policy Notes 12, Winter 1984, pp. 1–6.

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99. Northern Forest Lands Council Act of 1990, 104 Stat. 3359, 16 U.S.C. §2101. 100. National Crime Prevention and Privacy Compact Act of 1998, 112 Stat. 1874, 42 U.S.C. §114611. 101. Indian Gaming Regulatory Act of 1988, 108 Stat. 2467, 25 U.S.C. §2701. 102. Cabazon Band of Mission Indians v. California, 480 U.S. 202 (1987). 103. 21 Stat. 37 (1879). 104. Water Resources Planning Act of 1965, 79 Stat. 244, 42 U.S.C. §1962. 105. Tennessee Valley Authority Act of 1933, 48 Stat. 58, 16 U.S.C. §831. 106. Donald Davidson, “Political Regionalism and Administrative Regionalism,” The Annals of the American Academy of Political and Social Science 207, January 1940, p. 141. 107. Philip Selznick, TVA and the Grass Roots (Berkeley: University of California Press, 1949). 108. Davidson, “Political Regionalism and Administrative Regionalism,” p. 142. 109. Martha Derthick, Between State and Nation: Regional Organizations of the U.S. (Washington, DC: The Brookings Institution, 1974), p. 24. 110. General Prosperity in the Valley (Knoxville: Tennessee Valley Authority, 1999).

Chapter 4

COMPACT COMMISSIONS

Interstate compacts, except boundary ones, are administered either by a specially created body, or by departments and agencies of the member states. The governing body may be termed a board or commission, and the term selected typically reflects the name preferences of the compacting states. The subject matter of a compact determines the best mode of administration. If a concordat provides for two or more states to construct and operate an infrastructure facility such as a bridge or a tunnel, unified administrative direction is essential. Certain metropolitan regulatory compacts, water pollution abatement ones are examples, also can function successfully if their administration is confided to a interstate commission. Departments and agencies of the compacting states, on the other hand, can administer service provision compacts readily. Similarly, a number of regulatory compacts, accreditation of teachers for example, also can be administered successfully by a state department. This chapter focuses on (1) the appointment, removal, and suspension of members of interstate compact commissions, (2) state and congressional oversight of commissions, and (3) selected facilities, service, regulatory, river basin, recommendatory, and federal-state compacts, and quasiinterstate compacts. APPOINTMENT AND REMOVAL OF MEMBERS The appointing officer(s) may be named in the compact, or it may simply contain a clause such as Article IV of the Interstate Environmental Compact (New Jersey–New York): “The commissioners shall be chosen in the man-

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ner and for the terms provided by law of the State from which they shall be appointed.” Commissions may have three types of members. The first type is a person(s) appointed by the governor of each compacting state subject to approval of the state senate or council. The appointees are selected politically in common with other officers appointed by the governor, but there is little evidence partisan affiliation or other political factors have influenced greatly the appointment of members of most compact commissions. The type of individuals appointed by governors differs according to the purpose of a compact. Individuals with business experience commonly are selected if the commission operates facilities such as bridges and tunnels. Not surprisingly, members of recommendatory commissions, including ex officio members, tend to be specialists in the subject matter of the compact. The rate of reappointment of commission members by governors usually is high, but certain members may be replaced upon the expiration of their term if a new governor is not a member of the same political party as his/her predecessor. The second type of member is the ex officio member who serves on the commission by virtue of a specified state office held. Representatives of the federal government are the third type of member found on certain commissions, and they seldom are granted voting power. The appointment or ex officio designation of commission members varies from compact to compact. Article IV of the Port of New York Authority Compact of 1921, the first one to create a commission, provides for six commissioners including “three resident voters from the State of New York, two of whom shall be resident voters of the City of New York, and three resident voters from the State of New Jersey, two of whom shall be resident voters within the New Jersey portion of the District.” Article V of the Interstate Mining Compact stipulates “[t]he Commission shall be composed of one commissioner from each party State who shall be the Governor thereof.” And section 2 of Article I of the Potomac River Fisheries Compact of 1958, that amended a 1785 compact, specifies the Maryland commission members are the secretary of the Department of Natural Resources and three members appointed by the governor with Senate approval, and the Virginia commission members are the three members of the Marine Resources Commission and one member appointed by the governor. The number of commission members varies from one to eight members from each compacting state. Article VI of the Interstate Compact to Conserve Oil and Gas simply stipulates each compacting state “shall appoint one representative.” Richard H. Leach and Redding S. Sugg, Jr. explained that “[w]here the number is smaller the compact is universally in a specialized area—such as water apportionment, oil conservation, or waterfront crime control—where technical competence or special administrative skill is the prime requisite for membership.”1

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Article VIII(a) of the Upper Colorado River Basin Compact, for example, directs one commissioner from each of the four compacting states “shall be designated or appointed in accordance with the laws of each such State and, if designated by the President, one Commissioner representing the United States of America.” Although the compact requests the president to designate a commissioner, none has been designated. A number of compacts require the appointment of one or more types of individuals as illustrated by Article III of the New England Interstate Water Pollution Control Compact: For each state there shall be on the commission a member representing the state health department, a member representing the state water pollution control board (if such exists), and, except where a state in its enabling legislation decides that the best interests of the state will be otherwise served, a member representing municipal interests, a member representing industrial interests, and a member representing an agency acting for fisheries or conservation.

The article also requires each commission member “be a resident voter of the state from which he is appointed.” Leach and Sugg explained in 1959 the New York State Legislature ignored the recommended procedures by requiring the governor to appoint five commissioners including the commissioner of health, a member of the water pollution control board, and three commissioners chosen at the governor’s discretion.2 The governor of each compacting state serves ex officio as a member of the Southern Regional Education Board and appoints four citizens as members including a state legislator and a person in the field of higher education. The ten-state Midwestern Higher Education Compact established a large commission. Each state is represented by the governor or his/her designee, a member of each house of the state legislature, and two at-large members one of whom must be involved in postsecondary education. Article VI of the Western Regional Education Compact created a commission composed of three members from each state including “an educator engaged in the field of higher education.” Section 2.2 of the Delaware River Basin Compact of 1961 provides “[t]he commission shall consist of the Governors of signatory states, ex officio, and one commissioner to be appointed by the President of the United States to serve during the term of office of the President.” Each member is required to appoint an alternate to act, including voting, in the absence of the member. Each alternate serves during the term of the appointing member. In the absence of an explicit provision authorizing a designated member to appoint an alternate, several compacts contain a stipulation, similar to the one in Article IV of the Ohio River Valley Water Sanitation Compact, that “nothing herein shall prevent the appointment of an officer or em-

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ployee of any State or the United States Government to membership.” Ex officio members, governors and department heads in particular, have great demands placed upon their time and the customary practice is for them to appoint alternates to represent them on the commissions. A number of compacts, including the New England Interstate Water Pollution Control Compact, authorize the appointment by the governor of a representative to the commission who is not required to be commissioner of health or chairman of the state water pollution control body. Article VIII(c) of the Arkansas River Compact mandates that two of the three members representing Colorado must be residents and water rights owners in specified water districts and two of the Kansas members must be residents of specified counties. An interstate compact may provide the governing body of concerned local governments will appoint the members of the compact’s governing body. Article IV(b) of the Interstate Library Compact stipulates each participating public library shall be represented on the governing board. The Columbia River Gorge Commission, according to its congressional consent statute, has one member appointed by the governing body of each of six named counties in Oregon and Washington, three members appointed by the governor of Oregon, three members appointed by the governor of Washington, and “one ex officio, nonvoting member who shall be an employee of the Forest Service, to be appointed by the [Agriculture] Secretary.”3 A compact may or may not contain a clause authorizing removal or suspension of a commissioner. The commissioners of the Port Authority of New York and New Jersey, in accordance with Article IV of the compact, “may be removed or suspended from office as provided by the law of the state for which he shall be appointed.” Article IV of the Interstate Sanitation [now Environmental] Compact stipulates a commissioner “may be removed or suspended from office as provided by the law of the state from which he shall be appointed.” The Delaware River Basin Compact (Art. 2.3) authorizes each member, governors of the signatory states and a U.S. representative, to remove an alternate member appointed by the member. The Columbia River Gorge Compact, on the other hand, is silent relative to removal or suspension of commissioners. ORGANIZATION AND POWERS Compacts typically authorize commission members to elect from among their membership a chairman and a vice chairman, and may authorize the election of other officers including a secretary or treasurer. The chairmanship and vice chairmanship commonly are rotated among members from the compacting states. Commission bylaws specify the duties of the officers. Compacts also specify how often commission meetings must be held and

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frequently authorize the commission to rotate the meeting place among member states. Commissions may meet only once or twice a year or monthly in the case of the Port Authority of New York and New Jersey. The term of office and compensation of commission members may be specified in the compact or may be left to the determination of party state legislatures. Many compacts contain no reference to compensation of members and several, such as the Palisades Interstate Park Compact, prohibit any compensation. The compact establishes a governmental entity that in effect is a multistate public authority free of many of the controls imposed on state departments and agencies. Hence, the governing body generally has greater freedom in carrying out its responsibilities. In common with state public authorities, a compact commission typically is authorized to establish an office(s), employ staff, acquire and/or dispose of real and personal property, sue and be sued, appoint committees, and adopt, amend, and repeal bylaws. A commission also may be empowered to borrow money and impose tolls and fees. Several compacts, including the Port Authority of New York and New Jersey Compact (Art. VII), permit the legislature of a compacting state to delegate additional powers to the compact commission provided the other participating state(s) concurs. The Bi-State Development Compact (Art. III, §8) authorizes the Bi-State Development Agency “to exercise such additional powers as shall be conferred on it by the legislature of either state concurred in by the legislature of the other state or by act of Congress.” The congressional consent resolution specifically forbids the commission to exercise such additional powers without the approval of Congress.4 The power of a commission to adopt bylaws can result in great organizational flexibility. Leach and Suggs reported the Southern Regional Education Compact originally was intended to establish and operate regional higher education institutions, but “early experience demonstrated to the Board that such an orientation simply was not feasible.”5 Hence, the board changed the bylaws to stipulate “[i]n so far as possible, needed regional educational services shall be provided through special arrangements among existing institutions.” This example reveals clearly the governing body of a compact can utilize bylaws to initiate major changes without the need for amendment of the compact by the participating state legislatures and for Congress to grant consent to such changes. Compact amendment is necessary if the partnership states desire the commission to undertake new activities as illustrated by amendment of the Port Authority of New York and New Jersey Compact to allow the authority to engage in industrial development projects (see Chapter 3). Each compact grants specific powers to the governing board or commission, but the importance of the powers varies considerably. A commission’s powers may be acquired by two means. First, the compact may transfer

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powers of existing boards or commissions in the party states to the new interstate commission. The Palisades Interstate Park Commission, established by a compact in 1937, acquired the duties and powers of the Palisades Park Boards in New Jersey and New York (Art. III). Second, the interstate compact commission may be granted powers to carry out specified assigned functions. A compact authority charged with responsibility for constructing, maintaining, and operating facilities—airports, bridges, marine facilities, roads, and tunnels—is granted broad authority to determine the location of facilities to be constructed, employ personnel, enter into contracts with consultants, exercise the right of eminent domain, impose tolls and other charges, issue revenue bonds, pay commissions, and utilize incidental powers. An interstate water apportionment commission is responsible primarily for ensuring compacting states adhere to the compact’s limits on the quantity of water that may be diverted or stored, and granting certain exceptions. Stream gauges are installed and monitored by commission personnel. Detected violations of the limits lead to no commission action other than reporting the violations to the concerned state(s) for remedial action. Recommendatory commissions do not deprive existing state departments and agencies of any authority, and in fact may lack authority to conduct studies. The Atlantic and Gulf Marine Fisheries Commissions, for example, are required by their respective compact to have their research performed by the U.S. Fish and Wildlife Service. Interviewed by Richard H. Leach in 1954, Secretary-Treasurer Wayne D. Heydecker of the Atlantic Marines Fisheries Commission explained it was “designed primarily as an instrument for coordination of” research.6 Similarly, the Interstate Oil and Gas Compact Commission is authorized to study methods of promoting conservation and prevention of waste of oil and gas, but lacks any enforcement powers. The Interstate Environmental Commission (New Jersey and New York) and the Ohio River Valley Water Sanitation Commission have been granted enforcement powers to abate water pollution, but generally prefer to rely upon education and persuasion to achieve their goals. The role of these commissions, however, has changed as the result of the 1965 decision of Congress to exercise its power of preemption to establish national water quality standards (see below).7 STATE AND CONGRESSIONAL INTERVENTION State legislatures in enacting an interstate compact may include provisions for oversight of compact commissions to protect the interests of the states. Similarly, Congress in granting consent to an interstate compact typically reserves its right to amend the compact or repeal its consent. Furthermore, Congress always reserves its right to control navigable waters.

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State Intervention State negotiators insert provisions in a compact reserving to state governments adequate powers to intervene in the affairs of a compact commission other than an advisory one. Each compact, for example, requires the commission to issue an annual report. Information in such a report, as well as newspaper articles and other reports, may lead the governor and/ or state legislature to conduct an investigation of the commission. Leach and Sugg reported in 1959 there had been little evidence “the reports of compact agencies have been taken seriously by the legislatures that have required them. In general, they are routinely handled and often filed without being circulated to legislators.”8 A survey of concerned committees of the New York State Legislature in 2001 found the same pattern; that is, reports are filed with committees, but are not distributed to legislators or generally read.9 The Port Authority of New York Compact of 1921 (Art. VI) forbids the authority to exercise any of its powers “until the legislatures of both states shall have approved of a comprehensive plan for the development of the port as hereinafter provided.” Article XVI permits a binding action to be taken by the commission only if a minimum of two of the three members from each state are present and four members vote to take the action. This article also authorizes each state legislature to provide “for the exercise of a veto power by the governor thereof over any action of any commissioner appointed therefrom.” Governors of New Jersey and New York have employed the veto power and more commonly threatened to veto a contemplated commission action. Governor Brendan Byrne of New Jersey in 1977 vetoed on two occasions all decisions of the Port Authority Board of Commissioners.10 In addition, he insisted the increase in bridge and tunnel tolls be rescinded until a detailed public transit-aid program was prepared. Similarly, Governor Hugh L. Carey of New York in 1982 vetoed the authority’s budget for its Port Authority Trans-Hudson [PATH] system on the ground the budget “continued the policy of inordinate subsidization of PATH.”11 More commonly, governors do not exercise their veto powers because extensive negotiations between the Port Authority Board of Commissioners and the governors of the two states occur with respect to politically important matters such as increasing bridge and tunnels tolls, and fares on PATH commuter trains. Not surprisingly, considerable bargaining occurs between the commissioners to ensure each state receives approximately equal benefits in terms of projects and the two governors may engage in direct negotiations. New York, on one occasion, received an indirect benefit from the authority’s decision to construct a new bus terminal in New York City at a time when the city was experiencing serious financial problems. Mayor Abraham Beame, the first prominent Democrat to campaign in the

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1976 presidential primary election in favor of Governor James E. Carter of Georgia, lobbied successfully the Carter White House to allow the funds spent by the Port Authority for its bus terminal project in New York City to count as the required non-federal matching share of a federal grant to the New York City Transit Authority for new rail cars. The Port Authority board in late 2000, for example, proposed higher tolls that were criticized at a public hearing on the proposal. After negotiations with Governor Christine Whitman of New Jersey and Governor George E. Pataki of New York, the board on January 25, 2001, raised tolls and fares by amounts less than those included in its proposed increases.12 The board seeks to increase the use of E-Z passes (see Chapter 6) during peak hours by continuing a significant toll differential between the cash toll and the E-Z pass toll. To what extent are interstate compact commissions monitored by a governor or a state legislative committee? To date, apparently no governor has ordered a major review of a commission. Marian E. Ridgeway reported in 1971 that Kansas and Illinois were the only states that required “a quadrennial renewal of the Interstate Oil Compact.”13 The first comprehensive review of all compacts entered into by a state was initiated by the 1972 Maryland General Assembly which created a Commission on Intergovernmental Cooperation, a joint legislative committee, to review all interstate compacts entered into by Maryland.14 In 1994, Patricia S. Florestano reported Maryland, Nebraska, and Oklahoma evaluated interstate compacts.15 Today, no state legislature conducts a periodic comprehensive review of compacts. In granting consent to an interstate compact, Congress usually reserves the right to amend or repeal its consent or may stipulate, as in the New England Interstate Water Pollution Control Compact, that “[n]othing contained in this act or in the compact herein approved shall be construed as impairing or affecting the sovereignty of the United States or any of its rights or jurisdiction in and over the area or waters which are subject to the compact.”16 On a few occasions, Congress has limited its compact consent to a specified period of years, thereby ensuring an opportunity for its review. Congressional consent in 1935 for the Interstate Compact to Conserve Oil and Gas was limited to two years, subsequently was extended for periods of four years, and was made permanent in 1979.17 Consent for the Atlantic States Marine Fisheries Compact initially was limited to fifteen years, but became permanent in 1950.18 The ten interstate compacts formed under the Low-Level Radioactive Waste Policy Act of 1980 are subject to a fiveyear sunset provision.19

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Congressional Intervention Congress often has conditioned its consent upon the concerned state legislatures amending a compact to meet congressional objections that may reflect the concerns of certain federal departments and agencies (see the Delaware River Basin Compact below). If a compact has received congressional consent, any proposed compact amendment is subject to Congress granting its consent to the amendment. Chapter 3 describes how U.S. Representative Elizabeth Holtzman of Brooklyn blocked congressional consent for an industrial development amendment to the Port of New York and New Jersey Compact until its board of commissioners agreed to finance a study of the economic feasibility of constructing a rail freight tunnel under the Hudson River. There has been only one major investigation of a compact commission by a congressional committee. Criticisms of the operations of the Port of New York Authority [now Port Authority of New York and New Jersey] grew in the 1950s. As early as 1952, Representative Alfred Sieminski introduced in the U.S. House of Representatives a resolution rescinding congressional consent for the 1921 compact.20 Chairman Emanuel Celler of the Judiciary Committee of the U.S. House of Representatives summarized the criticisms as follows: (1) that the policy of the Authority in combining revenues for financing purposes from all its facilities rather than reducing tolls on each facility as it is amortized unduly burdens the channels of interstate commerce and is contrary to the national transportation policy; (2) that certain activities of the authority unjustifiably discriminate against certain types of interstate carriers; (3) that the Authority has extended its operations beyond the geographical limits contemplated by Congress; (4) that the Authority has let certain contracts without permitting competition and has failed to grant the award to the lowest qualified bidder; and (5) that the overall operations of the Authority have never been subjected to a comprehensive independent audit by any government agency.21

Responding to the request of members of the New Jersey congressional delegation, Chairman Celler directed the committee staff to study the activities and operations of the authority and requested its executive director, Austin J. Tobin, to make available certain files for Celler’s staff to examine. Tobin responded by providing files already in the public record. The committee served subpoenas on Tobin and the chairman and secretary of the board of commissioners to produce certain documents. Each officer declined to produce the documents at the direction of Governor Robert B. Meyner of New Jersey and Governor Nelson A. Rockefeller of New York. The refusal prompted the Judiciary Committee’s Subcommittee No. 5 to

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vote on June 8, 1960, to examine the Port Authority operations to determine, among other things, the degree to which it was carrying out its compact duties and responsibilities, and whether it had exceeded the scope of powers included in the congressional grant of consent to the compact. On June 30, 1960, the Judiciary Committee voted to approve referral to the House of Representatives of the refusal of the subpoenaed witnesses to produce the documents and the House on August 23 approved three resolutions recommending the citation for contempt of the three authority officers.22 The resolutions were referred to the U.S. Attorney for the District of Columbia who on November 25 filed an information for contempt against only Tobin. His trial commenced in January 1961 in the U.S. District Court for the District of Columbia, and he argued the subcommittee lacks authority to conduct an investigation. Furthermore, Tobin contended communications between the authority and the governors of the two states and their staffs were privileged information. Judge Luther Youngdahl on June 15 rejected these arguments by explaining the test for determining whether the subpoenaed documents were privileged from nondisclosure involved balancing the congressional need for the subpoenaed documents against the dangers to the Port Authority that would result from disclosure. He concluded the balance was in favor of disclosure and found Tobin guilty of the charge.23 Tobin appealed the conviction and the U.S. Court of Appeals for the Second Circuit on June 8, 1962, reversed the conviction by interpreting the resolutions authorizing the investigation as limited to documents relating to the Port Authority’s activities and operations.24 The court specifically excluded “administrative communications, internal memoranda, and other intra-Authority documents.”25 The U.S. Department of Justice filed a petition for the issuance of a writ of certiorari by the U.S. Supreme Court, but the petition was rejected by the court on November 13, 1962.26 SELECT COMMISSIONS An in-depth review of the performance of each interstate compact commission would be a monumental task. This section is limited to a sample of representative commissions with jurisdiction over (1) all member states or (2) parts of two or more states. Two interstate school districts fall within the confines of the second category. The importance of water is illustrated by New York’s membership in six interstate water compacts. It is appropriate to commence the review by selecting the first commission to be established by a compact. Port Authority of New York and New Jersey The states of New Jersey and New York signed an agreement in 1834 specifying the obligations and rights of the two states in the Hudson River

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and Bay of New York.27 No further joint action was taken by the states until World War I clearly revealed the inadequacies of the Port of New York which was called upon to move massive amounts of supplies and millions of troops to Europe. In response, the governors in 1917 created the New York–New Jersey Port Development Commission to review the 1834 agreement and develop a plan for port improvement. In 1921, the two state legislatures accepted the commission’s recommendations and enacted an interstate compact creating the Port of New York Authority to develop and operate marine transportation and terminal facilities in an area radiating twenty-five miles from the Statute of Liberty in New York City harbor.28 The authority was modeled on the Port of London Authority and was a novel body at the time of its creation in the United States. Article IV of the compact establishes a commission and authorizes the governor of New Jersey to appoint three members including two resident voters of the New Jersey portion of the Port of New York District, and the governor of New York to appoint three members including two resident voters of New York City. A tradition has developed in recent years that the chairman of the authority will be appointed by the New Jersey governor and the executive director will be appointed by the New York governor. The compact is not a political one, but was submitted to Congress for its consent on the advice of bond counsels. Such consent would facilitate the purchase of the authority’s revenue bonds by conservative investors who would be reassured of the bonds’ safety by the congressional approval. The name of the authority was changed in 1972 to the Port Authority of New York and New Jersey to represent more clearly its identity as a bistate body. The early 1920s was a difficult period for the authority, but its prospects became brighter in 1930 when the states assisted the authority by transferring to it the newly constructed Holland Tunnel, a toll motor vehicle facility under the Hudson River. Subsequently, the authority constructed or assumed responsibility for the Lincoln Tunnel and four interstate toll bridges—George Washington [the world’s busiest], Bayonne, Goethals, and Outerbridge Crossing. More than 125 million eastbound vehicles annually use these tunnels and bridges. In addition, the authority owns six container ports and marine terminals, three industrial parks, a rapid transit system (PATH) used by nearly 70 million passengers annually, four transportation centers including the Port Authority Bus Terminal that is the nation’s busiest bus terminal with more than 57 million travelers annually, and a teleport (the world’s first satellite communication center). The 10.6 million square foot twin towers of the authority’s World Trade Center were destroyed on September 11, 2001 by terrorists who flew two hijacked airliners into the towers. In 1948, the authority leased LaGuardia Airport and Idlewild (now Ken-

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nedy International) Airport from New York City, and Newark Airport from the city of Newark. These airports are among the busiest in the United States with more than 90 million travelers annually. Currently, the authority also operates Teterboro Airport and the Downtown Manhattan and West 30th Street Heliports. The authority’s marine facilities handle more than 2 million containers annually. The authority is totally self-financing and receives no financial assistance from its parent state governments. Capital is raised by revenue bonds serviced and redeemed by income generated from tolls, fees and charges from its operations of airports and terminals, and rents from offices and retail stores. Gross operating revenues totaled $2.6 billion in 2000 and current reserves were $1.6 billion at the end of the year.29 In 2001, commissioners approved a $4.6 billion budget that includes $2.05 billion as part of a fiveyear $14.0 billion capital plan to purchase additional trains, dredge harbor channels, improve bridges and tunnels, and modernize the three jetports it operates.30 In addition to the above, the Port Authority lists among its achievements: • Development of the container shipping concept and construction of the world’s first container port. • Design of airport taxiway lighting and signage standards that have become the standards for airports throughout the world. • Construction of the first exclusive reversible bus lane in the United States. • Development of the world’s first teleport. • Construction of the first over-water airport runways in the world. • Application of microfiche technology to medical records.31

The authority was recognized widely as a well-managed and effective professional organization during its first two and one-half decades of operations. Governor Franklin D. Roosevelt of New York was one of the authority’s early admirers. Speaking at the dedication of the George Washington Bridge in New York City on October 24, 1931, Governor Roosevelt was impressed by the authority’s coordination of interstate arteries that resulted in the “elimination of wasteful planning methods or toll competition” and paid a glowing tribute to the authority in the following terms: For its planning, execution, and sound financing, the Commissioners of the Port of New York Authority must be credited with a high and unselfish devotion to the public good. To my mind, this type of disinterested and capable group is a model of governmental agencies. Its methods are charting the course toward the more able and honorable administration of our nation’s affairs—a course they have proved can be safely steered through the political waters with intelligence and integrity at the helm.32

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Criticisms of the authority, however, began to mount after World War II and are illustrated by the investigation conducted by the Judiciary Committee of the U.S. House of Representatives and the temporary blocking of a proposed compact amendment by U.S. Representative Elizabeth Holtzman described in an earlier section. The nature of the criticisms of the authority had changed by 1996 when economist Dick Netzer wrote “[t]he Port Authority’s structure is the product of an earlier age of faith in big organizations, public and private.”33 He explained the authority in theory operates independently, but in reality is controlled by the governors of the two states who are blamed in large measure for “the blunders of the past 20 years.”34 Netzer added most of the authority’s projects lose money and are subsidized by revenues generated by bridge and tunnel tolls, and the authority has “a penchant for misjudging trends and making egregious blunders.”35 In sum, he recommended the PATH system should become part of the New Jersey Transit System, the authority should be divested of its airports, marine terminals should be privatized, and the authority should be responsible only for bridges, bus terminals, tunnels, and regional transportation planning.36 Jameson W. Doig, a long-time student of the authority, noted in 2001 the authority in the 1972–2000 period was characterized by “drift, patronage, and favoritism, and the search for new goals.”37 He concluded “the independence of the commissioners declined in the 90’s and they were not strong and were taking their marching orders from the governors when the governors cared about the agency.”38 Executive Director Robert Yaro of the Regional Plan Association echoed this criticism when the authority in the 1990s “became ‘a cookie jar’ for pet projects of the two governors,” but “we feel that they have gotten back on track and are a leaner, meaner, and more focused place than they have been in 40 years.”39 In his judgment, the lease of the World Trade Center to a private developer reflected an important change in the authority’s direction. Mayor Rudolph W. Giuliani of New York City also has been critical of the authority and maintained in 2001 its operation of the city-owned Kennedy and LaGuardia airports ranks among the poorest in the world.40 He announced the city would not extend its contract with the authority to operate the airports when it expires in 2015 and the city has employed BAA USA, a private management firm, to prepare a long-range plan for the city to assume control and operate the airports. The mayor attributed the poor quality of the airports to the authority’s use of airport operation profits to subsidize losses incurred by its PATH system and Manhattan bus terminal. Giuliani pressured New York Governor George E. Pataki to have the New York members of the authority’s board of commissioners persuade their New Jersey counterparts vote to terminate the contract, but a Pataki spokesman reported, “New Jersey has little interest in breaking up the Port Authority or in extracting the airports.”41

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Education Compacts The first interstate education compact was the Southern Regional Education Compact of 1949, drafted in 1948 by a committee of the Southern Governors’ Conference, and effective upon its enactment by six state legislatures.42 Compact proponents sought congressional consent, but it never was granted for apparently two reasons: Opponents argued the compact would preserve racial segregation in colleges and universities, and a number of members of Congress, particularly Senator Wayne Morse of Oregon, believed consent was not needed since the compact was nonpolitical.43 Currently, sixteen states have enacted the compact; each state is represented by its governor and four other members, including a state legislator and an educator appointed for four-year terms by the governor. The compact’s board initially focused on establishing contracts for educational services—veterinary, medical, dentistry, nursing, and pharmacy— with each state-operated professional school agreeing to admit a specified number of students from sister state members of the compact upon payment of a specified amount per student annually. This system was particularly beneficial for students of states lacking certain professional schools. Subsequently, memoranda of agreements were signed providing for development of a regional plan in a given field of education, such as forestry. Today, the Southern Regional Education Board is involved with a wide variety of programs including (1) an electronic campus offering 2,000 courses and 75 degree-granting programs to approximately 20,000 students, (2) the Doctoral Scholars Program assisting minority students to earn Ph.D. degrees and become college and university faculty members, (3) shared resources in higher education benefiting 25,000 students residing in states lacking particular academic programs in state colleges and universities, (4) development of curriculum guidelines to assist nurse educators prepare for positions as school nurses, (5) an educational technology cooperative that seeks to develop a model educators can employ to develop Internet courses such as algebra, and (6) early reading programs for children.44 Following the lead of the southern states, the Western Interstate Compact on Higher Education was enacted in 1953, the New England Board of Higher Education (NEBHE) was established in 1955 by an interstate compact proposed by the governors of the states and enacted by the state legislatures, and the Midwestern Higher Education Commission was created by an interstate compact in 1991. Under Article I of the New England compact, residents may enroll in an out-of-state college or university within the region at a significantly reduced tuition to pursue a degree in an academic discipline not offered by public colleges and universities in their state of residence. The Board of Higher Education, composed of three members from each party state appointed in

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accordance with the laws of the respective states, operates the (1) New England Public Policy Collaborative that coordinates policy research expertise, (2) Excellence Through Diversity Initiative designed to increase the number of minority students and faculty members at colleges and universities, (3) New England Technology Education Partnership uniting educators and professionals to improve two-year technology education programs, (4) Environmental Education Program that promotes support by colleges and universities of the region’s environmental industry and environmental policymaking, and (5) New England Telecommunications and Distance Learning Program that examines methods by which colleges and business firms can use telecommunications technology more effectively for education and training.45 Only the New England compact has been faced with a member state withdrawing from the compact, a second state threatening to withdraw, and failure of a member state to provide annual funding. The 1960 Connecticut State Legislature enacted a bill withdrawing from the compact, but repealed the bill the following year.46 In 1981, Governor Joseph Brennan of Maine notified the compact’s board his state would withdraw from the compact at the end of the two-year cooling off period, but reversed his action in 1983. The third incident involved Massachusetts. Article VI of the compact stipulates: “Each state agrees that when authorized by the legislature pursuant to the constitutional processes, it will from time to time make available to the board such funds as may be required for the expenses of the board as authorized under the terms of this compact.” The board in 1989 became involved in a controversy with Governor Michael S. Dukakis of Massachusetts over the Commonwealth’s failure to meet its financial obligations under the compact. Massachusetts was experiencing fiscal problems at the time flowing from a recession. The arrears for fiscal year 1990 totaled $203,977. On May 3, 1990, Governor Dukakis wrote to board President John C. Hoy and Dr. Melvin H. Bernstein, Senior Fellow at the board, and maintained: We . . . remain confident that the amount contributed by the Commonwealth under the Compact is subject to authorization pursuant to our state’s constitutional processes. Absent such authorization for the full amount of NEBHE’s recommendation in a particular fiscal year, the Commonwealth is not obligated under the compact to render the full amount recommended.47

After negotiations between the board and the governor, the Commonwealth paid the arrears and current amount due under the compact. Education Commission of the States The origin of this compact is a 1964 book by Dr. James B. Conant, President Emeritus of Harvard University, who was disturbed by the lack

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of a coordinated national educational policy and suggested an interstate compact be employed to create an “Interstate Commission for Planning a Nationwide Educational Policy.”48 The proposed commission would administer no educational programs, but would reflect “the opinion of both educators and politicians” who “will identify issues and appoint working committees.”49 Each committee would make its findings available to states to assist them in development of plans to improve public education. Dr. Conant spoke at several national conferences, including the National Governors’ Conference, on the subject of his proposed commission. Governor Terry Sanford of North Carolina took the initiative by writing to educational associations, educators, governors, and others and called a meeting for Kansas City on September 29–30, 1965, for the purpose of examining the proposal for a compact. Conference participants—nineteen governors, and representatives from all states, American Samoa, Puerto Rico, and the Virgin Islands—approved the concept and initiated action to implement a compact.50 Interestingly, a state can become a member of the compact, according to Article VIII(C), either by legislative enactment or “adherence by the governor.” Article VIII(B) stipulates the compact will be effective when adopted by ten states; the goal was achieved on February 18, 1967. Currently, all states, the District of Columbia, Puerto Rico, and the Virgin Islands are members. The purposes of the compact are outlined in Article I: 1. Establish and maintain close cooperation and understanding among executive, legislative, professional, educational and lay leadership on a nationwide basis at the state and local levels. 2. Provide a forum for the discussion, development, crystallization, and recommendation of public policy alternatives in the field of education. 3. Provide a clearinghouse of information on matters relating to educational problems. 4. Facilitate the improvement of state and local educational systems so that all of them will be able to meet adequate and desirable goals in a society which requires continuous qualitative and quantitative advance in educational opportunities, methods, and facilities.

The commission reported its 1999–2000 activities included providing policy and technical assistance to educational policy leaders in all states and territories, completing a four-year State Leadership for Learning Initiative assisting policy makers in redesigning educational policies, providing special services to several states and the Cleveland and Detroit school boards, and responding to 2,625 information requests.51 Interstate School Districts Somewhat surprisingly, the interstate compact device was not utilized to organize a school district until 1963 when the first of two New Hampshire–

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Vermont Interstate School Districts was created. Although the Maine State Legislature and the New Hampshire General Court (state legislature) in 1969 each enacted a statute authorizing the creation of an interstate school district, no such district has been formed to date.52 After extensive negotiations, the New Hampshire General Court and the Vermont General Assembly in 1961 enacted identical statutes creating the 7th–12th grade Dresden Interstate School District encompassing the towns of Hanover, New Hampshire and Norwich, Vermont. The statutes stipulate the school district in each town, prior to or subsequent to establishment of the interstate district, is authorized to enter into agreements with the other not inconsistent with the compact. The decision to include the authorization of agreements in the compact was due to unresolved issues—curriculum, procedures, retirement policies, and teacher certification—when the state statutes were enacted.53 The two school districts entered into such an agreement and Congress in 1963 granted its consent to the compact and to the agreement.54 The agreement consented to by Congress provides: 1. The schools of the Hanover District, the Norwich District, and the Union District shall be administered by the same Superintendent. The Union District may also hire an Assistant Superintendent. 2. The curricula of the elementary schools of the Hanover and Norwich Districts shall be standardized so that children in both towns will have an integrated education. 3. The Union District will accept tuition pupils in grades 7–12 when this is to the advantage of its educational program. 4. Except for the special cases listed below, the following statutory formula shall in general apply for apportionment of current annual appropriations after the first two fiscal years of operation: . . . shall be divided between Hanover and Norwich in proportion that the average daily membership of each in the district school for the preceding fiscal year bears to the total average membership for such year.

The special cases relate to inclusion of costs such as driver training and health supervision, and exclusion of subsidies of school lunches and costs relating to the gymnasium, cafeteria, and maintenance of grounds. The Union District encompasses kindergarten through grade 6 schools in three New Hampshire towns—Hanover, Lyme, and Orford—and Norwich, Vermont. The agreements were renegotiated in 1995 and 2000 with minor changes. Voters assemble at an annual interstate school district meeting, similar to an open town meeting, to elect members of the school board and other officers, act on policy matters, and appropriate funds.55 Dr. William G. Zimmerman, the first superintendent of the interstate district, met with the New Hampshire and Vermont commissioners of education to reach agreements on the unresolved issues.56 Agreements were reached that the curriculum, retirement system, and teacher certification

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requirements would be those of the state where the interstate school would be located. The interstate school is located in New Hampshire. The agreements also provided various New Hampshire and Vermont forms would be completed by the interstate school district and transmitted to the two state departments of education. Since the two states did not have a common fiscal year, two sets of reports relating to state financial assistance and school building grants had to be completed. The Vermont Supreme Court in 1964 ruled the General Assembly may authorize a municipality to invest tax money outside the state in a board not under state control.57 Implementing the new district also was complicated by the need to engage in collective bargaining with a relatively large number of unions. Furthermore, the Social Security Administration offices in Concord, New Hampshire, and Montpelier, Vermont, refused to accept the social security taxes deducted from the salaries of the employees of the interstate district. After negotiations with the national Social Security Administration, an agreement was reached the district would be treated as a “state” and the taxes are sent to the national office. Today, the Dresden Interstate School District is faced with two major problems: enrollment growth and threat of dissolution.58 The district is facing an enrollment bubble that will peak in 2004 even though the student population in Norwich has been declining for a number of years. Currently, 43 percent of the students reside in Norwich and 57 percent reside in Hanover. The threat of dissolution reveals how politics in one state can have a potentially disastrous impact upon an interstate school district. A $38 million plan for the construction of a new school has been withdrawn because the plan would place an undue burden on Norwich due to Vermont’s famous Act 60 of 1997, as amended, imposing a statewide property tax and requiring school districts spending more than the state education block and categorical grants to send part of their school property tax revenues to a state educational sharing pool to be used for equalization purposes.59 All but fourteen school districts in 2001 spent above the specified amount and must send funds to the state educational sharing pool.60 The act was enacted by the Vermont General Assembly in response to a state supreme court opinion holding major disparities in spending by school districts violate the state constitution.61 Under the act, property wealthier towns must increase property taxes by a greater amount than they need in order to contribute to the state educational sharing pool. Norwich is a wealthy town and a donor to the pool. If the Dresden Interstate School District decides to increase spending, the burden placed on Hanover will be considerably less than the burden placed on Norwich which must contribute approximately 30 percent of its property tax revenues to the state pool.62 Norwich board members suggested devising an arrangement under which capital financing would place a lesser

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burden on the town. Hanover residents, however, generally agree they should not subsidize the Act 60 program when they have no voice in determining Vermont educational policies. The phrase “No taxation without representation” is popular in Hanover. The interstate compact contains no provision for dissolution. It is apparent dissolution would require an affirmative vote in each town, in each state legislature, and in Congress. Dissolution, however, is not required if each town contributes no funds to an inactive district that would remain on the statute books, but another problem would be created. What would be done with the district’s property? Dissolution or an inactive district would present a major problem for Norwich since there are no other nearby high schools with high academic standards. Congress in 1969 gave its consent for a second New Hampshire–Vermont Interstate School Compact enacted by the two state legislatures, but no interstate school district was organized until 1998 when voters in three Vermont towns—Fairlee, Vershire, and West Fairlee—and Orford, New Hampshire approved creation of the Rivendell Interstate School District, the first kindergarten to grade 12 interstate school district.63 “The decision came after 15 months of research, cooperative planning, and negotiations between representatives from the four towns, New Hampshire and Vermont Departments of Education, and labor unions in both states.”64 Article W of the Articles of Agreement approved by the voters stipulates “[t]he duration of the Interstate District is intended to be perpetual and present law provides no method to dissolve the Interstate District.” The formation of the interstate district was precipitated indirectly by the nearby Dresden Interstate School District reducing the number of tuition students because its in-district student population was growing and taxing school facilities.65 Fairlee, Vermont, and Orford, New Hampshire, were faced with the problem of not having a high school to which their students could be sent. Pressures to create the interstate district also were generated by the existing four school districts eliminating and reducing educational programs because of increasing costs. Furthermore, school facilities in the four towns needed improvements including major repairs. The towns employed the Dresden Interstate School District attorney and a former Dresden Interstate School District superintendent to provide advice on formation of the Rivendell Interstate School District. Negotiations moved forward smoothly and the organizers received excellent cooperation from the New Hampshire and Vermont commissioners of education. The district is considered to be a Vermont district for purposes of curriculum, retirement system, and teacher certification. The new district has experienced a cultural problem since Vershire and West Fairlee have a rural culture, the illiteracy rate is relatively high, and parents do not provide their students with as much support as parents in Fairlee and Orford. When the district opened classes on August 28, 2000, major implemen-

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tation problems were encountered as there had been no standards in the former town school districts, discipline problems abounded, and there was little effective supervision. In addition, a controversy erupted over the curriculum combining concepts from several disciplines in an attempt to help students better understand the concepts.66 Instead of separate algebra, geometry, and statistics classes, for example, one class combines concepts from these disciplines. Federal-State Compacts Section 10 of Article I of the U.S. Constitution requires the consent of Congress before an interstate compact becomes effective, but does not contain a reference to Congress enacting a compact and becoming a partner with two or more states. In 1925, Felix Frankfurter and James Landis wrote an influential interstate adjustments article highlighting the combined legislative powers of Congress and of the several states permit a wide range of permutations and combinations for governmental action. Until very recently these potentialities have been left large unexplored. . . . Creativeness is called for to devise a great variety of legal alternatives to cope with the diverse forms of interstate interests.67

Reciprocal and uniform laws were cited as examples. Another creative approach is the provision in the 1948 regulatory Ohio River Valley Water Sanitation Compact authorizing the president to appoint three members of the commission established by the compact.68 Five federal-state compacts have been enacted into law by the concerned state legislatures and Congress—Delaware River Basin Compact, Susquehanna River Basin Compact, Appalachian Regional Compact, AlabamaCoosa-Tallapoosa River Basin Compact, and Apalachicola-ChattahoocheeFlint River Basin Compact. The first two are described immediately below. Delaware River Basin Compact The emergence in 1961 of a new type of compact—the federal-interstate compact—comported with Frankfurter’s and Landis’ call for creativeness. The Delaware River Basin Compact, a new form of federal-state cooperation, was enacted by four state legislatures—Delaware, New Jersey, New York, and Pennsylvania—and Congress for an initial period of 100 years.69 Section 2.2 of the compact created a commission composed “of the governors of the signatory states, ex officio, and one commissioner to be appointed by the President of the United States to serve during the term of office of the President.” In 1997, Congress stipulated the federal members and alternate members of this commission and the Susquehanna River Basin Commission (see below) must be regular Army officers of the U.S. Army

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Figure 4.1 Delaware River Basin

Source: Federal-Interstate Compact Commissions: Useful Mechanisms for Planning and Managing River Basin Operations (Washington, DC: U.S. General Accounting Office, 1981), p. 2.

Corps of Engineers. Both compacts are designed to integrate the activities of national and state governmental agencies instead of displacing them.70 A dispute had raged for many years between New York and three states—Delaware, New Jersey, and Pennsylvania that relied upon Delaware River water—with respect to the amount of water to be discharged into the 282-mile long river from the exceptionally large New York City reservoirs in the Catskill Mountains (see Figure 4.1). Two proposed Delaware River Basin Compacts failed to gain approval in the 1920s, and a similar proposed compact died in a Pennsylvania Senate Committee after being

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approved in the 1950s by the other concerned states and the Pennsylvania House of Representatives. In 1931, the U.S. Supreme Court issued a decree allowing New York City to divert no more than 440,000,000 gallons of water daily from the Delaware River or its tributaries and requiring construction of a plant to treat sewage in Port Jervis, New York, prior to discharge into the Delaware and Neversink Rivers.71 Reacting to a petition to amend the 1931 court decree to allow New York City to divert additional river waters, the U.S. Supreme Court in 1954 adopted the report of its special master, suspended the 1931 decree, and authorized the city to divert additional water upon completion of a reservoir on the East Branch of the Delaware River and a further diversion upon completion of the Cannonsville Reservoir.72 The water diversion controversy continued and two 1955 hurricanes caused major damage in the river basin. In the same year, the governors of the four concerned states and mayors of New York City and Philadelphia established the Delaware River Advisory Committee to examine the water problems in the river basin. The committee was instrumental in the establishment of the Water Resources Foundation for the Delaware River Basin, a private organization, which received a major grant from the Ford Foundation to study the need for a governmental organization for the river basin. The Maxwell Graduate School of Syracuse University was engaged to conduct the study. The study, completed in 1959 and published as a book in 1960, recommended a two-phase organizational plan.73 According recognition to the fact negotiation of a compact might take years, the report suggested Congress should creat a transitional agency—Delaware River Agency for Water—with the federal government and the states represented. This agency would be replaced upon the enactment of a federal-interstate compact. The official advisory committee rejected the transitional agency option and decided to seek enactment of a federal-state compact. Amazingly, the four state legislatures and Congress enacted the compact within two years of the completion of the study even though no federal representative participated in the drafting of the compact.74 Section 1.6(a) of the compact stipulates the compact will have a life of 100 years and may be extended. Seven federal agencies had reservations about the proposed commission’s powers that conflict with federal policies, including hydroelectric power policies. On August 15, 1961, U.S. Secretary of the Interior Stewart L. Udall wrote to Senator James O. Eastland, Chairman of the Committee on the Judiciary, expressing his concerns: As a Federal agency, the commission could be outside the jurisdiction of many Federal regulatory agencies. The repealer provision would amend all Federal acts or parts of acts inconsistent with any provision of the compact to the extent necessary to carry out the compact’s provision. In effect, the compact would substitute

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the commission for the Federal and State Governments in planning, operating, controlling, and regulating the water resources of the Delaware River. The breadth of the powers, both State and Federal, which would be conferred upon the compact commission, its distribution of voting strength, and the difficulties inherent in coordination of the commission’s authority with national water resources policies developed by Congress raise serious questions as to the efficacy of the compact and as to its compatibility with appropriate State-Federal relationships.75

Nevertheless, Secretary Udall “reached the conclusion that the urgent needs for resource planning and development in this area of mounting congestion outweigh the negative features of the compact.”76 The compact’s drafters were aware of the objections of the federal agencies and held meetings with executive branch officers and members of Congress prior to the compact’s submission to Congress. An agreement was reached that “federal reservations would be set forth in a new paragraph supplementing the compact, and the compact, together with these federal reservations, would be presented to Congress for enactment.”77 In consequence, the draft compact was divided into two parts. Part I contains the original draft compact and Part II contains the federal reservations. The Delaware River Basin Commission (DRBC) is composed of the governors of Delaware, New Jersey, New York, and Pennsylvania and a federal member appointed by the president of the United States with the advice and consent of the Senate. DRBC is granted by the compact (§3.3(a)) broad powers to allocate water, in accordance with the doctrine of equitable apportionment, among the member states and their subdivisions subject to the restriction that it may not alter the provisions of the 1954 U.S. Supreme Court water allocation decree without the consent of the parties to the degree except “that after consultation with the river master under said decree the commission may find and declare a state of emergency resulting from a drought or catastrophe and it may thereupon by unanimous consent of its members authorize and direct an increase or decrease in any allocation or diversion permitted or released required by the decree.” The compact also grants the commission discretionary authority to acquire or construct all facilities and projects necessary for the compact purposes, including flood control dams, water and waste treatment plants, recreational facilities, trunk water distribution mains, and groundwater recharging. Section 1.5, however, is designed to protect existing agencies by authorizing and directing the commission to use existing governmental agencies to the “fullest extent it finds feasible and advantageous.” Additionally, the commission is required to adopt and, from time to time, review and revise a comprehensive plan for the development of the basin’s water resources. Section 15.1(s) contains an important federal reservation: The president is authorized to “suspend, modify, or delete any provision of the

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comprehensive plan to the extent it affects the exercise of any powers, rights, functions, or jurisdiction conferred by law on any officer, agency, or instrumentality of the United States other than the commission.” Conflicts over water allocation continued. Instead of seeking to modify the U.S. Supreme Court decree, the downriver states and New York in 1980 accepted DRBC’s invitation to enter into good-faith discussions to establish procedures and criteria for management of the river’s waters. After three years of such negotiations, the states reached an agreement on water management.78 New York in the 1970s became convinced it was contributing more than its fair share of funds to the commission in terms of benefits received. A 1980 New York Department of Environmental Conservation report concluded the commission’s fiscal year 1979–1980 program included $196,000 related to New York at a time when New York contributed $270,000 to DRBC.79 Nevertheless, New York continues to be an active member of the commission. Congress, however, eliminated direct federal funding for the commission and the Susquehanna River Basin Commission (see below) in federal fiscal year 1997. Congress has not restored the direct funding, but indirect funding in the form of water quality and other grants has increased significantly in amount.80 Weldon V. Barton reviewed the compact in 1967 and concluded the role played by the commission “is heavily depended upon its relation to the Corps of Engineers construction program on the Delaware and upon the extent to which high-level officials in the national government and the four state signatory to the compact take the agency seriously.”81 Jerome C. Muys conducted research for the National Water Commission and wrote in 1973 “the Delaware River Basin Commission has compiled an impressive record of accomplishments over the past decade, much of which this observer believes would not have resulted but for the existence and efforts of the DRBC.”82 Director N.G. Kaul of the New York State Department of Environmental Conservation’s Division of Water in 2001 reported a potential discharger needs a commission permit and a department permit, and the two agencies have harmonized their permit programs.83 He also reported cooperation with the other compact states is good except during periods of drought, and there has not been a need to seek modification of the 1954 U.S. Supreme Court allocation decree. In his opinion, the commission brings a focus to the river it would not otherwise have and provides the member states with a forum to discuss and resolve issues. Jeffrey P. Featherstone completed in 1999 the most recent major study of the Delaware River Basin Compact and concluded it has achieved most of its goals.84 Specifically, he found the compact had negated the need for the U.S. Supreme Court to resolve interstate disputes in the basin, improved stream-flows, conserved water, reduced groundwater overdrafts, provided

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more reliable supplies of water, abated water pollution, and facilitated intergovernmental coordination, among other accomplishments.85 In addition, Featherstone noted it is desirable to have the federal government as a compact member, but “it is unrealistic to expect that a single federal representative can speak authoritatively for the federal government.”86 Susquehanna River Basin Compact The Delaware River Basin Compact served as the model for the Susquehanna River Basin Compact, the second federal-interstate compact enacted into law by Congress and the Maryland, New York, and Pennsylvania State Legislatures.87 Opposition to the compact was strongest in the Pennsylvania State Legislature where a number of influential members contended the compact would infringe upon the sovereignty of member states. William Voigt, Jr., who was involved in the drafting of the compact, reported in 1972 federal administrators were opposed to the compact because “it could lead to interference in their spending and building and operating. They didn’t want any combination of state and federal officials looking over their shoulders at any stage.”88 In enacting the compact into federal law, Congress specifically stipulated the compact is not to “be construed to relinquish the functions, powers, or duties of” Congress with respect to navigable waters or its powers to regulate interstate and foreign commerce (§1.4). Furthermore, the section reserves to Congress the right to withdraw from the compact or modify it. In common with the Delaware River Basin Compact, the newer compact has a 100-year sunset clause (Art. I, §1.5(a)) unless extended. The Susquehanna River Basin Commission (SRBC) is composed of the governor or designee of each party state and one member appointed by the president to serve at his/her pleasure (Art. II, §2.2). Each member has one vote and no action can be initiated without an affirmative vote of three members. SRBC is given a broad charge: “develop and effectuate plans, policies, and projects relating to the water resources of the basin” (Art. III, §3.1). Specifically, the commission is responsible for allocation of water among the signatory states, flood plain management, water quality, and watershed management. The compact declares its intent “to preserve and utilize the functions, powers, and duties of the existing offices and agencies of government to the extent consistent with this compact” (§3.2). In consequence, the commission focuses on coordination of activities of member states and the federal government relative to drought emergencies, debris management, flood forecasting and warning, sediment buildup behind dams, and water quality. A Congressional Susquehanna River Basin Task Force was organized in 2000 by members of the U.S. House of Representatives from the basin states to promote congressional understanding of issues relating to water resource management in the basin.89

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The commission may assume jurisdiction over any water resource matter the commission, after a public hearing, determines is essential for compact implementation. “If the commission finds upon subsequent hearing requested by an affected signatory party that the party will take the necessary action, the commission may relinquish jurisdiction” (Art. III, §3.5(4)). The commission also is authorized to promulgate, amend, and repeal rules and regulations to implement the compact’s provisions. Regulations mandate that project operators consuming more than an average of 20,000 gallons of water daily over a thirty-day period either must replace the water consumed or stop consumption of Susquehanna River waters during defined periods of low river flow. SRBC’s water withdrawal regulations specify the withdrawal of ground or surface water in excess of 100,000 gallons daily is subject to commission approval. The commission, in common with the Delaware River Basin Commission, has concurrent regulatory powers with member state environmental protection departments. Director N.G. Kaul of the New York State Division of Water reported in 2001 that the commission allows the member states to take enforcement action because they have more resources than the commission.90 Accomplishments of the commission include (1) insertion of provisions on migratory fish restoration and minimum water flow in relicensing of hydroelectric facilities, (2) flood plain mapping of more than 250 flood prone local governments, (3) purchase of water stored in two Corps of Engineer dams for release during low flow periods, (4) improvements in the flood forecast and warning system, (5) installation of an interstate ice jam monitoring system, (6) promulgation of regulations governing withdrawal and consumptive use of water in the river basin not covered by Maryland, New York, and Pennsylvania statutes, (7) creation of an interagency committee to administer a commission-prepared drought coordination plan, (8) monitoring of nutrient trends and other water quality indices in the basin, and (9) coordination of New York and Pennsylvania regional directors’ water management efforts.91 Flood Control and Salmon Compacts Flooding, especially in the spring, was a problem along three major rivers in New England in the years immediately following the end of World War II. The concerned states responded by drafting interstate flood control compacts, and Congress gave its consent to the Connecticut River Flood Control Compact in 1953, the Merrimack River Flood Control Compact in 1957, and the Thames River Flood Control Compact in 1958.92 The three compacts contain similar provisions.

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Connecticut River Flood Control Compact The Connecticut River is the longest river in New England and flows from Canada to Long Island Sound. The Connecticut River Flood Control Compact—Connecticut, Massachusetts, New Hampshire, and Vermont— seeks to ensure adequate storage capacity for impounding the water of the river and its tributaries in order to protect citizens and property from floods, grants the consent of the party states for the construction of specified dams and reservoirs by the United States government, and provides for the downriver states to reimburse upriver states for a specified percentage of the amount of property taxes lost by local governments as the result of the construction of the dams and reservoirs. One clause of Article I of the Connecticut River compact suggests the commission has relatively broad powers: [T]o provide a joint or common agency through which the signatory states, while promoting, protecting, and preserving to each the local interest and sovereignty of the respective signatory states, may more effectively cooperate in accomplishing the object of flood control and water resources utilization in the basin of the Connecticut River and its tributaries.

Article II of the compact creates a twelve-member commission with three members appointed by each party state and stipulates a quorum is a majority of the members from each state and no binding action can be taken without the affirmative vote of at least two members from each state. Article III lists the powers of the commission that generally are conventional ones—the right to sue and be sued, have a seal, enter into contracts, and appoint employees. The article also authorizes the legislatures of the party states, with congressional consent, to delegate additional powers to the commission. The specifically delegated powers do not include powers to accomplish the compact’s purpose listed in Article I. The result has been a degree of confusion relative to whether the commission could become a multiuse control commission. The Connecticut River Flood Control Commission primarily has limited its activities to determining annually the amount downriver states must reimburse upriver states for property tax losses resulting from the construction of flood control dams. The upriver states transfer the reimbursement funds to twenty-one towns that lost property.93 The commission also acts as a watchdog for the U.S. Army Corps of Engineers to ensure flood control facilities are maintained properly, comments on power companies’ dam licensing and relicensing applications, and sponsors public meetings to discuss issues related to dams. The commission’s activities are financed by the following state annual appropriations: Connecticut, $7,500; Massachusetts, $7,500; New Hampshire, $2,000; and Vermont, $2,000.

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Connecticut River Basin Atlantic Salmon Restoration Compact The Connecticut River and its tributaries were important breeding grounds for Atlantic salmon and other migratory fish until dams were constructed on the rivers and many of its tributaries. The Ashuelot River in New Hampshire, for example, has fifty dams. Public pressure for construction of fishways at dams and removal of dams led successfully to the enactment of the Connecticut River Basin Atlantic Salmon Restoration Compact and the grant of congressional consent in 1983.94 The specific origin of the compact is a 1967 agreement—signed by Connecticut, Massachusetts, New Hampshire, Vermont, U.S. Fish and Wildlife Service, and National Marine Fisheries Service—to restore anadromous fish to the Connecticut River.95 The U.S. Fish and Wildlife Service agreed to provide a coordinator and to make a grant of $20,000. Article III provides that each party state shall appoint two members of the commission with one member the executive officer of the state fisheries resources agency and the other member “a citizen who shall have a knowledge and interest in Atlantic salmon” appointed for a three-year term by the governor. The article also designates two additional members: the Director of the Northeast Region of the U.S. Fish and Wildlife Service and the Director of the Northeast Region of the National Marine Fisheries Service. An officer of the U.S. Fish and Wildlife Service has been seconded to serve as the commission’s “executive assistant,” a post similar to that of executive director. The commission is charged by Article IV with conducting studies on the restoration of salmon to the river, making recommendations to the governors of the party states, promulgating regulations governing salmon fishing in the river, and issuing a Connecticut River Basin Atlantic Salmon fishing license for a fee. The regulations and license requirements are enforced by the police agencies of the signatory states. The commission works closely with the U.S. Environmental Protection Agency and the U.S. Corps of Engineers on the assessment of water quality. A degree of success has been achieved by the commission: an annual return of hundreds of sea-run salmon, development of a river-specific egg source, in-stream production of smolts, installation of fish ladders at the first five Connecticut River dams, removal of a dam in Hinsdale, New Hampshire, production of approximately 13.6 million Atlantic salmon eggs, and release of approximately 9.3 million salmon in the fiscal year ending on September 30, 2000. The commission has developed a revised Strategic Plan for the Restoration of Atlantic Salmon to the Connecticut River that reviews current and past restoration programs and presents recommendations for interagency restoration activities in the future. Similar restoration programs are being conducted on two additional New

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England river basins under interstate administrative agreements: The Merrimack River Anadromous Fish Restoration Program (see Chapter 6) and the Pawcatuck River Cooperative Program. These programs demonstrate a common cooperative program may be based upon a compact or an administrative agreement. Northeast Interstate Dairy Compact Testifying before a congressional subcommittee in 1994, Representative Olympia J. Snowe of Maine highlighted the problems of dairy farmers in her state: In 1978, Maine had 1,133 dairy farms. By 1988, that number had declined to 800. In 1991, there were 680. This year, the number is down to 606. These are small family farms; the same circumstances apply to farmers in the other New England States.96

Multiple reasons—including declining milk consumption, increased milk production per dairy cow (from 5,640 pounds per cow in 1950 to 17,222 pounds in 2000), decreasing federal milk price support—were responsible for widely fluctuating milk prices that followed a secular downward trend. New England dairy farmers were particularly unhappy with the federally established minimum milk prices for allegedly failing to take into full account regional differences in milk production costs and maintained these prices were responsible for the financial problems of farmers that made it difficult for them to develop long-range plans and obtain bank loans. In addition, farmers explained the federal minimum prices did not apply to milk used in making cheese, ice cream, and other dairy products. These farmers concluded the solution was an interstate dairy compact with regulatory authority over the New England dairy marketplace. Their efforts were spurred by a 1994 U.S. Supreme Court decision in West Lynn Creamery Incorporated v. Healy overturning a decision of the Massachusetts Supreme Judicial Court upholding the constitutionality of a Massachusetts milk pricing order subjecting all fluid milk sold by dealers to Massachusetts retailers to an assessment with the net amount raised distributed only to Massachusetts dairy farmers.97 The U.S. Supreme Court opined the order violated the interstate commerce clause by imposing a tax on milk imported into the commonwealth. The New England Governors’ Association was united in support for the compact as a mechanism for restoring state control over fluid milk. Lobbying for the compact was successful as each New England State Legislature enacted the compact by 1993, and U.S. Senator Patrick Leahy of Vermont played the lead role in obtaining congressional consent in 1996 limited to a three-year period because of the compact’s controversial na-

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ture.98 The consent was extended for two years in 1999. Delaware, Maryland, New Jersey, New York, Pennsylvania, and Virginia are authorized (Art. VIII, §20) to join the compact provided they are contiguous to a participating state at the time of entry and Congress grants its consent. The congressional consent stipulated the compact would become effective if the U.S. Secretary of Agriculture finds a compelling public interest for the compact. The secretary found such a compelling need on August 28, 1996.99 Although Congress did not grant consent for New York to join the compact, approximately 1,200 New York farmers participate in the compact because they ship milk into New England.100 Twenty-five states have enacted similar compacts: Inter-Mountain Compact, Pacific Coast Compact, and Southern Dairy Compact. However, none has received the consent of Congress. Article I of the Northeast Dairy Compact declares the mission of the compact commission “is to take such steps as are necessary to assure the continued viability of dairy farming in the northeast, and to assure consumers of an adequate local supply of pure and wholesome milk.” Article III established a commission composed of three to five members from each state, including at least one farmer and one consumer representative, for a total of twenty-six commissioners. Commission members serve without compensation unless their respective state decides to compensate them. The effectiveness of the commission has been attributed in part to the adoption of the principle of one vote per state that protects state sovereignty in lieu of decision making by a majority vote of commission members.101 The commission, by formal rulemaking, regulates the farm price of Class I (fluid) milk after receiving testimony relative to the price that would produce a reasonable return to the producer and the distributor, and the purchasing power of consumers. A price regulation, to be effective, must be approved by farmers in a referendum, a two-thirds vote of the members of the commission, and the affirmative vote of an affected state(s). The latter requirement allows a state to opt out from a regulation without creating a problem. Class I milk processors are required to pay to the commission each month the difference between the federal market-order price and the commission’s over-order price based upon the volume of their sales. The commission uses the revenue to finance its activities; a reserve fund supporting the Women, Infants, and Children [WIC] program for low-income families and the school lunch and breakfast program; other reserve funds; and pay farmers on the basis of the milk they produced.102 Should the federal minimum milk price exceed the compact price, as occurred for a short period in 1998, the compact price is superseded.

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A Controversial Compact The compact has been controversial since its initial proposal. Testifying at the 1994 congressional subcommittee hearing, Jim Erickson of the Milk Industry Foundation maintained [t]he proposed Northeast Dairy Compact seeks, for the first time in U.S. history, Congressional blessing and approval for the establishment of a customs duty or tariff for products entering a select group of states from other states in the Union. . . . Proponents’ request for approval of regional economic protectionism is unlike any interstate compact previously submitted to, or approved by Congress.103

The New York Times editorialized in 1996: The galling aspect is that the Senate rejected the compact when it came up for a vote earlier this year and the House never voted on it. But Mr. Leahy shoved the provision into the farm bill before it emerged from conference. To reject the compact Congress would have had to reject the entire farm bill. That did not happen. Even so, under the law Mr. Glickman could have blocked the compact by withholding his approval. Instead he chose to protect Mr. Leahy, and his cavalry of dairy farmers, over the interests of everyone else in the region.104

Antitax organizations attacked the compact on the ground it imposed a tax on milk. Consumer organizations opposed the compact because it would create a cartel that would increase retail milk prices and emphasized the additional burden placed on low-income families in general and the elderly in particular. The commission responded its WIC and school breakfast-lunch programs benefit these families. Critics also maintained the resulting higher prices would reduce milk sales, thereby injuring small farmers, and the principal beneficiaries would be large commercial farmers. Furthermore, it was alleged dairy processors and retailers would be harmed because they receive no compensation from the commission. The Milk Industry Foundation challenged the compact by alleging the required consent to the compact had not been granted because Congress improperly delegated to the Secretary of Agriculture the authority to make the decision whether the compact should become effective. Judge Paul L. Friedman of the U.S. District Court for the District of Columbia upheld the delegation in 1998 and the U.S. Court of Appeals for the District of Columbia Circuit in the same year affirmed his decision.105 New York State Dairy Foods, Incorporated, a non-profit trade association, and seven fluid milk processors brought a constitutional challenge to the validity of the compact on the grounds it violates the interstate commerce, due process of law, and equal protection of the laws clauses of the U.S. Constitution. The challenge was rejected by the U.S. District Court for the District of Massachusetts in 1998, its decision was affirmed by the U.S.

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Court of Appeals for the First Circuit in 1999, and the U.S. Supreme Court in 2000 rejected a petition for the issuance of a writ of certiorari.106 The compact commission asserts farmers benefit from greater stability and potentially higher prices, consumers benefit from greater price stability in supermarkets, the recreation and tourist industries are strengthened by preservation of open space resulting from promoting viable farms that support local business firms and professionals, and the environment is enhanced as the result of preservation of dairy farms.107 This regional interstate compact obviously promotes cooperation among member states, but in the process produces regional conflict. Midwestern states strongly opposed the compact from the date of its original proposal. The 1999 congressional debate on extension of the compact revealed regional divisions with the southern and northeastern states united against the midwestern states.108 The compact extension bill authorizes sixteen southern states to enter into a similar dairy compact subject to congressional consent, but no such compact has received such consent. Studies of the price impact of the compact indicate it has been considerably less than opponents suggested would occur. Prices did increase in July 1997, the first month of the compact’s operation, but subsequently declined slightly. University of Wisconsin economist Bob Cropp in 1999 estimated the retail price of milk increased by approximately ten cents per gallon and added the compact “achieved what it was supposed to do, which is to provide some price stability.”109 On the other hand, professor Ken Bailey of Pennsylvania State University in 2000 reported the price of milk had increased by twenty-four cents per gallon and seventeen cents of the increase was attributable to the compact.110 Bailey also found milk consumption remained steady and milk production increased by 2.9 percent. A major 2001 report, by Ronald W. Cotterill and Andrew W. Franklin of the University of Connecticut’s Food Marketing Policy Center, concluded the compact increased farm income by $128.5 million and forced milk processors to pay farmers an additional 6 cents per gallon.111 The authors highlighted the recent mergers of several milk processing firms and dominance of a small number of large processors. They concluded “the major policy issue now facing New England consumers of fluid milk is not the Northeast Dairy Compact. It is the exercise of market power by the region’s leading retailers and milk processors.”112 Retail milk prices on average increased by twenty cents per gallon.113 The U.S. General Accounting Office released in September 2001 a report concluding the Northeast Interstate Dairy Compact did not increase the net cost of the federal government’s milk price support system, but probably increased the cost of the federal Food Stamp Program.114 The compact commission is required to compensate the U.S. Department of Agriculture for any increase in the cost of the milk price support program and such compensation totaled $3.2 million at the end of federal fiscal year 2000.

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The report reveals the compact covers only approximately 3 percent of the national milk supply and has had a minimal effect on farm milk prices. An expanded compact and the proposed southern dairy compact together would have a greater impact on prices. Milk processors in 1998 lobbied unsuccessfully the Massachusetts General Court to enact a bill repealing adoption of the compact. However, they achieved a degree of success in May 2000 when the Massachusetts Senate voted, 22 to 17, to withdraw from the compact because approximately one-half of the milk in New England is consumed in the commonwealth and its consumers contributed approximately $15 million annually to the compact commission, but the state’s farmers received less than $3 million annually.115 The compact would be replaced by a $3 million trust fund to help the commonwealth’s 350 dairy farmers. In June, 105 of the 158 members of the House of Representatives signed a letter supporting the compact and Governor Paul Cellucci threatened to veto any bill withdrawing Massachusetts from the compact.116 Compact withdrawal supporters decided to end their efforts because they lacked the votes to override a veto even if the House of Representatives supported the withdrawal. The compact expired on October 1, 2001, because Congress did not act on a bill to extend the grant of congressional consent. The failure to act on the bill is attributable in part to the terrorists’ attack on the World Trade Center in New York City on September 11, 2001. It is doubtful, however, the bill would have been extended because of the strong opposition of midwestern representatives and senators and the lobbying of the milk processors. The demise of the compact produced no immediate effect on milk prices because the federal regulated milk prices remained at a high level and the compact commission was not paying premiums to dairy farmers. Energy Compacts Congress in 1946 preempted totally the regulation of atomic energy for national defense purposes, but in 1954 authorized the civilian use of such energy.117 The 1954 act generated state interest in employing the interstate compact device to promote the use of atomic energy and thereby spur economic development. After relatively extensive negotiations two such concordats were enacted by the concerned state legislatures and received congressional consent. Southern States Energy Compact This compact is traceable to the Southern Interstate Nuclear Compact, enacted in 1960 by the concerned state legislatures, that received congressional consent in 1962.118 Article I of the compact declares “[t]he party states recognize that the proper employment of nuclear energy, facilities,

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materials, and products can assist substantially in the industrialization of the South and the development of a balanced economy for the region.” Article 2 created the Southern Interstate Nuclear Board (now Southern States Energy Board) composed of one member from each party state appointed and subject to removal in the manner provided by state law. Two or more party states are authorized by Article VI to enter into supplementary administrative agreements to undertake projects beyond those authorized by the compact. Such agreements must specify their purposes, duration, termination or withdrawal procedures, methods of financing projects, and allocation of costs among party states. The party state legislatures enacted in 1978 a modified concordat— Southern States Energy Compact—establishing the Southern States Energy Board.119 A resolution (H.R. 3627) granting congressional consent to the new compact was introduced in the U.S. House of Representatives in 1985, but has not been acted upon. The board was advised by its attorneys congressional consent is not required.120 Article II stipulates the board is composed of three members from each party state, including the governor and one member representing each house of the state legislature. Article VIII identifies seventeen states, any contiguous state, Puerto Rico, and the Virgin Islands as eligible for membership. Currently, sixteen states and two territories are members. A member state may withdraw by repealing its enactment of the compact provided the governor notifies in writing the governors of each of the other member states of the repeal of the compact and intention to withdraw. Article IX authorizes the president to appoint to the board a nonvoting representative of the federal government. The board has been given a broad mandate to engage in activities promoting energy conservation, industrialization, and development of a balanced economy (Art. I). The board (1) is the manager of the Southeastern Regional Biomass Energy Program that encourages development and use of technologies increasing the use of biomass for energy production, (2) has formed, with the University of Tennessee, the Southern Water Supply Roundtable, (3) sponsors the Southern States Waste Management Coalition, (4) cooperates with the U.S. Department of Energy in planning for transportation of transuranic waste from the region to the Waste Isolation Pilot Plant in New Mexico, (5) formed the Southern Emergency Response Council to cope with a radiological incident, and (6) operates a Task Force on Electric Utility Restructuring.121 Western Interstate Energy Compact Eleven western states are members and three western Canadian provinces are associate members of this compact. Congress in 1970 granted its consent to the Western Interstate Nuclear Compact (now Western Interstate Energy Compact) that authorizes the president to appoint an ex officio board member.122 The compact has a purpose similar to that of the South-

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ern States Energy Compact—enhancing cooperative state efforts promoting economic development. The board works closely with the Western Conference of Public Service Commissions and the Western Governors Association. Fisheries Compacts Fisheries are important natural resources, and a number have been threatened with extinction. Congress responded to the threats by granting its consent in 1942 to the Atlantic States Marine Fisheries Compact enacted by fifteen state legislatures (see below), in 1947 to the Pacific Marine Fisheries Compact (now Pacific States Marine Fisheries Compact) enacted by five state legislatures, and in 1949 to the Gulf States Marine Fisheries Compact enacted by five state legislatures.123 It should be noted the International Board of Inquiry for the Great Lakes Fisheries issued a 1943 report containing a supplemental report by the U.S. members detailing the obstacles to enactment of an interstate compact and concluding “the type of convention similar to that between the two Governments for the protection of migratory birds is preferable.”124 Although no action was taken on the proposal for many years, a Great Lakes Fishery Commission was established by the 1955 Convention on Great Lakes Fisheries between Canada and the United States. The commission in 1980 prepared a Joint Strategic Plan for Management of Great Lakes Fisheries that was signed by each of the state, provincial, federal, and tribal natural resource agencies in the Great Lakes basin. Potomac River Fisheries Compact Attempts were made by Maryland and Virginia without success to reach an agreement on fishing and navigation on the Potomac River and Chesapeake Bay in 1777 and 1784. In 1785 under the Articles of Confederation and Perpetual Union, however, the first interstate fisheries compact was entered into by Maryland and Virginia and provided for the establishment of fishing rights and navigation rules on the Chesapeake Bay and the Potomac River.125 Section 7 of the compact declared the right to fish in the river is to be enjoyed equally “by citizens of both states.” Section 8 of the compact stipulates all laws and regulations necessary for the preservation of the stock of fish “shall be made with the mutual consent and approbation of both states.” Disputes over oysters, termed the “Oyster War,” erupted in the 1880s and continued until section 8 was employed as the basis for the Potomac River Compact of 1958 creating the Potomac River Fisheries Commission, effective in 1962, after enactment by the two state legislatures and grant of congressional consent.126 The new compact was the result of Maryland’s attempt to withdraw unilaterally from the original compact, Virginia’s original jurisdiction suit against Maryland, and

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the U.S. Supreme Court staying the case while negotiations between the two states took place. Article IX of the new compact stipulates it replaces the 1785 compact. The preamble to the compact refers to certain 1785 compact provisions and the two-state agreement that “the fisheries resources can be best achieved by a commission comprised of representatives of both Maryland and Virginia, charged with the establishment and maintenance of a program to conserve and improve these resources.” Section 1 of Article I creates a commission with four members from each state, including the secretary of the Maryland Department of Natural Resources and three members of the Virginia Marine Resources Commission. The Maryland governor appoints three members with the consent of the Senate and the Virginia governor appoints one member. Section 2 of Article III authorizes the commission to promulgate regulations prescribing “the type, size, and description of all species of finfish, crabs, oysters, clams, and other shellfish which may be taken or caught . . . the places where they may be taken or caught, and the manner of taking or catching.” Section 4 allows the commission to issue necessary licenses and impose fees. Law enforcement officers of the two states possess concurrent power to enforce the commission’s orders and regulations. Atlantic States Marine Fisheries Compact Congress in 1942 granted its consent to this compact, enacted by fifteen state legislatures, but placed a time limit on the consent that was removed in 1950.127 Article XII authorizes a member state to withdraw from the compact by sending six months advance notice of its intention to the other party states. Florida withdrew from and rejoined the compact on several occasions. Virginia in 1995 contemplated withdrawing from the compact because the commonwealth’s fishing quotas, particularly for striped bass, were considered to be too low.128 Article III provides for each member state to appoint three representatives to the Atlantic States Marine Fisheries Commission. One member must be the “executive officer of the administrative agency . . . charged with the conservation of the fisheries resources.” The second commission member must be a state legislator appointed under one of several appointment plans. The third member, appointed by the governor, must “be a citizen who shall have knowledge of the interest in the marine fisheries problem.” Article VI is somewhat unusual in providing the primary research agency of the commission is the U.S. Fish and Wildlife Service of the Department of the Interior. Article IV assigns to the commission responsibility for (1) ascertaining methods promoting “the conservation of, the prevention of the depletion and physical waste of the fisheries, marine, shell, and anadromous of the

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Atlantic seaboard” and (2) recommending to the governors and legislatures of the compact states policies to conserve marine resources. The compact grants no enforcement powers to the commission, but compact amendment number one, enacted in 1950, allows two or more states to designate the commission “as a joint regulatory agency with such powers as they may jointly confer from time to time for the regulation of the fishing operations of the citizens and vessels of such designating States with respect to specific fisheries in which such States have a common interest.” Of greater importance is a 1986 congressional amendment of the Atlantic Striped Bass Conservation Act requiring individual states to comply with the commission’s management plan or be subject to a striped bass fishing moratorium imposed by the U.S. Fish and Wildlife Service “on waters more than three miles offshore of a non-complying state.”129 The Atlantic Coastal Fisheries Cooperative Management Act of 1993 grants the commission authority to establish catch limits on near shore (within three miles) fish.130 Responding to a precipitous decline in the number of horseshoe crabs, the commission established quotas for member states, and only Virginia refused to comply. U.S. Secretary of Commerce Norman Y. Mineta on August 8, 2000, ordered Virginia to recognize the emergency and reduce its catch under the threat of a moratorium being imposed.131 On October 17, 2000, the commission added an addendum to its interstate fishery management plan allowing for the voluntary transfer of horseshoe crab quotas among member states. The National Marine Fisheries Service on October 20 delayed implementation of the federal horseshoe harvesting and possession moratorium in Virginia’s waters until October 27 to afford the commonwealth the opportunity to come into total compliance with the commission’s fishery management plan.132 The Virginia Marine Resources Commission on October 20 promulgated new rules bringing the commonwealth into compliance with the plan. Other states have been found to be out of compliance with the fishery management plan, but no moratorium has been imposed on any member state to date. Connecticut Attorney General Richard Blumenthal, however, filed suit in the U.S. District Court in Hartford in 2000 challenging the MagnusonStevens Act of 1976 that established regional fisheries councils (see Chapter 6) and the 1993 act on the ground they established a system violating “basic constitutional rights by giving fishermen and officials from competing states the sole power to dictate quotas for Connecticut fishermen.”133 Blumenthal also alleged the acts unconstitutionally force Connecticut to participate in a system discriminating against the state’s citizens. In 2001, he withdrew his challenge to the 1993 act, but is continuing to challenge the constitutionality of the Magnuson-Stevens Act.134 Weldon V. Barton in 1967 wrote the commission “might be appropriately characterized as a quasi-legal association of the major commercial fishery groups and interests in the United States rather than an autonomous

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governmental institution.”135 Director Gerald Barnhart of the New York State Division of Fish, Wildlife, and Natural Resources reported in 2001 the fisheries compacts entered into by New York are above average in effectiveness, and the most conflict is generated by the Atlantic States Marine Fisheries Commission over the fishing allocations for species.136 Gordon Colvin of the same division works closely with the commission and in 2001 noted it has made the hard decisions that needed to be made and fisheries are improving.137 There is an over-fished problem, but there has been a complete rebuilding of coastal stocks of striped bass and improvements in other fish species. The professional fisheries managers and the industry managers have major differences on certain issues, but they work together on other matters. The commission has industry advisory boards and representatives of the fishing industry attend and speak at commission meetings on agenda items. Low-Level Radioactive Waste Compacts The Atomic Energy Act of 1946 totally preempted state responsibility for regulating ionizing radiation until a 1959 amendment authorized the Atomic Energy Commission (now Nuclear Regulatory Commission) to enter into agreement with states allowing them to assume certain regulatory responsibilities; twenty-nine states have entered into such agreements.138 Six commercial low-level radioactive waste disposal sites were in operation by 1971, but three sites were closed by 1979, leaving only sites in Nevada, South Carolina, and Washington. These states complained they should not be responsible for disposal of wastes generated throughout the nation and suggested each state should be responsible for such waste generated within its borders and encouraged to form interstate waste disposal compacts. The National Conference of State Legislatures and the National Governors’ Association supported the position of the three states. Congress responded by enacting the Low-Level Radioactive Waste Policy Act declaring “each State is responsible for providing for the availability of capacity either within or outside the State for the disposal of low-level radioactive waste generated within its borders” with the exceptions of such wastes generated by national defense or federal research activities.139 The act encouraged the formation of interstate disposal compacts by authorizing Nevada, South Carolina, and Washington to close their sites, effective January 1, 1986, to waste from sister states unless they were parties to compacts entered into by one of the three states. The difficulties experienced by compact commissions in locating suitable sites for waste disposal facilities induced Congress in 1985 to amend the act to extend the exclusion date to January 1, 1993.140 South Carolina in 1994 decided to close its disposal site to sister states and this action stimulated the formation of compacts. The site was reopened in 1995 to all

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states except North Carolina after South Carolina withdrew from the Southeast Compact, but sister states will be excluded in 2008 with the exceptions of Connecticut and New Jersey that joined with South Carolina to form the Atlantic Low-Level Nuclear Waste Compact.141 Forty-four states have entered into ten compacts with renewable five-year congressional consent (see Figure 4.2). Six states, the District of Columbia, and Puerto Rico are not members of a compact. Michigan was expelled from the Midwest Compact because the other compact members concluded the state had established criteria precluding the state from locating a suitable site. Although compacts typically involve contiguous states, the 1998 Texas Low-Level Radioactive Waste Disposal Compact has been entered into by Maine, Texas, and Vermont.142 Interestingly, Nebraska voters in 1998 decided, by a margin of 414,394 to 225,174, not to withdraw from the Central Interstate Low-level Radioactive Waste Compact, yet the 1999 state legislature enacted a bill providing for the state’s withdrawal from the compact.143 The U.S. General Accounting Office (GAO) in 1999 reported none of the compacts had developed a new disposal facility primarily because of strong opposition by the general public and political leaders.144 No state currently is engaged actively in developing a disposal facility. The report also attributed the inaction to declining waste volumes, cost of developing new facilities, and availability of one to three disposal facilities. GAO outlined three alternative approaches to managing low-level radioactive waste.145 The first is retention of the compact approach. Advocates of this approach stress the importance of states exercising control over such waste and the flexibility of the compacts in responding to changing circumstances such as regulating the importation and/or exportation of wastes within each region for disposal, storage, or treatment, and to realign the compacts. The Northwest Compact Commission, for example, signed in 1992 a contract with the Rocky Mountain Compact to dispose of waste generated in its region at the Richland site in Washington. The second approach is congressional repeal of authority for the interstate compacts on the grounds ten regional compact disposal facilities are too many in view of the relatively limited amount of such waste generated and such abolition would produce a national market for commercial waste disposal firms including the three firms that have demonstrated interest in disposing of such waste. Adoption of this approach might result in less immediate disposal capacity since Washington has threatened to close its Richland facility should it lose authority to exclude out-of-region waste. Furthermore, confining the role of states to licensing and regulating facilities proposed by private firms might lead states to erect “administrative barriers to new disposal facilities within their borders. This phenomenon is illustrated by recent experiences in Colorado, Texas, and Utah where

Source: Low-Level Radioactive Wastes: States Are Not Developing Disposal Facilities (Washington, DC: U.S. General Accounting Office, 1999), p. 21.

Figure 4.2 State Membership in Low-Level Radioactive Waste Compacts

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commercial waste management companies were unsuccessful in obtaining political and/or regulatory approvals from state and/or local governments for their proposed new disposal facilities.”146 The third alternative would be a congressional directive making the U.S. Department of Energy responsible for disposal of commercially generated waste. Advocates are convinced states would frustrate the development of new disposal facilities under either of the other two approaches and the department would not be burdened since the amount of low-level radioactive waste is relatively small and its facilities at Hanford and the Nevada test site have large unused capacities. Critics point out there would be no incentives for Nevada and Washington to agree to this approach that would place an unfair burden on them. The Southwestern Low-Level Waste Compact differs from the other compacts in that it was formed after the California State Legislature enacted a statute assuming responsibility for disposal of waste generated within the state. In consequence, the compact commission has played no role in locating a site for a disposal facility and the commission’s principal function is authorizing the exportation of waste from the region to disposal facilities in South Carolina and Utah.147 Multistate Tax Compact Taxation of multistate and multinational corporations is exceptionally complicated in a federation since each state has considerable discretionary authority to devise its own taxation system. Unnecessary compliance burdens may be placed upon business firms, and they may be subject to multiple taxation. The Multistate Tax Compact is in part a 1967 response of initially eight states to the 1965 recommendations of the Willis Committee that Congress should impose apportionment rules, tax base definitions, and tax jurisdiction standards on states.148 The compact also was a response to the U.S. Supreme Court’s 1959 decision in Northwestern States Portland Cement Company v. Minnesota holding a state may tax the net income of a foreign corporation (one chartered in a sister state) provided the tax is nondiscriminatory and is apportioned fairly on the basis of the corporation’s activities with a nexus to the state.149 The current compact membership is twenty-one states and the District of Columbia. Twenty-one additional states are associate compact members, and three other states participate in various commission projects. The constitutionality of the Multistate Tax Compact was challenged in 1978 in United States Steel Corporation v. Multistate Tax Commission on the ground Congress had not granted its consent for the compact, but the U.S. Supreme Court rejected the challenge by opining the compact did not “authorize the member states to exercise any powers they could not exercise in its absence.”150

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Article IV of the compact incorporates the Uniform Division of Income for Tax Purposes Act that provides a broad taxation framework. One of the compact commission’s first activities was to develop regulations to effectuate Article IV. The first set of such regulations was issued in 1971 and revised in 1973. These detailed regulations facilitate the determination of the state and local government tax liability of multistate taxpayers by helping to ensure the equitable apportionment of tax bases. The commission has drafted the Uniform Protest Statute and Uniform Principles Governing State Transactional Taxation of Telecommunications, and Recommendation Formula for the Apportionment and Allocation of Net Income of Finance Institutions.151 The commission also drafted model regulations for corporate income tax allocation and apportionment; special industry rules for airlines, construction contractors, publishing, radio and television broadcasting, railroads, and trucking companies; and recordkeeping regulations for sales and use tax purposes.152 These regulations are designed to eliminate or reduce duplicative taxation. In addition, the commission has a sales tax simplification project, and it should be noted a noncompact group of twenty-nine states has launched a project—Streamlined Sales Tax Project—that is examining taxation of Internet sales (see Chapter 6). The commission and the Committee on State Taxation have developed an alternative dispute resolution program to provide a voluntary, cooperative approach to resolving tax controversies among states, thereby reducing the cost and risks of litigation. The commission’s voluntary National Nexus Program allows taxpayers simultaneously to resolve their potential tax liabilities with two or more states. Under this program, a business firm anonymously may contact any or all of the program member states and propose settlement of potential state sales/use tax, and/or income franchise tax liabilities that are products of their activities within the states in the past. The commission staff carries out most of the work without charge to the taxpayer who also benefits from resolving disputes before the concerned states impose prior year assessment of taxes, interest, and penalties. A taxpayer may request a joint audit conducted by the commission on behalf of the participating states. The commission also provides state sales and use tax vendor registration forms and instructions to requesting taxpayers and has developed a Uniform Sales and Use Tax Certificate accepted by thirtysix states. The commission and the Federation of Tax Administrators jointly publish TaxEXPRESS, a weekly electronic newsletter sent by E-mail to state tax commissioners, and jointly formed TaxNet Governmental Communications Corporation, a provider of electronic services to state tax departments.

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New England Interstate Library Compact The six New England State Legislatures in 1963 enacted an Interstate Library Compact establishing the New England Library Board.153 In 1967, the attorney general and compact administrator in each party state signed an administrative agreement creating the New England Interstate Library District to implement the compact. The board in 1970 established the New England (now Northeast) Document Conservation Center to assist in the preservation of historical state and local government documents and other papers (see Chapter 6). Ten years later, the board assumed responsibility for the New England Library Jobline. State laws commonly authorize the establishment of an interstate library district. Although the New York State Legislature authorized the creation of such districts in 1963, no such district has been organized to date.154 Northeastern Interstate Forest Fire Compact Congress in the Weeks Act of 1911 granted its consent in advance to states to enter into compacts “for the purpose of conserving the forests and water supply” of the compacting states.155 No compact was formed under this act. Five New England and the New York State Legislatures, however, enacted in 1949 the Northeastern Interstate Forest Fire Compact, a mutual aid agreement, and Congress granted its consent in the same year.156 Rhode Island joined the compact in 1950. Article II stipulates a contiguous state may become a member of the compact and added a contiguous Canadian province may become a party to the compact with the consent of Congress. The compact is the direct result of disastrous forest fires in Maine in 1947 that burnt more than 250,000 acres, and resulted in a conference of governors who decided to employ the interstate compact device to address future forest fires.157 Congress in 1951 specifically granted its consent to any contiguous Canadian province to join the concordat.158 Quebec, New Brunswick, and Nova Scotia became members in 1969, 1970, and 1997, respectively. The Green Mountain and the White Mountain National Forests became compact members in 1997. Each member pays a fee based on its proportion of the protected 66,047,101 acres. Article III establishes a commission composed of three representatives from each member jurisdiction. One member must be the state forester or other officer responsible for forest fire control. A second member must be a legislator, and the third member is appointed by the governor as his/her representative. Article VI authorizes the commission to request the U.S. “Forest Service to act as the primary research and coordinating agency,” and such assistance is provided by the service. The commission has formed

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five working teams: training, prevention, equipment, aviation, and fire weather. Commission activities during fiscal year 2000 included a prescribed burn/ training exercise in New Brunswick, provision of helicopters to help extinguish a fire in the Adirondack Mountains in New York, a winter training meeting in Portland, Maine, and the compact fire plan and web site development initiative.159 The commission’s fiscal year 2001 budget was only $41,950.160 Although the original purpose of the compact was the sharing of firefighting equipment, one of its main purposes today is the training of fire fighters in accordance with guidelines issued by the U.S. Forest Service.161 Relations with states in the Northeast, including nonmembers New Jersey and Pennsylvania, are excellent.162 The commission also has entered into a cooperative agreement with the U.S. Forest Service. A 1999 “Needs Assessment” revealed compact members generally are satisfied with the commission, noted “interagency cooperation is lacking within states/provinces,” and recommended actions to improve the effectiveness of the compact, including enhanced training support, publication of a newsletter, creation and maintenance of a web site with links to each member’s and other wildfire-related sites, establishment of standards for personal protective equipment, and incorporation of all compact protocols and procedures in the operations manual.163 In 2000, New York entered into a cooperative fire control agreement with the U.S. Forest Service superseding a 1989 agreement and providing for (1) development of an annual operating plan, (2) mutual aid in fighting forest fires in the state or on federal lands, and (3) reimbursement of the agency providing the assistance. New York fire fighters have been sent to federal lands in western states during the summer months in recent years to help suppress fires, and the Forest Service reimbursed the state for expenses incurred.164 There are three other regional fire protection compacts. The Middle Atlantic States Forest Fire Protection Compact has been enacted into law by the Delaware, Maryland, New Jersey, and Pennsylvania State Legislatures.165 Oklahoma and Texas entered into the South Central Interstate Forest Fire Protection Compact.166 And Georgia and South Carolina are members of the Interstate Forest Fire Protection Compact (Southeastern).167 Oil and Gas Compact The discovery of large oil fields in Oklahoma and Texas in the late 1920s led to a sharp fall in oil prices and demands from a number of oil industry executives that Congress empower the secretary of the interior to control the oil industry and establish minimum prices.168 An interstate compact was suggested as an alternative to federal control. Six state legislatures—Col-

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orado, Illinois, Kansas, New Mexico, Oklahoma, and Texas—enacted the Interstate Oil Compact in 1935 (now Interstate Oil and Gas Compact), and Congress in the same year granted its consent limited to two years. Congressional consent periodically was granted, and in 1979 Article VIII of the compact was amended to provide it “shall continue in effect until Congress withdraws its consent.”169 Currently, thirty states are members and seven states are associate members (states with prospects for oil or gas production). Article II of the short compact simply declares its purpose “is to conserve oil and gas by the prevention of physical waste thereof from any cause.” Article III binds each party state to enacting laws to accomplish this goal “within a reasonable period of time,” and Article IV stipulates any “oil produced in violation of its valid oil and/or gas conservation statutes or any valid rule, order, or regulation promulgated thereunder, shall be denied access to commerce.” Article VI established the Interstate Oil Compact Commission (now the Interstate Oil and Gas Compact Commission) composed of one representative from each member state. The commission lacks regulatory powers, but is authorized “to recommend the coordination of the police powers of the several States . . . to promote the maximum ultimate recovery from the petroleum reserves of said States.” Writing in 1957, Richard H. Leach reported “[v]irtually no one was willing to prophesy success for a Compact which attempted to settle so complex a problem with nothing but persuasion.”170 Yet he concluded “it is the most powerful and respected agency in the oil and gas industry.”171 Erich W. Zimmermann in the same year described the major contribution of the commission as “molding public opinion or disseminating information, with a view to creating an intellectual climate favorable to sound and constructive conservation laws and practices.”172 Charges were made over the years the commission was dominated by the oil industry. A 1955 joint resolution extending the life of the compact for four years was amended to require the attorney general of the United States to report annually to Congress whether the commission actions created or perpetuated a monopoly.173 Congress in 1976 directed the attorney general to determine whether the commission’s advisory committees “could tend to create or maintain situations inconsistent with the antitrust laws of the United States.”174 The attorney general issued a report in 1979 that concluded “it cannot be said that the industry representatives unduly influence the thrust of the position papers developed, since, as we have seen, virtually all the influential subcommittee members appear to view issues from the same general perspective.”175 Director Bradley Field of the New York State Department of Environmental Conservation reported in 2001 the commission reflects more fully the oil industry’s position on oil and gas issues without advocating oil and gas development for its own sake.176 He added commission meetings help agency personnel to gain a better under-

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standing of developmental and environmental issues affecting New York and other states. The commission today promotes achievement of three goals: (1) responsible exploration for and production of oil and gas resources, (2) assisting states to protect the environment, and (3) promotion of a national energy strategy advocating use of domestic oil and gas resources.177 With respect to the second goal, the commission has published guidelines for state oil and gas regulatory programs.178 Pest Control Compact Plant pests—10,000 or more species of insects, plant diseases, weeds, and other organisms—do not respect state boundary lines and annually are responsible for billions of dollars of damages to crops and forests in the United States. The problem has become more serious during recent decades because of the vast amount of international containerized cargo that may harbor plant pests unloaded at U.S. ports and transported throughout the nation. To address the problem, the Council of State Governments took the lead in the development of the Interstate Pest Control Compact that became effective in 1968 and currently has thirty-two members. Article V of the compact creates a governing board, composed of the compact administrator in each state, that meets at least once each year to determine the policies of the compact’s insurance fund to address: • new and economically significant destructive plant pest outbreaks; • plant pest infestations outside the control or means of a single jurisdiction; or • destructive single-state outbreaks which could affect other states if allowed to spread.179

A $1 million insurance fund was established by a one-time contribution by each member state. If the fund should become depleted because of the cost of a containment or eradication program, each member will be assessed its proportionate share to restore the fund. The compact authorizes a party state to apply to the insurance fund to assist the state’s pest control or eradication programs, and in exceptional cases to assist pest control activities in a nonmember state. Party states are expected to maintain their existing pest control programs with insurance funds used to supplement the programs. Examples of the use of such funds include Florida’s efforts to retard the spread of the tomato yellow leaf curl virus, Vermont’s program to eradicate the European strain of scleroderris canker that attacks evergreen trees, Oregon’s program to eliminate the apple tree maggot, and Georgia’s initiatives to control an infestation of gypsy moths. A total of

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twenty-two grants had been made as of July 1, 2000.180 New York is not a member of the compact, but it received $100,000 from neighboring states to help eradicate the Asian long horn beetles and prevent their spread to the donor states.181 Solid Waste Compact The New Hampshire–Vermont Interstate Solid Waste Compact received congressional consent in 1982 and is an unusual one authorizing one or more municipalities in each of the two states to enter into an administrative agreement with one or more municipalities in the other state for the construction and operation of a resource recovery facility or sanitary landfill or both, subject to the approval of the U.S. Environmental Protection Agency (EPA), without creating a governing commission.182 In 1981, a group of Vermont towns, acting under a state enabling statute at their respective annual town meetings and under pressure from the state to close landfills, organized the Southern Windsor/Windham Counties Solid Waste Management District. Similarly, the city of Claremont and a group of New Hampshire towns, acting under a state enabling statute at their respective annual town meetings and state pressure, organized the Sullivan County Regional Refuse Disposal District. The two districts in 1989 signed the New Hampshire–Vermont Solid Waste Project Cooperative Agreement, approved by EPA, stipulating the project would be under the control of joint meetings of the Sullivan County Regional Refuse Disposal District Committee and the Southern Windsor/ Windham Counties Solid Waste Management District Board of Supervisors. This arrangement is similar to the joint meetings of the advisory New Hampshire and Vermont Connecticut River Commissions that informally have been holding joint meetings since 1999 (see below). Each district holds meetings, and the governing bodies of the two districts meet jointly once or twice annually. Currently, one New Hampshire city and fourteen towns, and fourteen Vermont towns participate in the interstate project. The town of Unity, New Hampshire withdrew from the project during the eighteen month withdrawal period subsequent to the signing of the agreement. The city of Claremont and the town of Newport in New Hampshire had high property taxes when the project was initiated and viewed the incinerator and ash landfill as sources of revenue. The incinerator is located in Claremont and the landfill is in Newport. Vermont towns appear to be pleased with the interstate administrative agreement as their District Board of Supervisors meetings tend to be routine with only one or two citizens in attendance. On the other hand, there is unhappiness with the agreements in Claremont and several New Hampshire towns. Meetings of the New Hampshire District Committee tend to be

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rancorous and disruptive with many inappropriate personal comments made and police called to restore order.183 Opponents come to meetings in costumes, make long speeches, and picket the meetings. Claims are made the incinerator is filthy and is “making our children stupider.”184 The initial contract entered into by the project with Wheelabrator Claremont Company, operator of an incinerator, required the payment of a disposal fee for 50,000 tons of waste. The recession in the early 1990s resulted in the project being unable to supply the required amount of waste and in effect discouraged recycling. In 1993, Wheelabrator decided not to accept any waste from the project because of unpaid bills for two years totaling in excess of $1 million. Article XIII of the cooperative interstate agreements authorizes a joint meeting of the two district governing bodies to levy an assessment on member municipalities, but such an assessment was rejected by the two districts and the joint committee members. In consequence, the project filed for Chapter 9 bankruptcy protection in 1993 in an effort to force Wheelabrator to renegotiate the contract with terms more favorable to the project.185 The U.S. Bankruptcy Court in 1994 rejected the project’s petition by noting the districts could have assessed their respective municipalities to raise the needed funds.186 Subsequently, the districts assessed their respective member municipalities to collect the needed funds. A renegotiated contract, entered into for the period 2000–2007, sets a disposal fee at $48.15 per ton for waste deliveries between 40,000 and 50,000 tons, and a fee of $50.00 per ton for waste deliveries exceeding 50,000 tons.187 In consequence, the project has an incentive to encourage recycling. Nevertheless, the project is not encouraging recycling because it is viewed as a municipal responsibility that necessitates an additional investment in recycling equipment including trucks. There is a strong possibility the interstate agreement may be terminated when the Wheelabrator contract expires in 2007. EPA established 2005 as the deadline for reductions in mercury emissions from the incinerator and installation of the required equipment will cost more than one million dollars. Furthermore, Wheelabrator sells electricity to the Connecticut Valley Electric Cooperative which maintains it has been purchasing more electricity than it needs to purchase under its contract with Wheelabrator.188 The issue currently is before the New Hampshire Public Service Commission. Should the cooperative not be required to purchase all of the electricity it currently purchases, Wheelabrator has the contractual right to require the project to pay the firm for its loss of revenue from the sale of electricity, and member municipalities will be assessed to raise the funds. As a result, all New Hampshire member municipalities desire to withdraw from the project, and there is no prospect the Wheelabrator contract will be extended or renegotiated. An observer is convinced there is no future for interstate cooperation because of the cultural differences between the states and between the mu-

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nicipalities within each state.189 Claremont and Newport are manufacturing municipalities while several member towns are very rural. In his opinion, each state government should be responsible for waste disposal as the problem is larger than a regional one, but the two state governments view waste disposal as a “hot potato” and provide no support for the project. If the project is terminated, either individual towns, or one or both solid waste districts will become responsible for solid waste disposal and probably will enter into waste disposal contracts with private firms. Waterfront Compact The Port of New York–New Jersey is the busiest eastern seaboard port and handles annually approximately 56 million long tons (2,240 pounds) of cargo with a value of approximately $70 billion.190 Corruption plagued the port until a New Jersey–New York interstate compact created the Waterfront Commission of New York Harbor and granted it broad regulatory powers and a power—taxation—denied to all other interstate compact commissions. Anticipating possible delays in securing congressional consent, each state legislature in 1953 enacted a statute providing for a commission that would work closely with its counterpart in the other state and use the text of the compact.191 Congress promptly granted its consent to the compact in 1953.192 The compact also is unusual in that it created a two-member commission with one member appointed for a three-year term by the governor of each state with the advice and consent of the Senate (Art. III(2)) and requiring a unanimous vote for initiation of action. The commission is directed to submit its annual budget to the two governments, and it takes effect as submitted unless either governor within a thirty-day period vetoes or reduces an item(s) (Art. XIII(2)). The commission subtracts from its budget any reserves and/or federal grants, and assesses employers of persons registered or licensed under the compact for the balance of the needed funds (Art. XIII(3)). The compact’s goals are the elimination of crime and corruption in the Port of New York–New Jersey adversely affecting the dockworkers and the economies of the two states. Two corrupt practices almost immediately were eliminated. The first was the “shape-up;” that is a system of hiring dock workers which oftentimes resulted in kickbacks, favors, or borrowing from designated loan sharks as the price paid by a longshoreman to a hiring boss to obtain work.193 The “shape-up” was replaced by the commission registering and licensing dock workers, and operating employment information centers. The second eliminated practice was “public loading,” a practice requiring truckers to pay designated persons to load or unload cargo even if their services were not needed. The commission is granted authority (Art. VIII, §3) to remove an officer

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of a waterfront labor union or a welfare fund partially or totally controlled by a union if the person is convicted of a felony, misdemeanor involving moral turpitude, or another crime specified in the compact. Approximately seventy-five union officers have been removed from office or forced to resign. In 2001, the commission broke its long-standing practice of allowing only members of the International Longshoremen’s Association to unload ships, considered by some to be a legal monopoly, by granting the request of a stevedoring company to use members of its union to unload ships carrying steel products in Port Newark.194 Containerization, commencing in the 1960s, reduced sharply the number of needed longshoremen and their numbers fell from approximately 31,000 to 2,700. The commission’s detectives work closely with New Jersey and New York State Police, the United States Attorney’s Office for the Southern District of New York, Federal Bureau of Investigation, U.S. Customs Service, U.S. Immigration and Naturalization Service, U.S. Postal Inspection Service, and U.S. Labor Department. Prevention of the theft of merchandise—athletic footwear, cheese, designer fragrances, ladies shirts, VCRs, copper ingots—and interdiction of drugs in the port are major activities of the commission that also have helped to round up illegal aliens and curb illegal gambling and loan-sharking. Water Compacts Interstate compacts have been drafted and enacted to apportion river water among party states, compensate states whose real property has been removed from the tax rolls by flood control dams, develop the resources of a river basin, and prevent floods. Negotiating a compact allocating waters tends to be a difficult process. One of the most recent such compacts is the Apalachicola-Chattahoochee-Flint Rivers Basin Compact enacted by the Alabama, Florida, and Georgia State Legislatures and consented to by Congress in 1999.195 Colorado River Compacts Much of the Southwest receives relatively little rainfall although the annual amount varies from four inches in places to as much as fifty inches in other places. The major source of water is the Colorado River that arises in the Rocky Mountains; drains approximately 244,000 square miles in sections of Arizona, California, Nevada, New Mexico, Utah, and Wyoming; and empties in Mexico into the Gulf of California. Conflicts over the apportionment of the river’s waters arose in the early years of the twentieth century as the waters were tapped for drinking water supply, irrigation, and power production.196 California in particular needed a larger water supply for Imperial Valley irrigation and the rapidly growing Los Angeles

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population at a time when Arizona, Nevada, New Mexico, and Wyoming had small populations. An understanding of interstate water conflicts is promoted by a brief definition of the water law systems employed in the United States. The first system, riparian rights, is used primarily in eastern states and provides an owner of land has the right to use water on his/her land. The second system, appropriation, is used in western states and assigns water use priority to the first user diverting the water for a beneficial use that does not have to be the user’s land. The third system is federal reserved water rights for Indian reservations and other uses that often prove to be controversial. Disputes over the allocation of river water can be resolved by three methods: litigation, congressional action, and interstate compact. The favorite device for avoiding and/or resolving transboundary water conflicts is the interstate compact of which there are twenty-one involving seventeen states. These compacts allocate specified amounts of water to each member state or assign a percentage of the available water to each state, or employ both allocation methods. Continued development in California and the lower Colorado River basin generated fears in the upper basin states—Colorado, New Mexico, Utah, and Wyoming—that the longer growing season in the lower basin states—Arizona, California, and Nevada—would result in their appropriation of water before the upper basin states could develop their projects. The U.S. Supreme Court in 1922 in Wyoming v. Colorado based its decision on the prior appropriation doctrine relative to Laramie River water rights, thereby increasing the fears of the upper basin states the doctrine would be applied to the Colorado River.197 It was apparent a need existed for the equitable apportionment of the river water. In 1921, U.S. Secretary of Commerce Herbert Hoover headed a commission which conducted negotiations for a comprehensive interstate water allocation compact, and an agreement was reached in 1922 subject to legislative approval in each state. The agreement provided the river would be divided into two basins at Lee’s Ferry, located in Arizona immediately south of Utah. A major stumbling block to reaching an agreement was Arizona’s insistence that all the waters of Arizona tributaries be allocated to it. A compromise was reached on compact Article III providing the first 15 million annual acre feet of water initially would be divided between the two river basins, and the lower basin states had the right to consume for beneficial use an additional 1 million acre feet if the flow exceeded 15 million acre feet annually.198 The compact did not allocate water between states in each basin. Unresolved was the amount of water to be reserved for Mexico other than a provision that such water would be derived from a surplus flow in excess of 16 million acre feet. A 1944 treaty between the United Mexican States and the United States set the amount of water reserved for Mexico at 1.5 million acre feet.199 The compact provides for a

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new apportionment of any surplus water subsequent to 1963. The river flow was estimated rather than measured, and the result was gross overestimation of the flow that caused future problems. Securing approval of the states was a difficult process. The California State Legislature would ratify the proposed compact only if Congress authorized construction of the Boulder Canyon Dam (now Hoover Dam) and the All American Canal that would divert water from the Colorado River to the Imperial Valley. Arizona Governor W.P. Hunt insisted he would not sign the compact bill unless the lower basin water was apportioned equally among the states. Six of the seven states enacted the compact, but Utah repealed its enactment. The compact became effective as a result of congressional enactment of the Boulder Canyon Act of 1928 authorizing the construction of the Boulder Canyon Dam and the All American Canal, and granting consent to the Colorado River Compact subject to specified conditions and approval of the modified compact by California and five of the other six concerned states.200 In 1931, the U.S. Supreme Court in Arizona v. California upheld the constitutionality of the act.201 This compact does not provide for an administrative commission, but directs the states to cooperate with each other relative to the compact’s water delivery provisions. In the event of a dispute, Article VI directs the governors to appoint commissioners with authority to resolve the dispute subject to the approval of their respective state legislature. Alternatively, any other dispute resolution mechanism may be employed. Arizona in 1952 sued California and contended it was consuming more Colorado River water than the amount consumed by the six other states with access to the water combined. In interpreting the compact, the U.S. Supreme Court generally ruled in favor of Arizona when the water flow is normal, but authorized the U.S. secretary of the interior to allocate the water when the flow drops below normal.202 This court suit was the fifth one involving the river. It is important to note that other federal bodies are involved with the river, including EPA (relative to salinity control), the Western Area Power Administration, and the Federal Energy Regulatory Commission which is responsible for federal hydropower pricing and distribution. The Arizona, Colorado, New Mexico, Utah, and Wyoming state legislatures in 1948 enacted the Upper Colorado River Basin Compact establishing a commission to divide the upper basin’s share of water among the members; Congress granted its consent in 1949.203 This relatively detailed compact stipulates the obligations of member states with respect to maintaining water flows at Lee Ferry of 7.5 million acre feet annually to meet the basin’s obligations under the Colorado River Compact and dividing waters of the Colorado River’s tributaries between the states. Article III allocates 50,000 acre feet of water annually to Arizona to satisfy its claims to the basin waters and the remaining water is allocated

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as follows: Colorado (51.75%), Utah (23%), New Mexico (11.25%), and Wyoming (14%). Should curtailment of water use be necessary to meet the obligation to the lower basin states, a state exceeding its allocation during the previous ten years must deliver an equivalent amount of water to Lee Ferry, according to Article IV, before the other upper basin states are required to curtail consumption. The Upper Colorado River Commission is composed of one commissioner from each member state—Colorado, New Mexico, Utah, and Wyoming—and may include one commissioner, appointed by the president of the United States, who serves as chairman with voting rights. The Arizona State Legislature enacted the compact, yet it does not authorize the state to appoint a commission member. Although the compact is an interstate one and not a federal-interstate compact, Article VIII(a) stipulates the federal member possesses rights, including voting, identical to those of the other members. This article recognizes the important role played by the United States government with respect to the river. The commission is empowered to initiate action on many matters provided four commissioners vote in the affirmative, but a unanimous decision is required to change the method of determining water consumptive use. There has been no compact litigation, and Zachary L. McCormick concluded in 1994 “the states have managed to interact relatively smoothly. This may be due to the fact that the Upper Division states have not yet used all of the water allotted to them.”204 A key question is whether there is a need for a single organization responsible for planning and managing the river basin’s water resources? The U.S. General Accounting Office conducted a study of water problems in the Colorado River Basin, concluded in 1979 there was a need for such an organization, and recommended that Congress establish a task force—composed of federal officers, state officers, and water users—to determine the specific type of organization best suited to meet the needs of the basin in the most effective manner and protect the rights of all concerned.205 The U.S. Department of the Interior did not register its opposition to the recommended establishment of a single organization, but the EPA responded that it would be preferable to strengthen the existing entities—Colorado River Basin Salinity Control Forum, Upper Colorado River Commission, and Colorado River Interagency Salinity Control Committee—and possibly redirect them.206 States registered strong opposition to a powerful single organization on the ground it would give first priority to national interests, thereby neglecting state interests, and the existing governmental structure in the river basin is addressing problems in a competent manner.207 No such organization has been created, and the two interstate basin commissions continue to operate.

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The Chesapeake Bay Compact Compacts creating a commission to conduct studies and develop recommendations are relatively common and are illustrated by the Chesapeake Bay Compact enacted by the Maryland, Pennsylvania, and Virginia general assemblies in 1980. The compact commission—composed of five legislators from each state, the three governors represented by the head of each state’s natural resources department, and three citizen members—is charged with advising the three legislative bodies on the multiple and wide-ranging issues involving one of the most polluted water ecosystems in the nation. The commission drafted a Chesapeake Bay Agreement, signed in 1983, creating a cooperative regional approach to restore the health of the bay. After additional studies and difficult negotiations the governors of the three states, the EPA administrator, and the mayor of Washington, D.C. in 1987 signed an interstate administrative agreement establishing goals to clean up the bay.208 A commitment was made to reduce by a minimum of 40 percent the amount of nitrogen and phosphorus entering the bay by 2000, control development along the shoreline, and eliminate toxic wastes flowing into the bay from industrial plants. Although New York did not sign any of the bay agreements, the Bingham-Johnson City Joint Sewage Treatment Plant in New York in 1999 decided to use a $4.35 million federal grant to install biological nutrient removal equipment to reduce nitrogen discharges into the Susquehanna River that empties into the bay.209 In 1996, the commission established a Bi-State Blue Crab Advisory Committee to develop recommendations for Maryland, Virginia, and the Potomac River Fisheries Commission (see below) governing crab harvesting. Commercial crab fishermen earn approximately $65 million annually. In December 2000, the committee “adopted a new fishing mortality target intended to give more crabs—about 20 percent of the population’s spawning potential—a chance to reproduce each year.”210 The commission in 1999 released for public comment a draft of “Chesapeake 2000” that builds on the 1987 agreement and establishes strategies for achieving the goals of the 1987 agreement. The governors of the three states, commission chairman, mayor of Washington, D.C., and EPA administrator signed the agreement. “Chesapeake 2000” seeks a tenfold increase in the number of oysters by 2010, identification of exotic species harming the bay’s aquatic ecosystem, construction of passage facilities for spawning fish, imposition of age and size limits on crabs, restoration of submerged aquatic vegetation, protection of forest buffers, sediment reduction, air pollution prevention programs, sound land use. Interstate Environmental Compact Continuing disputes over pollution of waters in the greater New York City area led the Tri-State Treaty Commission in the 1920s to recommend

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establishment of an interstate organization with authority to abate and eliminate pollution in the coastal, estuarial, and tidal waters in the New York City metropolitan area. The New Jersey and the New York State Legislatures in 1935 enacted the Interstate Sanitation Compact and Congress granted its consent, thereby creating in 1936 the Interstate Sanitation Commission (ISC) with five members from each state appointed in accordance with the statutes of the individual states.211 The compact (Art. VIVII) is unique in containing specific numerical water quality standards applicable to two classes of water. In 1941, the compact became a tri-state one when the Connecticut State Legislature enacted the compact into law. The compact establishes a minimum annual contribution each state must make; Connecticut’s statutory minimum is $3,334. The name of the compact was changed in 2000 to the Interstate Environmental Compact to reflect more accurately its mission.212 Article III of the compact authorizes the commission to exercise additional powers conferred on it by a party state provided the other party states concur. The New Jersey and New York State Legislatures enacted statutes, effective in 1962, permitting the commission to monitor but not regulate air pollution, and Connecticut enacted an identical statute in 1969.213 The commission is directed to report air pollution violations to the environmental protection department of the concerned state for air quality enforcement action. In 1970, the commission was designated as the official planning and coordinating agency for the New Jersey–New York– Connecticut air quality control region. The New York commissioner of environmental conservation serves as an ex officio member and if unable to attend a meeting is authorized to designate an alternate to attend the meeting. The governor appoints the other four commissioners subject to the advice and consent of the Senate for four-year terms. The New Jersey commissioners are two ex officio members—commissioners of environmental protection and health—and three others appointed for five-year terms by the governor subject to Senate approval. Three of the Connecticut commissioners are ex officio members—commissioners of environmental protection and health and the attorney general— and two commissioners appointed for four-year terms by the governor and confirmed by the Senate. The major early priority of the commission was construction and upgrading of wastewater treatment facilities. Considerable progress has been made including the 1983 requirement there must be secondary treatment at twenty-six treatment plants and the 1986 requirement for disinfection throughout the year that made viable thousands of acres of shellfish beds.214 The major remaining water pollution problem involves untreated discharges from overflows of combined sewer and storm drains. In addition, the commission participates “in the National Estuary Program, control of

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floatables, compliance monitoring, pretreatment of industrial wastes, toxics contamination, sludge disposal, dredged material disposal, and monitoring the ambient waters.”215 Article IX of the compact stipulates none of its provisions “shall be construed to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing any additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdictions.” Hence, the environmental departments of the three compacting states possess concurrent water pollution regulatory authority with the commission and have been granted by EPA regulatory primacy under the Clean Water Act, a partial preemption statute.216 In 1977, the commission scheduled public hearings on the proposed revision of its regulations that, if implemented, “would have had the effect and force of nullifying the compact and granting to the commission independent authority—without recourse to the legislatures of the member states, from which the compact derived.”217 The New York State Senate Select Committee on Interstate Cooperation exercised its oversight responsibilities and issued a report in 1981 proposing changes to the compact “in order to make it more responsive to the current environment, technology, and needs of the region.”218 The committee specifically recommended (a) eliminate all references to specific water classifications and effluent standards from the compact since such references have proved ineffective in the past; (b) broaden the compact mandate to address the question of controlling air and noise pollution; (c) expand the commission’s authority to insure regulatory and enforcement powers as well as monitoring responsibilities; (d) develop a mechanism by which the individual states will have a more definitive role in the standards-making procedures of the commission; (e) bring the commission’s program more in line with other programs of individual\member states; and (f) strengthen the role of the individual member states in this vital interstate matter.219

Attached to the committee’s report were proposed compact revisions, but the New York State Legislature took no action on the proposals. In 1986, the commission began to enforce its water quality regulations more aggressively and thereby generated conflicts with the three state environmental departments which were convinced the commission should focus on monitoring water pollution. In 1990, the New York State Legislative Commission on Expenditure Review (LCER) released a report on the commission and the conflicts.220 LCER noted the conflict between the commission and the New York State Department of Environmental Conservation (DEC) “contributed to reduced ISC monitoring of sewage treatment plants and area waters and a lack of coordination of efforts to monitor sewage

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discharges.”221 Relations between the two organizations became very strained, DEC representatives did not attend three consecutive quarterly commission meetings, and the department supported reductions in New York State’s appropriations for the commission. The three departments also were disturbed by four legal actions initiated by the commission’s executive committee prior to full consideration of the matters by the entire commission. State appropriations for the commission were reduced by 35 percent commencing in fiscal year 1989–1990 with Connecticut contributing its required minimum of $3,334, and New Jersey and New York each contributing $315,000.222 One result was a reduction in the commission’s staff of approximately 50 percent and decertification of its laboratory by the New York State Department of Health. An LCER survey of the commissioners revealed a division of opinion. Members representing environmental and health departments were opposed to enforcement action by the commission.223 Citizen members reported the commission’s enforcement activities were necessary to fill gaps in enforcement actions in the district and to provide a regional view on problems. LCER offered four recommendations to help resolve the conflicts: 1. The New York State Legislature should consider designating the state commissioner of health, a citizen member of the commission appointed by the governor, as an ex officio member of the commission. This designation would empower the commissioner to appoint an alternate to represent the commissioner at meetings. 2. The commission should adopt a policy delineating actions appropriate to be taken by its executive committee. 3. Staffs of the New York State Department of Environmental Conservation and the commission should share their plans for discharge inspections in advance and coordinate them. 4. The New York State Legislature should consider convening a conference to be attended by representatives of the commission, the three state legislatures, environmental and health departments, and EPA to clarify the air and water pollution roles of the commission.224

Four alternatives involving the commission were offered by LCER.225 First, the commission’s enforcement actions would be limited to specified situations or types of facilities. Second, the commission would continue to conduct research and inspections, but would cease its enforcement activities. In effect, the commission would “act as an independent watchdog of the state environmental departments and EPA.” Third, the commission’s roles would be monitoring, coordination, and research. Fourth, the commission could be abolished. With respect to the latter option, LCER noted

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“the ability to publicly articulate New York City Metropolitan Area water and air pollution problems might be lost.”226 The commission responded to the LCER report by identifying the recommendation for the convening of a conference as a most important one for resolving the conflicts.227 The New York State Department of Environmental Conservation also endorsed the convening of a conference and offered clarifications for several of LCER’s findings. In particular, the department disagreed “with the implication that DEC is not meeting its statutory responsibility to cooperate with the ISC in its water pollution control efforts.”228 Although no action was taken on LCER’s findings and suggested alternatives, relations between the state environmental departments and the commission commenced to improve with the election of Republican Rudolph W. Giuliani as mayor of New York City in 1993 and Republican George E. Pataki as governor of New York in 1994. They decided there was less need for the commission to perform a regulatory role. With the departure of the long-time executive director, a new commission attitude developed to work with the member states to determine which commission roles would be most helpful. The commission currently has excellent relations with the New York State Department of Environmental Conservation and has been described by a department officer as “very cooperative.”229 The commission is viewed as (1) filling gaps in the programs of the states, and (2) providing a forum for the discussion of water pollution issues. The New York State Department of Environmental Conservation, for example, has no laboratory in New York City or a boat for ambient water monitoring in the harbor. The commission has a laboratory and performs analyses for the department, and also has a boat that monitors water quality for the department. New England Water Pollution Control Compact State sanitary engineers in New England commenced to hold meetings prior to World War II to examine water pollution problems, and their efforts led to Congress granting in 1947 consent-in-advance to the New England Interstate Water Pollution Control Compact that subsequently was enacted by the state legislature of each New England state and New York.230 The compact’s area includes approximately 75,000 miles of streams and 4,600 miles of coastline. Article X of the compact excludes from the compact “the waters under the jurisdiction of the Interstate Sanitation Commission” (now Interstate Environmental Commission). Article II creates a commission and Article III stipulates the commission consists of five members from each state selected in accordance of the laws of the states they represent. Article III also provides:

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For each state there shall be on the commission a member representing the state health department, a member representing the state water pollution control board (if such exists), and except where a state in its enabling decides that the best interests of the state will be otherwise served, a member representing municipal interests, a member representing industrial interest, and a member representing an agency acting for fisheries or conservation.

Article V of the compact recognizes “no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical” and directs the commission to “establish reasonable physical, chemical, and bacteriological standards of water quality satisfactory for various classifications of use.” Each signatory state agreed to classify its interstate waters, submit its classifications for approval to the commission, and promote sewage and industrial waste treatment programs meeting the commission’s standards. The primary role of the commission since its origin has been coordination of member state programs to improve water quality. Its other roles are educating and training professionals, and informing the public relative to water quality issues. Coordination activities include reviewing proposed state laws and administrative regulations, serving as “a forum for dialogue on issues and the building of consensus, implementing a variety of special projects, and approving interstate water classifications.”231 Not surprisingly, there are policy differences among the party states relative to the impact of proposed regulations on economic development, yet the commission operates on the basis of consensus. The commission also organizes workgroups—biocriteria, drinking water, groundwater, nonpoint source, northeast regional mercury, on-site wastewater, operation and maintenance, underground storage tanks, water quality, and wetlands—to promote the exchange of information and develop consensus on issues, encourage a cooperative approach to solving problems, and prepare policy recommendations. The commission collaborates with the EPA and other federal, state, and local agencies in the development and coordination of special projects involving the Blackstone, Charles, Connecticut, and Merrimack Rivers, such as implementation of Massachusetts’ regulations for on-site septic systems. The EPA and individual states often request the commission to act as fiscal agent for or undertake a project.232 Executive Director Ronald F. Poltak explained in 2001 the commission is in the service of the member states: “They are our clients.”233 Director N.G. Kaul of the New York State Division of Water in 2001 reported the commission has excellent relations with the member states.234 Mr. Poltak also noted the region had been blessed with water, and water shortages had been a western problem. However, he reported there is a growing water shortage in certain areas of the region with streams nearly dry because of overuse of water, and the region will have to consider water allocation.

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Ohio River Valley Water Sanitation Compact The Ohio River was one of the most polluted rivers in the United States by 1930, and outbreaks of gastroenteritis were common and attributed to sewage pollution. A number of clean water advocates rejected proposed federal government control of the river and turned to the interstate compact as a mechanism to solve the pollution problem.235 A compact had not been utilized for regulatory purposes at this time. In 1936, Governor Martin L. Davey of Ohio invited the governors of the other states in the valley to send delegates to a conference to discuss drafting a compact. Delegates appointed a subcommittee to examine a proposed compact drafted by the Cincinnati Chamber of Commerce’s stream pollution committee. Negotiations on a compact continued in 1937 and 1938. In 1940, a compact was enacted into law by six state legislatures and Congress granted its consent.236 The compact did not become immediately effective because Ohio and West Virginia placed conditions on their adoption of the compact, and the Pennsylvania State Legislature did not act on the compact. The pollution problem became more serious during World War II because it generated industrial activity that contributed additional waste to the sewage waste. By 1945, only the Virginia General Assembly had failed to enact the compact, and in 1948 the assembly enacted the compact. Article I of the compact pledges each of the eight signatory states will cooperate to prevent future pollution and to abate existing pollution in the rivers and streams in the Ohio River Basin. Article III established the Ohio River Valley Water Sanitation Commission, and Article IV provides for the appointment of three commissioners from each state and three commissioners, appointed by the president of the United States. Article VI calls for treatment of sewage and industrial wastes, and Article VII stipulates the compact is not to be construed to limit the ability of any signatory state to impose additional conditions to prevent water pollution. Leach and Sugg in 1959 noted the compact was designed to make the commission an enforcement body employing the courts, when necessary, to obtain compliance with its regulations, but concluded the commission had not utilized its enforcement powers “with good reason: its record of accomplishment has been better without it.”237 Writing in 1967, Edward J. Cleary found the compact had made considerable progress in achieving its goals, but water monitoring revealed the need for upgrading of existing treatment plants and construction of new ones.238 In its 1998 annual report, the commission reported less than one percent of the sewage and industrial wastes discharged in 1948 received any treatment, the recreational potential of the river was limited, and only pollution-tolerant fish species lived in the river. By 1998, all municipal waste water and industrial discharges were treated, a large number of annual festivals and river-related events were held, and the river is alive with commercial and sport fish species.239

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Potomac River Basin Compact The 383-mile-long Potomac River drains an area of 14,670 square miles in four states and is the second largest source of water flowing into the Chesapeake Bay (see the Chesapeake Bay Compact above). The Interstate Compact on the Potomac River Basin is traceable in origin to the 1935 report of the Special Advisory Committee on Water Pollution of the National Resources Committee recommending creation of a Potomac River Conservancy District, a demonstration body charged with conducting a basin-wide study of water pollution and encouragement of pollution abatement measures.240 Congress in 1940 gave its consent to the compact that established a commission composed of representatives of Maryland, Pennsylvania, Virginia, West Virginia, the District of Columbia, and the federal government.241 Article I authorizes the president of the United States and each member state to appoint three members of the Interstate Commission on the Potomac River Basin to coordinate efforts to improve the water quality and related resources of the basin. The commission lacks regulatory powers, but plays important roles in promoting regional cooperation to ensure an adequate supply of drinking water, improving water quality, and restoring the American shad to the river. Quasi-Interstate Compacts Three compacts involving states may be labeled quasi-interstate compacts and are based on congressional statutes. A fourth quasi-compact involves the use of parallel legislation by the New Hampshire and Vermont State Legislatures. Pacific Northwest Council Congress in 1980, without using the term interstate compact, granted its consent to an “agreement” in a statute providing the failure of three of the concerned state legislatures—Idaho, Montana, Oregon, and Washington— to enact the agreement by June 30, 1981, would result in the secretary of the interior establishing a federal council to perform the functions of the council proposed by the agreement.242 Each state enacted the agreement and appointed two members of the Pacific Northwest Electric Power and Conservation Planning Council charged with preparation of a twenty-year regional conservation and electric power plan. Council proponents were fearful the administrator of the Bonneville Power Administration would displace the authority of states to site new power plants. Under the interstate agreement, the administrator is required to initiate actions consistent with the plans developed by the council. The constitutionality of the council was challenged by a builders asso-

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ciation on the grounds it was a federal agency and its members were appointed by states in violation of the appointments clause (Art. 2, §2) of the U.S. Constitution. The parties to the suit and the amici disagreed as to whether the council was a federal agency or an interstate compact body. The U.S. Court of Appeals opined the council was a compact body and its members are not federal officers within the meaning of the appointments clause.243 The court specifically commented the enabling statute created “an innovative system of cooperative federalism under which the states, within limits provided in the Act, can represent their shared interests in the maintenance and development of a power supply in the Pacific Northwest and in related environmental concerns.”244 The following year, the U.S. Supreme Court rejected a petition for issuance of a writ of certiorari.245 Columbia River Gorge Commission Congress in 1986 in a similar manner established the Columbia River Gorge Commission.246 Congressional consent was given to an interstate “agreement” incorporating by reference sections 544 to 544p of the U.S. Code and establishing a twelve-member commission. The governing body of each of three Oregon counties—Hood River, Multnomah, and Wasco— and the governing body of each of three Washington counties—Clark, Klickitat, and Skamania—appoints one commission member. The governors of Oregon and Washington each appoint three members, one of whom must be a resident of the scenic area. The commission is charged with development of a scenic area management plan incorporating “without change the management direction for the use of federal lands within and the land use designations for the special management areas adopted by the Secretary” (Agriculture) and including guidelines for adoption of county land use ordinances and administration of non-federal lands within the scenic area.247 The plan designates thirteen urban areas for future development and the remaining 90 percent of the area is subject to special protection. Northern Forest Lands Council Congress in 1990 created the Northern Forest Lands Council, similar to the Pacific Northwest Council, but differing in that the Forest Lands Council was a temporary body that was disbanded in 1994.248 The governor of each of four states—Maine, New Hampshire, New York, and Vermont— appointed four council members. The mission of the council was development of recommendations promoting the maintenance of “traditional patterns of land ownership and use” of the northern forest. Connecticut River Joint Commissions The New Hampshire General Court in 1987 created the fifteen-member Connecticut River Valley Resource Commission and charged it with (1)

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preparing “a comprehensive inventory of all the public and private resources which serve to preserve and protect the visual and ecological integrity of the” valley, (2) coordinating development of regional promotional programs “using existing public and private mechanism,” (3) initiating cooperation with Vermont in promoting and protecting the valley and (4) evaluating applications from local governments for funding to purchase conservation easements, development rights, and titles to properties.249 The following year the Vermont General Assembly established the fifteen-member Connecticut River Watershed Advisory Commission to encourage cooperation and coordination with Vermont and New Hampshire officers in protecting the resources of the valley.250 Most interestingly, the Vermont enabling statute stipulates: “In a manner consistent with New Hampshire law, the Advisory Commission may designate citizens from Vermont municipalities bordering the Connecticut River, to serve on, or coordinate with, local river management advisory groups established pursuant to New Hampshire Law.”251 In 1999, the two commissions recognized the need for “a single bi-state voice for the valley,” and decided to hold joint monthly meetings in the future and to incorporate the Connecticut River Joint Commissions for administrative and programmatic purposes.252 An individual state commission only holds a separate meeting to act on a matter relating to its membership or develop an advisory position on an issue requested by its state government. The budget of the joint commissions varies between $225,000 and $500,000 annually and includes $100,000 to $120,000 from the two states with the remaining funds provided by the federal government and foundations. The joint commissions work closely with agencies of the two states and federal agencies—Department of Transportation, EPA, Fish and Wildlife Service, and National Park Service. The joint commissions also work closely with the federal river navigator assigned to the Connecticut River by the U.S. Fish and Wildlife Service, who operates a partnership program providing grants under $5,000 for local initiatives advancing environmental protection and sustainable economic development. One of its major achievements—Connecticut River Corridor Management Plan—is the product of five bi-state local river subcommittees. SUMMARY Commissions established to administer interstate compacts generally are similar in terms of the organization and appointment and removal of members, but differ with respect to powers granted to them. Several are advisory bodies, a significant number construct and operate transportation facilities, others possess regulatory powers, and still others are designed to provide

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mutual assistance. A few commissions were established by what may be termed a quasi-interstate compact; that is, congressional creation or, in the case of the Connecticut River Joint Commissions, establishment by a decision of two state commissions to hold joint meetings. Most reviewed compacts have been noncontroversial, and Congress and the concerned state legislatures seldom have intervened in commissions’ affairs. The evidence presented reveals most compacts have been successful in achieving their objectives and a few, such as the Delaware River Basin Compact, have resolved contentious issues that otherwise would have been the subject of litigation. A commission could be created to implement each interstate compact, or officers of state departments and agencies could administer each compact. Currently, thirty-four compacts lack a commission and are the subject of Chapter 5. NOTES 1. Richard H. Leach and Redding S. Sugg, Jr., The Administration of Interstate Compacts (Baton Rouge: Louisiana State University Press, 1959), pp. 62–63. 2. Ibid., pp. 66–67. 3. Columbia River Gorge National Scenic Area Act, 100 Stat. 4277, 16 U.S.C. §544 note. 4. 64 Stat. 568 (1950). 5. Leach and Suggs, The Administration of Interstate Compacts, p. 84. 6. Ibid., p. 90. 7. Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991). 8. Leach and Sugg, The Administration of Interstate Compacts, p. 30. 9. Research Associate Nicholas J. Parrella’s interview with New York State Senator Hugh T. Farley, Albany, NY, March 23, 2001. 10. Ralph Blumenthal, “Byrne Again Opposes Port Unit: Vetoes Its Plan for Bus Projects,” New York Times, June 22, 1977, pp. 1, 36. 11. Ari L. Goldman, “Low Fares Cited as Carey Vetoes PATH’s Budget,” New York Times, February 11, 1982, p. 1. 12. Ronald Smothers, “Port Authority Increases Tolls and Train Fare,” New York Times, January 26, 2001, pp. 1, B8. 13. Marian E. Ridgeway, Interstate Compacts: A Question of Federalism (Carbondale: Southern Illinois University Press, 1971), p. 299. 14. Patricia S. Florestano, Interstate Compacts in Maryland (Annapolis: Maryland Commission on Intergovernmental Cooperation, 1975); Patricia S. Florestano, A Survey of Interstate Compacts in Which the State of Maryland Has Membership (Annapolis: Maryland Commission on Intergovernmental Cooperation, 1972). 15. Patricia S. Florestano, “Past and Present Utilization of Interstate Compacts in the U.S.” Publius 24, Fall 1994, p. 23. 16. 61 Stat. 612 (1947). 17. Interstate Oil and Gas Compact of 1935, 49 Stat. 939.

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18. Atlantic States Marines Fisheries Compact of 1942, 56 Stat. 270. See also 64 Stat. 467 (1950). 19. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 20. 98 Congressional Record, February 11, 1952, pp. 962–63. 21. Emanuel Celler, “Congress, Compacts, and Interstate Authorities,” Law and Contemporary Problems 26, Autumn 1961, p. 695. 22. H.R. 606, H.R. 607, H.R. 608, 86th Cong., 2nd session (1960). 23. United States v. Tobin, 195 F.Supp. 588 (D.D.C. 1961). 24. Tobin v. United States, 306 F.2d 270 at 275–76 (C.A.D.C. 1962). 25. Ibid. 26. Tobin v. United States, 371 U.S. 902, 83 S.Ct. 206 (1962). 27. For an excellent analysis of the creation, operations, and politics of the authority, consult Jameson W. Doig, Empire on the Hudson: Entrepreneurial Vision and Political Power at the Port of New York Authority (New York: Columbia University Press, 2001). 28. New Jersey Laws of 1921, Chap. 151, and New York Laws of 1921, Chap. 154. 29. The Port Authority of New York & New Jersey Comprehensive Annual Finance Report for the Year Ended December 31, 2000 (New York: The Authority, 2001), pp. 9, 23. 30. Ronald Smothers, “Port Authority Approves Budget, Putting Capital Plan in Motion,” New York Times, February 23, 2001, p. B4. 31. The ABC’s . . . of the Port Authority of New York and New Jersey (New York: The Authority, 1991). 32. Public Papers of Franklin D. Roosevelt: Forty-Eighth Governor of the State of New York, 1931 (Albany: J.B. Lyon Company, 1937), pp. 771–72. 33. Dick Netzer, “Reinventing the Port Authority,” City Journal 6, Summer 1996, p. 77. 34. Ibid., p. 89. 35. Ibid., p. 83. 36. Ibid., pp. 84–89. 37. Doig, Empire on the Hudson, p. 391. 38. Ronald Smothers, “As It Turns 80, the Port Authority Looks to Its Roots to Find Its Future,” New York Times, April 30, 2001, p. B5. 39. Ibid. 40. Eric Lipton, “Giuliani Says That He Lacks Power to Take Over Airports,” New York Times, March 29, 2001, p. B4. 41. Ibid. 42. For details, consult Redding S. Sugg, Jr. and George H. Jones, The Southern Regional Education Board: Ten Years of Regional Cooperation in Higher Education (Baton Rouge: Louisiana State University Press, 1960). 43. Ibid., p. 19. 44. Making Connections: 1999 Annual Report (Atlanta: Southern Regional Education Board, 1999), pp. 6–13. 45. “New England Board of Higher Education: A Fact Sheet” (Boston: The Board, 1999).

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46. Melvin Bernstein, “New England’s Higher Education Compact Has Stood the Test of Times,” Connection 16, Summer 2001, p. 39. 47. Letter from Massachusetts Governor Michael S. Dukakis to President John C. Hoy and Dr. Melvin H. Bernstein of the New England Board of Education dated May 3, 1990, p. 1. 48. James B. Conant, Shaping Educational Policy (New York: McGraw-Hill Book Company, 1964), p. 109. 49. James B. Conant, “How the Compact Can Assist the Universities,” The Educational Record 47, Winter 1966, p. 101. 50. The Compact for Education (Durham, NC: Education Commission of the States, 1965), p. 7. 51. Highlights of 1999–2000 (Denver: Education Commission of the States, 2000), pp. 2–3. 52. Maine Revised Statutes Annotated, tit. 20A, §§3601 et seq. and New Hampshire Revised Statutes Annotated, §200-F:1. 53. Interview with Dr. William G. Zimmerman, first Superintendent of the Dresden Interstate School District, Framingham, MA, October 26, 2000 (hereafter referred to as Zimmerman interview). 54. Interstate School District, 77 Stat. 332 (1963). 55. Consult Joseph F. Zimmerman, The New England Town Meeting: Democracy in Action (Westport, CT: Praeger Publishers, 1999). 56. Zimmerman interview. Information in the following paragraph also is derived from this source. 57. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598 (1964). 58. Interview with Superintendent Kenneth Greenbaum of the Dresden Interstate School District, Hanover, NH, November 21, 2000 (hereafter referred to as Greenbaum interview). 59. Vermont Acts of 1997, Act 60, and Vermont Statutes Annotated, tit. 16, §§2941–3448. 60. “Education Finance Features of Act 60, as Amended,” VLCT (Vermont League of Cities and Towns) Candidate Bulletin, August 2000, p. 5. 61. Peter T. Kilborn, “Vermont Spending Plan Seems to Help Schools,” New York Times, January 31, 2001, p. A11. 62. Greenbaum interview. 63. New Hampshire Statutes Annotated, Chap. 200-C; Vermont Statutes Annotated, tit. 16, §771; “New Hampshire–Vermont Interstate School Compact;” and 83 Stat. 14 (1969). See also Articles of Agreement for Proposed Rivendell Interstate School District (Orford, NH: The District, 1998). 64. Rivendell Interstate School District Annual Report 1999 (Orford, NH: The District, 1999), p. 12. 65. Interview with Rivendell Interstate School Board Chairman Allen Avery, Orford, NH, November 21, 2000. Information in the following paragraph is derived from this source. 66. “Interstate School District Opens Today Despite Debate over New Curriculum,” Union Leader (Manchester, NH), August 28, 2000, p. A7. 67. Felix Frankfurter and Charles Landis, “The Commerce Clause of the Con-

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stitution—A Study in Interstate Adjustments,” Yale Law Journal 34, May 1925, p. 688. 68. 54 Stat. 752 (1948). 69. Delaware Laws of 1961, Chap. 71; New Jersey Laws of 1961, Chap. 13; New York Laws of 1961, Chap. 148; Pennsylvania Acts of 1961, Act 268; and 75 Stat. 688 (1961). 70. Brevard Crihfield and H. Clyde Reeves, “Intergovernmental Relations: A View from the States,” The Annals of the American Academy of Political and Social Science 416, November 1974, p. 101. 71. New Jersey v. New York, 283 U.S. 805, 51 S.Ct. 562 (1931). 72. New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 842 (1954). 73. Roscoe C. Martin et al., River Basin Administration and the Delaware (Syracuse, NY: Syracuse University Press, 1960), pp. 341–62. 74. 75 Stat. 688 (1961). 75. Delaware River Basin Compact: Report to Accompany H.J. 225 (Washington, DC: United States Senate Committee on the Judiciary, 1961), p. 29. 76. Ibid., p. 30. 77. Vernon D. Northrop, “The Delaware River Basin Commission: A Prototype in River Basin Development,” Journal of Soil and Water Conservation 22, March– April 1967, p. 60. 78. News release from the office of Governor Mario M. Cuomo of New York, February 23, 1983. 79. Report on the Evaluation of the Delaware River Basin Commission Expenditures As They Relate to New York State (Albany: New York State Department of Environmental Conservation, 1980), p. 5. 80. E-mail message from Counsel Richard Cairo of the Susquehanna River Basin Commission, March 28, 2001. 81. Weldon V. Barton, Interstate Compacts in the Political Process (Chapel Hill: University of North Carolina Press, 1967), p. 111. 82. Jerome C. Muys, “Interstate Compacts and Regional Water Resources Planning and Management,” Natural Resources Lawyer 6, Spring 1973, p. 164. 83. Interview with Director N.G. Kaul of the New York State Department of Environmental Conservation Division of Water, Albany, NY, February 8, 2001 (hereafter referred to as Kaul interview). 84. Jeffrey P. Featherstone, “An Evaluation of Federal-Interstate Compacts as an Institutional Model for Intergovernmental Coordination and Management: Water Resources for Interstate River Basins in the United States” (Philadelphia: Unpublished Ph.D. dissertation, Temple University, 1999), p. 182. 85. Ibid., pp. 182–85. 86. Ibid., p. 188. 87. 84 Stat. 1509 (1971); Maryland Laws of 1967, Chap. 391; New York Laws of 1967, Chap. 785; and Pennsylvania Acts of 1968, Act 181. 88. William Voigt, Jr., The Susquehanna Compact (New Brunswick, NJ: Rutgers University Press, 1972), p. 61. 89. 1999 Annual Report (Harrisburg, PA: Susquehanna River Basin Commission, 2001), p. 2. 90. Kaul interview.

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91. E-mail message from Counsel Richard Cairo of the Susquehanna River Basin Commission, March 28, 2001. 92. 67 Stat. 45 (1953), 71 Stat. 18 (1957), and 72 Stat. 364 (1958). 93. Interview with Executive Secretary Pauline Smiaroski of the Connecticut River Flood Control Commission, Old Deerfield, MA, May 31, 2000. 94. Connecticut Public Acts of 1979, Act 528; Massachusetts Laws of 1981, Chap. 716; New Hampshire Laws of 1979, Chap. 108; Vermont Acts of 1979, Act 89; and 97 Stat. 866 (1983). 95. Connecticut River Basin Anadromous Fisheries Restoration: Coordination and Technical Assistance. Federal Aid Progress Report October 1, 1999–September 30, 2000 (Sunderland, MA: U.S. Fish and Wildlife Service, 2000), p. 17. 96. “Prepared Statement of Hon. Olympia J. Snowe, A Representative in Congress from the State of Maine,” Northeast Interstate Dairy Compact: Hearings before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives on H.R. 4560 (Washington, DC: U.S. Government Printing Office, 1994), p. 36. 97. West Lynn Creamery, Incorporated v. Commissioner of Department of Food and Agriculture, 415 Mass. 8, 611 N.E.2d 239 (1993) and West Lynn Creamery, Incorporated v. Healy, 512 U.S. 186, 114 S.Ct. 2205 (1994). 98. Connecticut Laws of 1993, Chap. 320; Maine Laws of 1993, Chap. 274; Massachusetts Laws of 1993, Chap. 370; New Hampshire Laws of 1993, Chap. 57; Rhode Island Laws of 1993, Chap. 106; Vermont Laws of 1993, Chap. 57; and Federal Agriculture Improvement and Reform Act of 1996, 110 Stat. 919, 7 U.S.C. §7256. 99. 61 Federal Register 44290 (August 28, 1996). 100. “Dairy Compact Offers Farmers Stability, Pataki Says,” Times Union (Albany, NY), July 27, 2001, p. B1. 101. Interview with Executive Director Daniel J. Smith of the Northeast Dairy Compact Commission, Montpelier, VT, September 18, 2001. 102. Relative to the school food service exemption, consult 63 Federal Register 10104 (February 27, 1998) and 7 CFR §1301.13. 103. Northeast Interstate Dairy Compact: Hearings, p. 94. 104. “Favoring Dairy Farmers over the Poor,” New York Times, August 12, 1996, p. A14. 105. Milk Industry Foundation v. Glickman, 967 F.Supp. 564 (D.D.C., 1997), and Milk Industry Foundation v. Glickman, 132 F.3d 1467 at 1470 (D.C. Cir. 1998). 106. New York State Dairy Foods, Incorporated v. Northeast Dairy Compact Commission, 26 F. Supp.2d 249 (D. Mass. 1998); New York State Dairy Foods, Incorporated v. Northeast Dairy Compact Commission, 198 F.3d 1 (1st Cir. 1999); and New York State Dairy Foods, Incorporated v. Northeast Dairy Compact Commission, 120 S.Ct. 1833 (2000). 107. www.dairycompact.org/comfacts.htm. 108. James Dao, “Congress Weighs Bill to Expand the Cartel Letting Northeast Dairy Farmers Set Prices,” New York Times, May 2, 1999, p. 3. 109. Ibid. 110. Ken Bailey, Report on the Operation and Performance of the Northeast

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Interstate Dairy Compact, http://www.aers.psu.edu/dairyoutlook/reports/NE CompactStudy.htm (2000), pp. 20–21. 111. Ronald W. Cotterill and Andrew W. Franklin, The Public Interest and Private Economic Power: A Case Study of the Northeast Dairy Compact (Storrs: Food Marketing Policy Center, University of Connecticut, 2001), pp. vi, 8, 39. 112. Ibid., p. 41. 113. Ibid., p. 8. 114. Dairy Industry: Estimated Impacts of Dairy Compacts (Washington, DC: U.S. General Accounting Office, 2001). 115. John McElhenny, “Senate: Mass. Should Withdraw From Dairy Compact,” Union Leader (Manchester, NH), May 18, 2000, p. A12. 116. “Mass. Lawmakers Dropping Plan to Leave Northeast Dairy Compact,” Union Leader (Manchester, NH), July 18, 2000, p. B3. 117. Atomic Energy Act of 1946, 60 Stat. 755, 42 U.S.C. §2011, and Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C. §2011. 118. 76 Stat. 249 (1962). 119. E-mail message from Kenneth J. Nemeth of the Southern States Energy Board, March 26, 2001. 120. Ibid. 121. Southern States Energy Board Annual Report 2000 (Norcross, GA: The Board, 2000), pp. 3–22. 122. 84 Stat. 979 (1970). 123. Atlantic States Marine Fisheries Compact, 56 Stat. 267 (1942); Pacific Marine Fisheries Compact, 61 Stat. 419 (1947); and Gulf States Marine Fisheries Compact, 63 Stat. 70 (1949). 124. International Board of Inquiry for the Great Lakes Fisheries: Report and Supplement (Washington, DC: U.S. Government Printing Office, 1943), pp. 35–41. 125. A.C. Carpenter, “Some History and Functions of the Potomac River Fisheries Commission,” Commercial Fisheries News, September 1976, p. 4. 126. 76 Stat. 797 (1962). 127. Atlantic States Marine Fisheries Compact, 56 Stat. 267 (1942) and 64 Stat. 467 (1950). 128. “Virginia General Assembly Takes Steps to Leave ASMFC,” Bay Journal 5, March 1995, p. 13. 129. Atlantic Striped Bass Conservation Act Amendment of 1986, 100 Stat. 989, 16 U.S.C. §1851 note. 130. Atlantic Coastal Fisheries Cooperative Management Act of 1993, 107 Stat. 2447, 16 U.S.C. §1501 note. 131. Francis X. Clines, “U.S. Acts to Protect Embattled Horseshoe Crab,” New York Times, August 9, 2000, p. A12. 132. “NMFS Rescinds Implementation of Horseshoe Crab Moratorium; Virginia Closes Fishery as of October 23,” ASMFC Fisheries Focus, November 2000, p. 4. 133. Magnuson-Stevens Fisheries Conservation and Management Act of 1976, 96 Stat. 347, 16 U.S.C. §1852(a)(1) and “Connecticut Suit Challenges Constitutionality of Fishing Quotas,” Bay Journal 10, November 2000, p. 5. 134. “Connecticut Drops Challenge to Coastal Fish Law,” Bay Journal 11, May 2001, p. 8.

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135. Weldon V. Barton, Interstate Compacts in the Political Process (Chapel Hill: University of North Carolina Press, 1967), p. 27. 136. Research Associate Nicholas J. Parrella’s interview with Director Gerald Barnhart of the New York State Division of Fish, Wildlife, and Natural Resources, Albany, NY, February 28, 2001. 137. Telephone interview with Gordon Colvin of the New York State Division of Fisheries, April 2, 2001. 138. Atomic Energy Act of 1946, 60 Stat. 755, 42 U.S.C. §2011, and Atomic Energy Act of 1959, 73 Stat. 688, 42 U.S.C. §2021. 139. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 140. Low-Level Radioactive Waste Policy Amendments Act of 1985, 99 Stat. 1842, 42 U.S.C. §2021b. 141. “South Carolina to Restrict Its Nuclear Dump,”Governing 13, August 2000, p. 64. 142. 112 Stat. 1542 (1998). 143. Nebraska Blue Book, 1998 (Lincoln: Nebraska Secretary of State, 1998), p. 276, and “Nebraska Rejects Compact,” State Government News 42, June/July 1999, p. 6. 144. Low-Level Radioactive Wastes: States Are Not Developing Disposal Facilities (Washington, DC: U.S. General Accounting Office, 1999), pp. 26, 29. 145. Ibid., pp. 55–60. 146. Ibid., p. 57. 147. E-mail message to author from Executive Director Don Wolmeldorf of the Southwestern Low-Level Waste Commission, December 10, 1999. 148. Model Regulations, Statutes, and Guidelines: Uniformity Recommendations to the States (Washington, DC: Multistate Tax Commission, 1995), p. iii. 149. Northwestern States Portland Cement Company v. Minnesota, 358 U.S. 450 (1959). 150. United States Steel Corporation v. Multistate Tax Commission, 434 U.S. 452 at 473 (1978). 151. Model Regulations, Statutes, and Guidelines, pp. 72–116. 152. Ibid., pp. 1–70. 153. See for example Vermont Statutes Annotated, tit. 22, Chap. 2, §§21–32. 154. New York Laws of 1963, Chap. 787, §2, and New York Education Law, §§293–97. 155. Weeks Act of 1911, 36 Stat. 69 (1911). 156. 63 Stat. 171 (1949). 157. Briefing Manual (Warner, NH: Northeastern Forest Fire Protection Commission, 2000), p. 5. 158. 66 Stat. 71 (1952). 159. Annual Report (Warner, NH: Northeastern Forest Fire Protection Commission, 2000), pp. 11–13. 160. Ibid., p. 15. 161. Research Associate Christopher W. LeBarge’s interview with Thomas Rinaldi of the Division of Forest Protection and Fire Management, New York State Department of Environmental Conservation, Albany, NY, October 24, 2000 (hereafter referred to as Rinaldi interview).

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162. Ibid. 163. Needs Assessment (Warner, NH: Northeastern Forest Fire Protection Commission, 1999). 164. Rinaldi interview. 165. See Delaware Code, §§1961 et seq. 166. See Oklahoma Statute Annotated, tit. 1, §§1301–215. 167. See South Carolina Code Annotated, §§48–37–10 et seq. 168. Richard H. Leach, “The Interstate Oil Compact: A Study in Success,” Oklahoma Law Review 10, August 1957, p. 275. 169. 86 Stat. 383 (1979). 170. Leach, “The Interstate Oil Compact,” p. 277. 171. Ibid., p. 288. 172. Erich W. Zimmermann, Conservation in the Production of Petroleum: A Study of Industrial Control (New Haven, CT: Yale University Press, 1957), p. 210. 173. 69 Stat. 383 (1955). 174. “Extension of Interstate Compact to Conserve Energy,” 101 Congressional Record, May 2, 1979, p. S5192. 175. Ibid., p. S5193. 176. Research Associate Nicholas J. Parrella’s interview with Director Bradley Field of the New York State Division of Mineral Resources, Albany, NY, March 28, 2001. 177. www.iogcc.oklaosf.state.ok.us/aboutiogcc3.htm. 178. IOGCC Environmental Guidelines for State Oil & Gas Regulatory Programs (Oklahoma City, OK: Interstate Oil & Gas Compact Commission, 1994). 179. 2000 Annual Report (Washington, DC: Interstate Pest Control Compact, n.d.). 180. Ibid., p. 3. 181. Telephone interview with Director Robert J. Mungari of the New York Division of Plant Industry, Albany, NY, October 30, 2000. 182. 96 Stat. 1207 (1982). 183. “NH–Vermont Solid Waste District Chief under Fire,” Union Leader (Manchester, NH), April 17, 2000, p. B1. 184. Interview with Interim Project Director Denise Callum of the New Hampshire–Vermont Interstate Solid Waste Project, Claremont, NH, April 24, 2001. 185. Aaron H. Simpson, “The New Hampshire/Vermont Solid Waste Project: Is There a Solution?” Vermont Law Review 20, Summer 1996, pp. 1091–135. 186. In re Sullivan County Regional Refuse Disposal District, 165 B.R. 60 at 66 (Bankruptcy D. N.H. 1994). 187. Letter from Controller Charles E. Lepore to Interim Project Director Denise Callum of the New Hampshire–Vermont Solid Waste Project, July 17, 2000. 188. Interview with Town Manager Daniel P. O’Neill, Newport, New Hampshire, May 30, 2001. 189. Ibid. 190. Annual Report 1998–1999 (New York: The Waterfront Commission of New York Harbor, 1999), p. 5. 191. Frederick L. Zimmermann and Mitchell Wendell, The Law and Use of Interstate Compacts (Lexington, KY: The Council of State Governments, 1976),

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p. 47. See also New Jersey Laws of 1953, Chap. 202 and New York Laws of 1953, Chap. 882. 192. 67 Stat. 541 (1953). 193. 1991–1992 Annual Report (New York: Waterfront Commission of New York Harbor, 1992), p. 2. 194. Leslie Eaton, “Ruling May Erode Longshoremen’s Grip on Ports,” New York Times, May 16, 2001, pp. B1, B6. 195. Apalachicola-Chattahoochee-Flint River Basin Compact, 11 Stat. 2219 (1999). 196. For a comprehensive study of interstate water apportionment compacts, consult Zachary L. McCormick, “The Use of Interstate Compacts to Resolve Transboundary Water Allocation Issues (Stillwater: Unpublished Ph.D. dissertation, Oklahoma State University, 1994). 197. Wyoming v. Colorado, 259 U.S. 419 (1922). 198. An acre foot is the quantity of water covering an acre to a depth of one foot. 199. Water Treaty of 1944, 59 Stat. 1219 (1944). 200. Boulder Canyon Act of 1928, 45 Stat. 1057, 43 U.S.C. §617. 201. Arizona v. California, 283 U.S. 423, 51 S.Ct. 522 (1931). 202. Arizona v. California, 373 U.S. 546 (1963). For information on interstate suits, consult Joseph F. Zimmerman, Interstate Relations: The Neglected Dimension of Federalism (Westport, CT: Praeger Publishers, 1996), pp. 18–31. 203. 63 Stat. 31 (1949). 204. McCormick, “The Use of Interstate Compacts to Resolve Transboundary Water Allocation Issues,” p. 99. 205. Colorado River Basin Water Problems: How to Reduce Their Impact (Washington, DC: U.S. General Accounting Office, 1979), pp. 53–54. 206. Ibid., p. 98. 207. Ibid., p. 54 and appendices XI–XV. 208. B. Drummond Ayres, “Chesapeake Cleanup Pact Is Signed,” New York Times, December 16, 1987, p. A20. 209. “NY Sewage Treatment Plant to Install BNR, Boost Bay Efforts,” Bay Journal 9, March 1999, p. 3. 210. “Bi-State Blue Crab Panel Approves Stricter Harvest Restrictions,” Bay Journal 10, January–February 2001, p. 3. 211. 49 Stat. 932 (1935). 212. Energy and Water Development Appropriations Act of 2000, 114 Stat. 1441A-85. 213. New Jersey Laws of 1961, Chap. 105; New York Laws of 1960, Chap. 476; and Connecticut Public Act 5 of 1969. 214. 1999 Annual Report (New York: Interstate Sanitation Commission, 2000), pp. 1–2. 215. 2000 Annual Report (New York: Interstate Environmental Commission, 2001), p. 3. 216. Clean Water Act of 1977, 91 Stat. 1575, 33 U.S.C. §1251. See also Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991).

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217. The Interstate Sanitation Commission: The Need for Change (Albany: New York State Senate Select Committee on Interstate Cooperation, 1981), p. 2. 218. Ibid. 219. Ibid., p. 3. 220. Memorandum Report to the Legislature: Interstate Sanitation Commission (Albany: New York State Legislative Commission on Expenditure Review, 1990). 221. Ibid., p. 1. 222. Interstate Sanitation Commission 1992 Annual Report (New York: The Commission, 1993), p. 1. 223. Memorandum Report to the Legislature, p. 15. 224. Ibid., pp. 2–3. 225. Ibid., p. 18. 226. Ibid. 227. Ibid., p. 20. 228. Ibid., p. 23. 229. Kaul interview. 230. 61 Stat. 682 (1947). 231. Annual Report 1998 (Lowell, MA: New England Interstate Water Pollution Control Commission, 1998), p. 4. 232. Interview with Executive Director Ronald F. Poltak of the New England Interstate Water Pollution Control Commission, Lowell, MA, May 17, 2001. 233. Ibid. 234. Kaul interview. 235. Edward J. Cleary, The Orsanco Story: Water Quality Management in the Ohio Valley under an Interstate Compact (Baltimore: Johns Hopkins University Press, 1967), p. 42. 236. 54 Stat. 752 (1940). 237. Leach and Sugg, The Administration of Interstate Compacts, pp. 217–18. 238. Cleary, The Oransco Story, p. 221. 239. Annual Report 1998 (Cincinnati: Ohio River Valley Water Sanitation Commission, 1999), pp. 14–15. 240. Healing a River: The Potomac: 1940–1990 (Rockville, MD: Interstate Commission on the Potomac River Basin, 1990), p. 2. 241. 54 Stat. 748 (1940). See also 84 Stat. 856 (1970). 242. Pacific Northwest Electric Power and Conservation Planning Act of 1980, 94 Stat. 2697, 16 U.S.C. §839b(a)(2) and §839b(b). 243. Seattle Master Builders Association v. Pacific Northwest Electric Power and Conservation Planning Council, 786 F.2d 1359 at 1363 (9th Cir. 1986). 244. Ibid. at 1366. 245. Seattle Master Builders Association v. Pacific Northwest Electric Power and Conservation Planning Council, 479 U.S. 1059, 107 S.Ct. 939 (1987). 246. Columbia River Gorge National Scenic Area Act of 1986, 100 Stat. 4277, 16 U.S.C. §544c(a). 247. Ibid., 100 Stat. 4280, 16 U.S.C. §544d. 248. Northern Forest Lands Council Act of 1990, 104 Stat. 3359, 16 U.S.C. §2101. 249. New Hampshire Laws of 1987, Chap. 311 and New Hampshire Statutes Annotated, §227-E:5.

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250. Vermont Laws of 1987, Chap. 208 (Adj. Sess.) and Vermont Statutes Annotated, tit. 10, §1193. 251. Ibid. §1193(a). 252. Letter from Executive Director Sharon F. Francis of the Connecticut River Joint Commissions, Charlestown, NH, June 8, 2000, p. 1.

Chapter 5

INTERSTATE COMPACTS SANS COMMISSIONS

Departments and agencies of the compacting states administered all interstate compacts, except boundary ones requiring no administration, until 1921. Subsequently, compact commissions have become responsible for the administration of transportation facility compacts and several regulatory compacts. Currently, thirty-four compacts—particularly criminal justice and service provision ones—are administered by specialized state departments and agencies rather than by compact commissions. All states, the District of Columbia, Guam, and the Virgin Islands are members of the Interstate Compact for Juveniles. In addition, all state legislatures enacted the now dormant Civil Defense and Disaster Compact. Other compacts with a large membership, including the District of Columbia, are Mental Health (45 states), Corrections (40 states), and Library (34 states). This chapter examines the experience of selected compacts lacking an implementing commission and their administration by state administrative officers. These compacts deal with important subjects—detainers, children, corrections, emergency management, motor vehicles, mental health, and parole and probation—and typically have less public attention focused on them than facility and regulatory compacts administered by commissions. State officers, of course, could administer the latter compacts, but a political decision was made that facility and regional regulatory compacts should be administered by commissions composed primarily of residents of the concerned regions. Chapter 4, for example, describes the Colorado River Basin Compact administered by administrators of the party states and the Upper Colorado River Basin Compact administered by a commission.

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AGREEMENT ON DETAINERS The Interstate Agreement on Detainers (writs authorizing confinement of a person) is a compact designed to promote the proper and speedy dispositions of detainers based on complaints, indictments, or information from sister states.1 In other words, the compact seeks to facilitate interstate rendition for trial purposes. Forty-eight states, the Commonwealth of Puerto Rico, the Virgin Islands, and the District of Columbia have enacted the agreement into law. A prisoner charged with crimes in one or more states and confined in prison in one state has the right to a speedy trial. The Council of State Governments recognized the need for facilitating the return of a prisoner to stand trial and in 1956 proposed the interstate agreement to solve the delayed justice problem.2 If there is an untried complaint, indictment, or information against a person entering a term of imprisonment in a state penal facility, he/she must be notified and brought to trial within six months subsequent to providing the prosecuting officer with written notice of his/her imprisonment place and request for a final disposition of the complaint, indictment, or information. The prosecuting officer, under the agreement, is entitled to have the prisoner against whom a detainer has been lodged made available in the receiving state upon submission of a written request for temporary custody of the prisoner to the concerned officer in the state where the prisoner is confined. This officer must offer to deliver the prisoner for temporary custody by the receiving state. After the end of the person’s trial, he/she must be returned to the sending state at the earliest practicable time. This compact became a federal law under a decision rendered by the U.S. Supreme Court in 1981.3 U.S. courts prior to this decision had been bound since 1874 to accept the interpretation of state law by the concerned state’s highest court.4 The Supreme Court, by deeming that congressional consent transformed the interstate compact into federal law, could ignore the Pennsylvania Supreme Court’s interpretation of the statute. The Grasso Controversy Controversies usually are not associated with the Interstate Agreement on Detainers. In 1994, however, the agreement became a gubernatorial election campaign issue in New York State. Thomas Grasso was convicted of murder in 1992 in New York and sentenced to twenty years to life in prison. Shortly thereafter, he was returned to Oklahoma under the agreement to stand trial for a 1990 murder. He pleaded guilty and stated he wished to die, a wish supported by his mother. In 1993, Oklahoma informed New York Grasso would not be returned to serve his New York sentence and he would be executed in Oklahoma.5 The Oklahoma attorney

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general informed the New York commissioner of corrections “the state of Oklahoma has a legitimate and strong interest in insuring that this valid judgment and sentence be carried out expeditiously.”6 The commissioner demanded the return of the prisoner. New York brought an action in the U.S. District Court in Muskogee, Oklahoma, seeking enforcement of the interstate agreement. On October 8, 1993, Judge Frank Sealy held that Oklahoma, under the agreement, is required to return the prisoner to New York.7 The judge suggested the two states should enter into a cooperative custodial agreement under which Grasso would serve his New York prison sentence in Oklahoma and be executed by the state upon completion of the New York prison sentence. The New York corrections commissioner rejected the suggestion and noted the prisoner could apply to the sentencing New York judge for a sentence modification.8 On October 11, 1993, Governor Mario M. Cuomo of New York wrote to Governor David Walters of Oklahoma that I’m sure that in adopting the Compact on the Interstate Agreement on Detainers my Legislature did not intend that I or my appointees could negate a New York sentence and choose another state’s because we liked it more. . . . Only a New York Court could change the New York sentence.9

New York State Supreme Court Justice Charles Kuffner, the sentencing justice, disagreed that he could change the sentence and explained, “the only way the case can go away is if the Governor either exercises clemency or pardon as part of his prerogative under the executive branch of government. He is the only one who has that power.”10 Judge Sealy in his October 8, 1993, opinion did not enjoin the scheduled October 19, 1993, execution of Grasso. However, twelve hours before the scheduled hour the judge enjoined the execution and added New York could force Grasso to serve his New York sentence.11 Governor Cuomo was criticized during the 1994 election campaign by Republican gubernatorial candidate George E. Pataki for returning fugitive James Harris to Alabama to complete a prison sentence and rendering Shawn Williams to South Carolina to stand trial for the murder of one man and the wounding of a second man. If convicted, Williams would be subject to the death penalty. The governor issued a statement contending: [T]he law required me to sign orders returning Harris to Alabama and Williams to South Carolina, and I obeyed the law, notwithstanding Williams may have to face a death penalty. . . . At the same time, the law required me to return Thomas Grasso, a man convicted of murder in New York to Oklahoma to stand trial there for another murder. . . . The law also required that Grasso be returned to New York to complete his prison sentence here before being sent to Oklahoma to receive the death sentence. Once again, I had no choice but to obey the law.12

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Pataki pledged if elected he would return Grasso to Oklahoma for execution. Pataki was elected and returned Grasso to Oklahoma where he was executed on March 20, 1995. CHILDREN COMPACTS Numerous couples desire to adopt children, and the children available for adoption may reside in another state. In the absence of an interstate compact, there typically would be several legal impediments that would have to be overcome by a couple seeking to adopt a child residing in a sister state. States also face a problem involving juveniles who cross state borders in running away, or escaping from a custodial institution, or absconding to escape prosecution. An interstate compact facilitates the return of these juveniles to the demanding state. Placement of Children The need for a compact to regulate the interstate movement of children became apparent in the 1950s to a group of social service administrators in east coast states who decided to study problems associated with the movement of children out of a state for adoption or care in a sister state. The Maine State Legislature in 1961 was the first one to enact a compact establishing a uniform law in member states on the placement of children for adoption and placement of an adjudicated delinquent who is in need of special programs or services not available in the home state. Article IX of the compact opens membership to “any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of Congress, the Government of Canada or any province thereof.” The compact excludes from its coverage placements in medical and mental health facilities, boarding schools and other educational institutions, and placements made by a parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or the guardian of a child. Compact Article III(b) stipulates that prior to sending to a member state a “child for placement in foster care or as a preliminary to a possible adoption” the state sending agency must send a written request (see Figure 5.1) to the potential recipient state containing the following: 1. The name, date, and place of birth of the child. 2. The identity and address or addresses of the parents or legal guardian. 3. The name and address of the person, agency, or institution to or with which the sending agency proposes to send, bring, or place the child.

Figure 5.1 Interstate Compact Placement Request

Source: Guide to the Interstate Compact on the Placement of Children (Washington, DC: American Public Human Services Association, 2000).

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4. A full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made.

The potential receiving state is authorized to request additional information to facilitate the compact’s policy. A child cannot be brought or sent to another party state until the potential receiving state notifies the sending agency the proposed placement will be in the best interests of the child. The sending agency, under Article V, retains “jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, and disposition of the child which it would have had if the child had remained in the sending agency’s state until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.” Article VII of the compact directs the executive of each compact member jurisdiction to designate a compact administrator who, in conjunction with counterparts in other jurisdictions, is empowered to promulgate rules and regulations facilitating implementation of the compact. All compact members pay dues to the Association of Administrators of the Interstate Compact on the Placement of Children which provides advice to the states and is an affiliate of the American Public Human Services Association. The New York State Office of Children and Family Services is a compact administrator and processes annually from 14,000 to 16,000 pieces of caserelated correspondence received or generated by the office.13 The Association of Administrators of the Interstate Compact on the Placement of Children recommends a maximum of thirty working days for the processing of requests by the potential receiving state and the making of a decision to approve or deny the requested placement.14 New York’s Deputy Compact Administrator James M. Keeler reported the average placement time in 2001 was approximately six months because the bureaucratic process is very cumbersome.15 He reported relations between states generally are cooperative but noted two states were particularly slow due to the administering agencies lacking adequate resources. Juveniles Magazine articles in the 1950s highlighted the plight of runaways and stimulated a number of national organizations—American Public Welfare Association, Council of State Governments, National Association of Attorneys General, and others—to develop an interstate compact that was approved by the organizations in 1955. All states, the District of Columbia, Guam, and the Virgin Islands joined the compact by 1986. The Interstate Compact for Juveniles, patterned on the Compact on Probation and Parole (see below), is concerned with juvenile absconders, parolees, probationers, and runaways, and is administered with the assistance

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of the Association of Juvenile Compact Administrators. In common with higher education compacts, the Interstate Compact for Juveniles provides for housing them, if needed, in correctional facilities in other states. Specifically, the compact applies to a juvenile who (1) has been placed on parole or probation and wants to reside in a sister state, (2) absconded from parole or probation or escaped from an institution to another state, (3) is in need of institutional care or specialized services in a sister state, (4) has a court proceeding pending as an accused delinquent or neglected or dependent juvenile and runs away to another state, and (5) has left home without the consent of a parent or guardian (see Figure 5.2). It is important to note the age requirements for trying juveniles as adults in a court vary from state to state. The New York State compact administrator reported in 2001 that many local governments are unaware of the compact and its procedures.16 New York State in the period July 1, 1999, to June 30, 2000, returned 1,924 juveniles to other states—1,136 absconders, 113 escapees, and 675 runaways.17 During the same time period, 1,946 juveniles were returned by other compact jurisdictions to New York: 990 absconders, 87 escapees, and 869 runaways. Article VII(c) of the compact establishes procedures for returning to the sending states juveniles who are on cooperative supervision as parolees and probationers in other states. Their national numbers total an estimated 20,000 to 30,000 annually. New York received 1,380 juveniles for parole supervision and 6,223 juveniles for probation supervision during the period July 1, 1999, to June 30, 2000. The above numbers suggest the administrative problems involved for the demanding state. Travel arrangements for returning juveniles to their home states is complicated by the failure of some compact members to send an officer to escort a juvenile because of the added cost. If a juvenile is unescorted, he/she simply may disembark from an airliner, bus, or train in his/ her home state and disappear. Furthermore, if there is a layover at an airport on the journey, the juvenile may disembark at that airport.

CORRECTIONS COMPACTS Three regional corrections compacts predate the national compact. The Western Interstate Corrections Compact was drafted by a committee of the Western Governors’ Conference in 1958 and has been enacted by the state legislatures in Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming, and the Territory of Guam. The compact also permits any state contiguous to a member state to enter into the compact. Member states are authorized to transfer prisoners to the custody of other member states, but the authorization has not been utilized often. Disagreements over “development of special re-

Figure 5.2 Interstate Compact on Juveniles Requisition Form

Source: Interstate Compact on Juveniles.

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gional institutional programs” are responsible for the relative lack of use of the compact.18 The New England Corrections Compact was drafted in 1959 and enacted by all New England State Legislatures between 1960 and 1962. The compact is similar to the western one, and authorizes a member state to sign a contract with another member state to confine offenders in each other’s institutions. Although the sending state is responsible for the cost of confinement of a prisoner in another state, the states generally “trade” prisoners and no payments are required. The New England Coordinating Council administers the compact. Twelve states are members of the Interstate Compact on Mentally Disordered Offenders that is the product of a 1965 resolution of the Midwestern Governors’ Conference. There are two types of mentally disordered offenders—individuals who are charged or have committed criminal acts but cannot be convicted because of their mental condition and individuals who become mentally ill in prisons. The compact promotes interstate cooperation relative to institutionalization, aftercare, and cooperative research and training of public personnel. In addition, the compact provides interjurisdictional procedures for disposition of a criminal charge pending against a person adjudicated as a mentally disordered offender. The national corrections compact, first enacted by the Nevada State Legislature in 1974 and based upon congressional consent in advance granted in 1949, promotes interstate cooperation relative to the confinement, rehabilitation, and treatment of prisoners.19 The compact authorizes a party state to contract to have one or more of its prisoners confined in a penitentiary in another state because of the lack of proper facilities in the home state. It, however, retains jurisdiction over the transferred prisoners who can be removed from their places of confinement for such purposes as placement on parole or probation. The sending state is responsible for reimbursing the receiving state housing the prisoner(s) for all expenses incurred. The 1984 New York State Legislature enacted the compact, but New York houses none of its prisoners in out-of-state institutions.20 The state houses one out-of-state woman prisoner, Pamela Smart, who was sentenced by a New Hampshire court to life imprisonment without the possibility of parole for the murder of her husband in 1990. New Hampshire lacks a maximum-security prison for women. Two teenagers, who plead guilty to assisting Ms. Smart to plan the murder of her husband, were sentenced to respective prison terms of twenty-eight and eighteen years, and in 1992 were transferred for security reasons to the Maine Correctional Center where they are serving their prison terms.21 Vermont also is considering transferring its exploding population of women prisoners to prisons in other states. Texas tripled the size of its jail and prison systems during the period

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1991–1996 and filled them in part with 3,776 prisoners in 1996 from eleven sister states desiring to save money or with prison overcrowding problems.22 The cost of housing a prisoner is approximately one-half of the cost of such housing in several of the sending states. Such transfers have been criticized on the grounds the prisoners may be separated by long distances from members of their immediate families and conditions in the prisons to which they have been transferred may have lower standards than prisons in the prisoners’ home states. Furthermore, persons residing near Texas jails and prisons worry about the possible escape of violent criminals, including child molesters, murderers, and rapists. In addition, several critics maintained the Texas correctional system is based upon the concept of punishment in contrast to the concept of rehabilitation in a sending state such as Colorado. In 1999, Connecticut sent 500 of its prisoners to Virginia’s Wallens Ridge State Prison, a super-maximum security prison.23 There were three reasons for the transfer: (1) Connecticut prisons were overcrowded, (2) prison gangs needed to be broken up, and (3) Virginia could house each prisoner daily for $28 less than the $92 per day Connecticut incarceration cost.24 Virginia receives approximately $11 million annually from Connecticut for housing its prisoners. Interestingly, the transfer of the prisoners reduces the state’s population resulting in the loss of approximately $2.8 million per year in federal grants based on population, such as highways, schools, and social services for disabled, low-income, or unemployed persons. EMERGENCY MANAGEMENT ASSISTANCE The cold war prompted the Council of State Governments’ Northeastern Committee on Civil Defense and the National Security Resources Board’s Civil Defense Office to draft the Civil Defense and Disaster Compact that was enacted in 1949 by the Indiana, Maine, and Maryland State Legislatures and granted consent by Congress in 1950.25 Every state and territorial legislature enacted the compact by 1959. The compact did not require training sessions or standard operating procedures for the dispatch of assistance to requesting states. A regional mutual assistance compact—Southern Interstate Nuclear Compact—was drafted by the Southern Interstate Nuclear Board (now Southern States Energy Board) and consented to by Congress in 1962 (see Chapter 4).26 This compact is limited to emergencies involving radioactive incidents. The Midwestern Governors’ Conference and the Southern Governors’ Conference in 1967 approved the National Guard Mutual Assistance Compact that subsequently was enacted into law by the Alaska, Florida, Kansas, North Carolina, South Carolina, and Virginia State Legislatures. This com-

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pact was similar to the Civil Defense and Disaster Compact and also provided for the use of the National Guard of each state in emergency situations in other states. The compact did not receive congressional consent. The threat from the Soviet Union declined with the signing of various treaties and the breakup of the Soviet Union, and the Civil Defense and Disaster Compact no longer was utilized. Hurricane Andrew in 1992, however, revealed the need for a mutual assistance compact. The Southern Governors’ Association drafted the Southern Regional Emergency Assistance Compact that was signed by all southern governors in 1993. Congress in 1995 authorized the Director of the Federal Emergency Management Agency to “[a]ssist and encourage the States to negotiate and enter into emergency preparedness compacts.”27 In the same year, southern governors approved a compact amendment opening membership to all states and territories, and Congress in 1996 granted its consent to the Emergency Management Assistance Compact entered into by Delaware, Florida, Georgia, Louisiana, Maryland, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Virginia, and West Virginia.28 Congress, as customary, reserved its right to alter, amend, or repeal its consent. Forty-one states, Puerto Rico, the District of Columbia and the Virgin Islands currently are members. In 1998, only twenty-eight states were members. The New York State Legislature enacted the compact six days after the September 11, 2001, terrorist attacks on the twin towers of the World Trade Center in New York City. A state may withdraw from compact membership by enacting a statute repealing the compact, and the withdrawal becomes effective thirty days after the governor notifies the governors of the other party states. Thirteen states provided assistance to New York subsequent to the attack on the World Trade Center. The Massachusetts National Guard, for example, sent members to patrol the Watervliet Arsenal in Watervliet, New York. Article VII of the compact acknowledges “the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party” to the compact and adds “nothing herein shall preclude any state entering into a supplementary agreement with another state or affect any other agreement already in force between states.”29 These agreements pertain to evacuation and care of injured and other individuals, and exchange of communications, fire, police, public utility, reconnaissance, transportation, and welfare equipment, personnel, and supplies. This mutual aid concordat allows states to assist each other in responding to earthquakes, hurricanes, terrorist attacks, waste spills, wildfires, and so forth. Equipment and personnel can be sent quickly to the state suffering from an emergency via the compact that provides a request for assistance is a legally binding contract making the requesting state responsible for

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reimbursing all out-of-state costs, liable for the death or injury of personnel from sister states, and responsible in tort for the actions of personnel from other states. The U.S. Supreme Court in 1979 held a state worker on official business in another state was not immune from suit in the state’s courts.30 The compact’s provisions solve the liability problem by preventing out-of-state emergency personnel being sued in a requesting state’s courts and the state providing assistance being found liable for damages. Article IV of the compact stipulates states are not required to provide assistance if it would leave the state without “reasonable protection.” Christopher J. Duryea surveyed members of the compact in 1999 and reported all respondent states in receipt of assistance were southern coastal states.31 His respondents rated, on a scale of 1 to 10, the reimbursement system 8.0, the liability system 8.1, response times 10.0, and effectiveness 9.5. The National Guard of each state is under the control of the governor unless the president calls it into federal service. Historically, the governor of a state has activated National Guard units to respond to in-state emergencies. Although there is no Interstate National Guard Compact in effect, the National Guard of one state has assisted other states on a limited basis. The Emergency Management Assistance Compact, for example, served as the vehicle for Florida’s employment of Alabama and Mississippi National Guard helicopters in responding to the damages caused by Hurricane Opal.32 Congress in 1994 directed the director of the Federal Emergency Management Agency to enter into a contract with the National Academy of Public Administration to study the role of the National Guard in responding to domestic emergencies and national disasters. In its 1997 report, the academy focused on the dual missions of the National Guard: serving as the Army and Air Force primary combat reserve and “ensuring public safety, protecting property, and maintaining public order.”33 The study concluded the dual mission complicates the emergency response ability of the National Guard, emergency management organizations have not drawn fully upon the National Guard for assistance, and the Association of Adjutants General of the United States should work with other state associations to promote the establishment in each state of an interstate compact committee that will coordinate its efforts with Congress to secure its consent for a national compact.34 MOTOR VEHICLE COMPACTS State motor vehicle departments are highly professional, fully computerized, and engaged in numerous routine activities, particularly the issuance, suspension, and revocation of various types of operator’s licenses.

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Figure 5.3 Driver License Compact Member States

States have entered into two compacts relating to driver licenses. The first one is designed to assist in the removal of dangerous drivers from public highways. The second one has two goals: (1) ensure operators respond to summons or appearance tickets issued by officers in member states for motor vehicle violations and (2) determine whether applicants for an operator’s license have held or hold a license issued by a party state. Driver License Compact The driver license compact is an important one that currently has fortyfive members; only Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin are not members (see Figure 5.3). Article III of the compact requires each party state to report each conviction of a driver from another party state to the home state licensing authority. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code, or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered, or the conviction was a result of the forfeiture of bail, bond, or other security, and shall include any special findings made in connection therewith.

The home state is required by Article IV to treat the reported conduct as if it occurred in the home state relative to convictions for the following: 1. Manslaughter or negligent homicide resulting from the operation of a motor vehicle;

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2. Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle; 3. Any felony in the commission in which a motor vehicle is used; 4. Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.

In the event the statutes of a party state do not address offenses or violations in the identical words employed above, the state is authorized by the compact to construe the compact terms as encompassing similar offenses and violations. Article V of the compact outlines the procedure for applications for new driver licenses and requires the licensing authority of every member state to determine whether an applicant has held or currently holds a driver’s license issued by another member state(s). In the event the applicant has held such a license and it has been suspended or revoked, the party state may not issue a license. Furthermore, the state may not issue a license to the holder of a license issued by another party state unless the license is surrendered by the applicant. The compact contains a savings clause (Art. VI) providing a party state has the right to apply any of its other statutes relating to a driver’s license, and the compact does not affect any driver license cooperative agreement between a party state and a non-party state. The head of the driver licensing authority is designated, by Article VII, the compact administrator who is required to facilitate compact administration by providing member states with all relevant documents and information. Article VIII authorizes a state to enter the compact by enacting it into law and withdraw from the compact by enactment of a statute repealing the same provided the governor of the withdrawing state gives six months notice to the governors of the other party states. Tennessee, for example, became a member of the compact in 1965, but withdrew in 1997. Massachusetts, a state bordering New York, is not a member of the compact. If a Massachusetts driver is convicted of a motor vehicle violation in New York, the individual’s privilege to drive in New York will be suspended. Such suspensions are common.35 When New York receives evidence of a violation from a compact member state, the department of motor vehicles sends a notice to the driver that his/her license will be suspended in thirty days unless the charge is settled. New York State courts notify the department of settlements, but a New York driver must notify the department of out-of-state court settlements. On rare occasions, New York receives reports of violations by its registered drivers from non–compact members. New York does not suspend the licenses of the concerned drivers, but does notify these drivers of its receipt of the violation reports. New York has a problem with the wording of compact Article IV(4):

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Figure 5.4 Nonresident Violator Compact Jurisdictions

“Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.” The New York statute uses the term “failure to aid” which is not in the compact. In consequence, if another party state certifies a New York driver simply failed to stop, the New York Department of Motor Vehicles can take no action against the concerned driver. New York State Driver Safety Director Erle R. Daniels reported in 2000 that all members of the Driver License Compact fully cooperate with each other, and each state has a help desk to assist other party states to solve a problem.36 Nonresident Violator Compact Forty-four states have entered into the 1977 nonresident violator compact designed to ensure nonresident drivers answer appearance tickets or summons for moving traffic violations.37 Alaska, California, Michigan, Montana, Oregon, and Wisconsin are not members (see Figure 5.4). The New York State Legislature has not enacted the compact, but did authorize the commissioner of motor vehicles to execute the compact. Article III of the compact requires each party state to report each conviction of a driver from another party state to the home state licensing authority. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code, or ordinance violated; identify the court in

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which the action was taken; indicate whether a plea of guilty or not was entered, or the conviction was the result of the forfeiture of bail, bond, or other security; and shall include any special findings made in connection therewith.

The purpose of the compact is to ensure nonresident motorists are treated in the same manner as resident motorists and have their due process of law rights protected. The compact provides a licensed driver issued an appearance ticket or summons in another state for a minor moving violation covered by the compact will not be detained or required to post bail or collateral. Should the driver fail to respond to the appearance ticket or summons, his license may be suspended by the issuing state “until he submits to the jurisdiction of the court or administrative tribunal in which such summons or appearance ticket is returnable.”38 In other words, a member state can take no action other than suspension of the driver’s license of a person failing to respond. New York, however, may not suspend a license if the reported case is an “old one” or the violator made a good faith effort to resolve the problem.39 MENTAL HEALTH Only Arizona, California, Mississippi, Nevada, and Virginia are not members of the 1955 Interstate Compact on Mental Health that provides in Article I the member states find that the necessity of and desirability for furnishing such care and treatment bear no primary relation to the residence of citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all who are in need of them.

Article V places a mandatory duty on each compact state to notify all appropriate authorities in the state and other states whenever a dangerous patient escapes from one of its institutions. Transfers among states are voluntary and states are most reluctant to accept sexual predators. New York’s experience reveals the most cooperative states are ones New York interacts with on a regular basis. Many Florida families, for example, originally resided in New York.40 Massachusetts and New York have an informal agreement providing that a person who escapes from a facility in either state automatically will be returned without a time-consuming paperwork process. New York has found only three states to be especially uncooperative. Problems in implementing the compact are traceable to the decentralized nature of mental health systems in the United States. Each state system differs from other state systems and the differences can lead to conflict and problems. If a state, for example, has a limited number of beds in its fa-

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cilities, it may decide to exclude patients from sister states. The managed care system was more centralized at the time the compact was enacted, and today’s decentralized system does not fit a number of the compact provisions. PAROLE AND PROBATION Forty-seven states (plus Puerto Rico, the Virgin Islands, and Washington, D.C.) are members of the Interstate Compact for Supervision of Parolees and Probationers that received the consent of Congress in advance in 1934.41 Each state acts as the agent of other member states in the supervision of specified parolees and probationers. Juveniles, except in a few states that convict them as adults, are not covered by the compact (see the Compact on Juveniles above). The state compact administrators, appointed by the governor under Article 5, coordinate their activities through the Parole and Probation Compact Administrators Association and also are authorized to promulgate rules and regulations to facilitate compact implementation. The compact is somewhat unusual in permitting party states to sign side agreements, termed variances, with each other. For example, a variance may involve a member state sending drug addicts to another compact state for counseling and other programs because the sending state does not offer such a program. The Out-of-State Incarceration Amendment authorizes the incarceration in the state of supervision of a person who violates parole or probation, thereby eliminating the return of the violator to the state that imposed the sentence. This compact amendment is effective only in the states that have enacted it. The frequency of contact between state administrators of the compact varies considerably. The New York State Division of Parole interacts with all members of the compact, typically has approximately 1,400 cases sent to other states, and has received approximately 1,000 cases from member states at any given point in time.42 As one would anticipate, New York State interacts most frequently with neighboring states—Massachusetts and New Jersey—and may have only one or two Utah cases annually. Cooperation generally is good, but a state occasionally hesitates to accept a case. The compact has provisions mandating that a state in certain cases must accept a person placed on parole in another state and other provisions allowing a state to exercise discretion whether to accept a parolee. For example, a compact state must accept a person who has a job and a family. States on occasion are reluctant to take back indigent persons or those on welfare although the compact mandates they be accepted. High profile cases involving sex offenders present difficult problems, and states tend to be reluctant to accept them. In addition, an east coast state, for example, may be hesitant to have individuals returned if high costs are involved because the individual is being released on parole in Hawaii or a west coast

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state. Problems also are created when states send persons to another compact state without first determining whether the state will accept them. The original compact lacks enforcement provisions, and the use of an impartial board would be helpful in rendering a decision whenever there is a dispute between states.43 Nine states have joined a revised compact covering parole, probation, and travel permits; requiring victim notification and their input into the decision-making system; and mandating stricter state reporting.44 This compact also provides for sanctions on states not complying with its provisions and will not become effective until thirty-five states have enacted it in identical form. SUMMARY Experience with the reviewed compacts reveals interstate administrative cooperation generally is excellent although problems are associated with a few compacts. The Agreement on Detainers is essential if defendants are to be accorded speedy trials. The only controversial detainers case involved New York and Oklahoma, and the circumstances were most unusual and probably will not be repeated. The importance of the children’s compacts is indicated by their enactment by all states and the District of Columbia. Interstate administrative cooperation is generally good for both compacts, but because of the added cost, a few states fail to send an officer to escort a juvenile who may disembark in the home state and disappear. The national and regional corrections compacts tend to be relatively noncontroversial although complaints are made by members of a transferred prisoner family it is more difficult and costly for them to visit the prisoner. These compacts are particularly valuable to a state that lacks a specialized correctional facility and/or has prison overcrowding. The Emergency Management Assistance Compact of 1996 has a growing membership, and all state legislatures probably will enact it because it addresses cost reimbursement and liability problems. Currently, only southern coastal states and New York have received assistance under the compact. Interstate administrative cooperation under the Driver’s License Compact and the Non-Resident Violator Compact is excellent. These compacts are essential for the removal of unsafe drivers from public highways. The Mental Health Compact generally has been successful in achieving its goals. The major compact problem involves the natural reluctance of states to accept sexual predators. The Parole and Probation Compact plays an important nole in the rehabilitation of criminal offenders. In general, administrators in sister states cooperate fully with each other, yet a few states on occasion are reluctant to accept indigent persons and sexual offenders. Administratively, a problem is created when a state fails to determine in advance whether another

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state will accept a person. A revised compact addresses this and other problems of the original compact. Chapter 6 is devoted to formal and informal agreements between administrators in sister states that often relate to the same subjects as interstate compacts. The twentieth century witnessed a sharp increase in such agreements and many are of great importance.

NOTES 1. Interstate Agreement on Detainers, 84 Stat. 1397 (1970), 18 U.S.C. App. §2. 2. Suggested State Legislation Program for 1957 (Chicago: The Council of State Governments, 1956), pp. 178–85. 3. Cuyler v. Adams, 449 U.S. 433 (1981). 4. Murdock v. City of Memphis, 87 U.S. 590 (1874). 5. Sarah Lyall, “New York Battles Oklahoma over Custody of Murderer,” New York Times, May 6, 1993, p. 1. 6. Ibid., B10. 7. Coughlin, et al. v. Poe, et al., U.S. District Court, Muskogee, Oklahoma, No. 93–558-S, 1993. 8. News release issued by New York Commissioner of Corrections Thomas A. Coughlin III, Albany, NY, October 11, 1993. 9. News release issued by Governor Mario M. Cuomo, Albany, NY, October 11, 1993. 10. Marc Humbert, “Governor Says Cuomo Letting Personal Bias Drive Grasso Case,” Times Union (Albany, NY), October 13, 1992, p. B2. 11. Doug Ferguson, “Federal Judge Rules Killer Must Serve New York Sentence,” Times Union (Albany, NY), October 19, 1993, p. 1. 12. News release issued by Governor Mario M. Cuomo, Albany, NY, December 28, 1993. 13. Research Associate Nicholas J. Parrella’s interview with Deputy Compact Administrator James M. Keeler, New York State Office of Children and Family Services, Menands, NY, February 13, 2001 (hereafter referred to as Keeler interview). 14. Guide to the Interstate Compact on the Placement of Children (Washington, DC: American Public Human Services Association, 2000), p. 5. 15. Keeler interview. 16. Research Associate Nicholas J. Parrella’s inteview with Dianne Miller of the New York State Office for Children and Family Services, Rensselaer, NY, February 14, 2001. 17. Data obtained from the Association of Juvenile Compact Administrators. 18. The Handbook of Interstate Crime Control (Lexington, KY: The Council of State Governments, 1978), p. 41. 19. 63 Stat. 107 (1949). See also Nevada Revised Statutes Annotated, Chap. 215A. 20. Information supplied by the Public Information Office, New York Department of Corrections, January 30, 2001.

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21. “2 Teens in Smart Case Move to Maine Prison,” Keene (NH) Sentinel, October 6, 1992, p. 5. 22. Sam H. Verhovek, “Texas Caters to a Demand around the U.S. for Jail Cells,” New York Times, February 9, 1996, pp. 1, A24. 23. “Conn. to Send 500 Inmates to VA to Ease Overcrowding,” Union Leader (Manchester, NH), October 26, 1999, p. A3. 24. Paul Zielbauer, “Prisoner’s Death Renews Call to Stop Exporting Connecticut Convicts,” New York Times, April 7, 2000, p. B5. 25. Civil Defense Act of 1950, 64 Stat. 1245, 50 U.S.C. appendix §§ 2251–207. 26. 76 Stat. 249 (1962). 27. National Defense Appropriation Act for Fiscal Year 1995, 108 Stat. 3102, 42 U.S.C. §5196(h). 28. Emergency Management Assistance Compact, 110 Stat. 3877 (1996). 29. Ibid., 110 Stat. 3880 (1996). 30. Nevada v. Hall, 440 U.S. 410 (1979). 31. Christopher J. Duryea, “The Emergency Management Assistance Compact: An Analysis of the ‘Issues,’ ” a research paper prepared for an American federalism seminar, Rockefeller College, State University of New York at Albany, December 7, 1999. 32. The Role of the National Guard in Emergency Preparedness and Response (Washington, DC: National Academy of Public Administration, 1997), p. 91. 33. Ibid., p. xi. 34. Ibid., pp. 99–102. 35. Interview with Driver Safety Director Erle R. Daniels, New York State Department of Motor Vehicles, Albany, NY, October 19, 2000 (hereafter referred to as Daniels interview). 36. Ibid. 37. New York Vehicle and Traffic Law, §517, and Interstate Compact for Highway Safety, 78 Stat. 564 (1977). 38. New York Vehicle and Traffic Law, §517a. 39. Daniels interview. 40. Research Associate Christopher W. Labarge’s interview with Donna C. Baker of the New York Office of Mental Health, Albany, NY, November 17, 2000. 41. Crime Control Consent Act of 1934, 48 Stat. 909, 4 U.S.C. 112. Congress also reaffirmed its consent in 1949. See 63 Stat. 107 (1949). 42. Research Associate Christopher W. LaBarge’s interview with Supervisor Edward Mruczek of the Interstate Bureau of the New York State Division of Parole, Albany, NY, November 14, 2000. 43. Ibid. 44. Research Associate Christopher W. LaBarge’s interview with Counsel Lynda Valenti, New York Division of Probation and Correctional Alternatives, Albany, NY, November 10, 2000.

Chapter 6

FORMAL AND INFORMAL ADMINISTRATIVE AGREEMENTS

The framers of the U.S. Constitution fully recognized cooperative interstate relations were essential for the success of the new federal system. In consequence, they included provisions in the fundamental document to promote harmony between sister states—full faith and credit, privileges and immunities, and rendition, and authorization of interstate compacts.1 The first three provisions are based upon the overarching principle of legal reciprocity, and compacts, except those on boundaries or to conduct studies, establish a uniform law within the covered geographical area. The Constitution contains many silences, and one of the most important silences relates to ad hoc and permanent interstate joint and reciprocal administrative agreements to solve governmental problems. There was relatively little need for such agreements during the early decades of the federal system. The railroad initially, and the motor vehicle subsequently, increased greatly interstate commerce and personal travel, thereby necessitating interstate administrative cooperation on a wide variety of matters to smooth the functioning of the federal system. Today, the number of formal and informal administrative agreements is large, yet little scholarly attention has been devoted to them. Democratic theory posits the importance of establishing governmental and public officer responsibility to facilitate the ability of voters to hold governments and civil servants accountable for their actions and inactions. The relative lack of public information on administrative agreements, particularly verbal ones, makes it difficult for citizens and elected representatives to exercise oversight over the implementation of these agreements, thereby raising questions whether such agreements are subject to abuse by state government administrators.

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This chapter catalogues a number of extraconstitutional formal and informal administrative agreements establishing interstate partnerships, draws a conclusion relative to possible abuse of such agreements, and suggests they should be an important element of a general theory of interstate relations. Making a study of such agreements more difficult is the lack of a central repository in any state containing written interstate administrative agreements. ADMINISTRATIVE AGREEMENTS State legislatures have enacted statutes granting broad discretionary authority to the heads of specific departments and agencies to enter into formal cooperative administrative agreements with their counterparts in sister states and/or Canadian provinces, Mexican states, and occasionally other nations. Such statutes allowed New England state governors and eastern Canadian provincial premiers to sign a series of agreements in 2000 pertaining to emergency assistance, higher education, and trade.2 The federal government also is involved in interstate agreements. That involvement is illustrated by an agreement establishing a task force—ten federal government agencies, nine Mississippi River basin states, and two Indian nations—in 2001 charged with developing an action plan for reducing the Gulf of Mexico “dead zone” by 50 percent over the subsequent fifteen years.3 Congress also has encouraged interstate cooperation to remove unsafe motorists from highways, reduce ozone, and solve other problems.4 A formal covenant may authorize only exchange of information, a study, or cooperative administrative action. Agreements cover many subjects including acid rain reduction, air pollution abatement, fisheries, construction of fish ladders on hydroelectric dams, criminal intelligence, driver license and vehicle registration reciprocity, firearms control, housing of felons in the prisons of other states, lotteries, mutual emergency assistance, protection of the Long Island Sound ecosystem, standardized requirements for interstate shipment of bees, and welfare fraud. A review of the New York consolidated statutes reveals several sections authorizing formal agreements. The governor or the commissioner of motor vehicles is authorized to “enter into a written agreement or compact with any state authorized to be a party to such compact or affected by such reciprocal provisions.”5 The commissioner also is granted authority to sign a reciprocal agreement with a counterpart sister state commissioner pertaining to the appearance of a person licensed in one state to answer a summons or an appearance ticket for a moving traffic violation issued by an officer in the other state.6 In addition, the commissioner specifically is granted authority to become a member of the International Registration Plan.7 Relative to the latter, Congress exercised its interstate commerce

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power and enacted the Motor Carrier Act of 1991 whose practical effect is to pressure all states to participate in the plan.8 A state failing to participate in the plan is deprived of authority to establish and enforce any other commercial registration plan. This act similarly pressures states to participate in the International Fuel Agreement by forbidding them to enact a statute or promulgate a regulation levying a fuel tax unless it conforms with the agreement “with respect to collection of such a tax by a single base state and proportional sharing of such taxes charged among the states where a commercial vehicle is operated.”9 The New York commissioner of transportation is granted authority to enter into contracts with adjoining states for the construction, maintenance, and reconstruction of state highway connections.10 The agriculture commissioner may sign uniform milk control agreements, including sanitary ones, with other states and the federal government.11 The commissioner of social services is empowered to sign reciprocal concordats with sister state commissioners providing for the interstate transportation of dependent and indigent persons, and to arrange for the acceptance, transfer, and support of persons receiving public assistance in other states.12 In addition, the commissioner of public health may sign similar contracts with counterpart officers in sister states relative to the interstate transportation of persons with tuberculosis, and for their hospital care and treatment.13 Cooperative and reciprocal administrative agreements may be entered into by all states, a majority of states, or most commonly two or more states in a region. The Massachusetts Department of Mental Diseases and the New York State Hospital Commission in 1925, for example, signed a document under which a resident of one of the states who becomes insane and a public charge in the other state will be returned to an institution in his/her state of residence.14 New York in that year had similar administrative arrangements with ten additional states. The number of new formal agreements varies from year to year. Governors typically are signatories to ones that attract considerable public attention. An example is a statement of principle against oil drilling in the lakes signed by Great Lakes governors and Canadian provincial premiers in 1986.15 The year 1993 was a fruitful one for formal agreements. Maine, New Hampshire, and Vermont decided to study jointly high technology communications among doctors and between patients and doctors, staffing requirements for hospitals, and health education programs for professionals and citizens.16 Maryland, West Virginia, and the Interstate Commission on the Potomac River Basin established a cooperative program to improve water quality and restore biological life to a section of the North Branch of the Potomac River.17 Governor Robert P. Casey of Pennsylvania and Governor William D. Schaefer of Maryland signed an agreement to build fish ladders at three hydroelectric dams in order to restore migratory fish to the Susquehanna River.18 The governors of Maryland and Virginia and

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the mayor of the District of Columbia jointly directed the Metropolitan Washington Air Quality Committee to prepare recommendations for a regional ozone control strategy.19 And transportation authorities in seven northeastern states signed an agreement providing for an E-Z Pass system for toll booths (see below). New York state officers have been concerned with the inadequacy of federal gun control statutes for years and in 1993 entered into memoranda of understanding with Florida, Georgia, Ohio, Texas, and Virginia—the major sources of unlicensed guns in New York—to identify, apprehend, and prosecute firearms traffickers. New York also established a threemember gun-tracing unit to cooperate with police in other states and federal officers in the conduct of joint investigations of illegal firearms traffic.20 Connecticut, New York, and the U.S. Environmental Protection Agency (EPA) entered into a 1994 agreement to protect the Long Island Sound ecosystem by limiting sewage and industrial discharges into the sound, reducing nonpoint pollution sources, and renovating sewage treatment plants.21 In the same year, Governor Mario M. Cuomo and Governor Pedro Sossello of Puerto Rico signed a concordat to share education, health, law enforcement, and social services resources.22 New York State is home to more than one million Puerto Ricans. In 1996, Governor George E. Pataki of New York, Governor Howard Dean of Vermont, and EPA representatives approved a comprehensive management plan designed to improve and protect the water quality of Lake Champlain.23 Informal cooperation is considerably more common than formal cooperation with the subject matter ranging from agricultural products to professional licensing. An interviewed Pennsylvania deputy attorney general explained informal understandings are popular because they give administrators greater flexibility than written agreements.24 Department and agency heads in each state are in relatively frequent contact with their sister state counterparts, particularly those in bordering states, and informally agree upon cooperative arrangements relating to a wide variety of matters—consumer fraud, forest fires, “hot pursuit” chases of fleeing motor vehicles, loan of personnel and equipment, use of a specialized state laboratory facility by a department or agency of another state, and other activities. Such agreements most often relate to emergency situations. Interviews with New York State officers and newspaper articles reveal the number of such agreements is surprisingly large. National and regional associations of state government officers—by means of annual meetings, newsletters, and electronic and printed reports— encourage members to enter into formal and informal cooperative endeavors. The personal contacts established by state officers attending professional meetings also facilitate entrance into cooperative agreements. National and regional associations of governors in particular have been

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especially successful in promoting interstate cooperation in a wide variety of functional fields. SELECT AGREEMENTS The following sections examine specific formal and informal agreements on a variety of significant subjects in greater detail. Agriculture Although declining in importance as a contributor to the gross domestic product, agriculture remains a major industry whose success often depends upon informal interstate cooperation to stop the spread of animal and plant diseases and insect pests. Rabies is always a threat and a Regional Continuing Committee on Rabies Control was established in 1949 by New Jersey, New York, and Pennsylvania to develop an effective control program.25 New York, whose largest industry is agriculture, currently will accept animals on a very informal cooperative basis if they are accompanied by certificates of veterinary inspection issued by the sending states.26 Another example is a memorandum of understanding—Regional Dairy Quality Management Alliance—based on New York standards and signed by thirteen states. The alliance seeks to ensure “a healthful and safe food supply by advocating the adoption of best management practices that promote animal health/welfare, improve profitability of dairy farms, and encourage environmental stewardship.”27 Criminal Justice Agreements These agreements involve primarily state attorneys general and police agencies, but state welfare officers also cooperate with each other to detect welfare fraud and refer such fraud to prosecuting attorneys. Attorneys General The attorney general is a state’s chief legal officer, possesses broad prosecutorial discretionary authority, and works closely with his/her counterparts in other states and criminal justice agencies. The latter cooperate with each other on many matters including criminal intelligence. The constitution in forty states and a statute in ten states created the office of attorney general whose incumbent is elected by voters in fortythree states, the Maine State Legislature, and the Tennessee Supreme Court. The governor appoints the attorney general without confirmation in Wyoming, but the governor’s appointment is subject to confirmation by both houses of the Alaska State Legislature, the Senate in Hawaii and New Jersey, and the Executive Council in New Hampshire.

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An attorney general has many responsibilities including representing the state whenever it is a party to an in-state or interstate suit, providing billdrafting services in fifteen states, acting as the legal adviser to the governor and departments in several states, initiating local prosecutions in forty-six states, superseding local prosecutors in thirty-five states, and, as authorized by Congress, exercising concurrent enforcement powers with federal departments and agencies in regulatory fields that historically were the sole responsibility of the U.S. government. State attorneys general engage frequently in cooperative interstate projects primarily through the National Association of Attorneys General (NAAG), organized in 1907, which encourages joint state law enforcement efforts, adopts positions on legal issues, conducts research and provides information to members, supports attorneys general who have cases before the U.S. Supreme Court, advocates enactment of uniform state laws and amendment of federal laws, and facilitates intercourse between members. Forty states and the Puerto Rican attorneys general received national and international publicity when they sued five major tobacco companies and achieved a major out-of-court settlement with the companies to recover Medicaid costs totaling $246 billion incurred in treating residents for tobacco-induced illnesses.28 Similar successful lawsuits have been brought by groups of attorneys general relative to a variety of subjects such as false claims made for building siding and a conspiracy by contact lens manufacturers to restrict lens availability through retail stores. Ann Bowman examined joint state legal suits in the period 1992–1999 and found the number of such suits ranged from seven in three states to a high of fiftyone in Massachusetts; the average state was a party to seven such suits.29 Administratively, NAAG since 1985 has performed a quasi-legislative function by issuing guidelines containing uniform standards for the exercise of prosecutorial discretion. The guidelines are similar to uniform state laws, but do not require statutory enactment. Guidelines issued to date pertain to air travel industry enforcement, electricity marketing, environmental marketing claims, horizontal mergers, premerger disclosure, and vertical restraints. The merger guidelines were NAAG’s response to perceived lax enforcement of federal antitrust statutes.30 State attorneys general work with each other outside the NAAG framework. Cooperative investigations are common and are illustrated by joint ones leading to settlements including Telebrands, Incorporated agreeing to a 1996 settlement with seventeen attorneys general relative to its marketing of an allegedly unsafe hearing device, America Online and forty-four attorneys general reaching a 1997 agreement to settle access problems requiring the company to make refunds and change its advertising policy, a 1998 settlement by thirty-six attorneys general with the National College Registration Board accused of misleading college-bound students, a 2000 agreement by twenty-three attorneys general with Publishers Clearing

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House changing fundamentally how it conducts its sweepstakes promotions, and a 2001 settlement by forty-five attorneys general and the U.S. Department of Justice with the Bayer Corporation with respect to price fixing of drugs purchased through Medicaid. Criminal Intelligence Agreements Highly mobile criminals and organized crime groups proliferated in the United States and other nations after World War II, and a single police agency found it was impossible to track their activities. It became apparent the most effective method to apprehend criminals is through interstate and international cooperation, providing for the sharing of criminal intelligence by means of formal agreements. Five western European nations, for example, in 1990 formed the Schengen Information System, a central computerized database to assist police agencies.31 Most cooperative programs in the United States involve major crimes, manhunts, terrorist groups, and development of coordinated strategies. Criminal data depositories in the fifty states, District of Columbia, and Puerto Rico held on January 1, 2000, more than 59 million criminal history records including offenders with a record in more than one state.32 Eightynine percent of the records were automated; forty-five states had fully automated master name indexes. Six regional criminal intelligence programs have been organized in the United States. Southern and southwestern city and county police departments in the 1970s encountered numerous criminals who were active in jurisdictions in several states and often were organized. Crimes covered the complete range—armed robbery, narcotics, fraud, and murder. Informal and formal agreements were entered into by a number of police agencies providing for the sharing of intelligence information about recognized criminals. Out of these agreements came the Regional Organized Crime Information Center (RCIC) in the South, and the Quad State Project in the Southwest that has been renamed the Rocky Mountain Information Network (RMIN). Subsequently, four additional agreements were signed: the New England State Police Administrators Conference (NESPAC), the Middle Atlantic Great Lakes Organized Crime Law Enforcement Network (MAGLOCLEN), the Mid States Organized Crime Information Center (MOCIC), and the Western States Information Network (WSIN). Each project has rules protecting the privacy of individuals by limiting information access to member agencies. Each of the six projects operates a regional information sharing system (RISS) linked together by the RISS nationwide intelligence network— riss.net—that has four components: RISS Secure Intranet, Intelligence Database Pointer System, National Gang Database, and Investigative Leads Bulletin Board.33 The databases, as of December 31, 1998, contained in-

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formation on 623,609 individuals, 1998 inquiries totaled 849,649, and the number of “hits” was 109,404.34 Questions initially were raised as to the need for regional criminal intelligence networks because various U.S. departments and agencies, particularly the Federal Bureau of Investigation (FBI), collect such information. In 1981, the Committee on Government Operations of the U.S. House of Representatives issued a report explaining “[w]hile the Federal umbrella of enforcement agencies would appear to be able to assist greatly State and local police, the fact is that the Federal mission is usually focused upon a different level of violators. The Federal caseload is too great to permit regular dedication of significant amounts of resources to provide the assistance required.”35 Congress in 1974 decided to fund regional criminal intelligence projects, but by 1980 funding for such projects became an issue.36 The U.S. General Accounting Office (GAO) published a 1980 report that reviewed the projects and addressed concerns with respect to the networks’ relationship with federal law enforcement agencies, need for an oversight board, and evaluation of the projects.37 The House Committee on Government Operations in the same year concluded the then operational projects “have proven effective, . . . there is potential for greater effectiveness as they mature,” and they have provided important support to federal law enforcement agencies, especially the Drug Enforcement Administration (DEA) and the FBI.38 The committee recommended continued funding for the projects, and the U.S. Department of Justice issued guidelines and special conditions to regulate regional intelligence projects’ operations.39 Director William Anderson of GAO’s General Government Division in 1981 noted the regional intelligence projects were “in the process of evolving into a unique network of systems which, when fully operational, will provide their State and local member agencies—in all 50 States—with a criminal intelligence data bank and intelligence information processing and analysis capabilities.”40 In 1998, Congress enacted the Crime Identification Technology Act authorizing grants to states to upgrade criminal history and criminal justice records systems to improve identification of criminals and promote compatibility and integration of federal, state, and local criminal justice identification systems.41 Each grant funds up to 90 percent of the cost of a program and can be used for a wide variety of projects such as automated fingerprint identification systems, full participation in the Interstate Identification Index (see below) and in any interstate compact relating to it, noncriminal history record information systems pertaining to firearms eligibility determinations, domestic violence offender identification, and sexual offender identification and registration.

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MAGLOCLEN The membrs of MAGLOCLEN are Delaware, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, the District of Columbia, Ontario, and Quebec. Organized in 1981, MAGLOCLEN has approximately 500 member agencies and 162,761 sworn federal, state, and local officers. It is coordinated by a policy board composed of one state and one local representative from each member state elected at the annual business meeting. A police agency desiring to become a member must be sponsored by a policy board member. A background investigation is conducted to ensure the reputation of the applicant and its staff meets the board’s standards. Agencies accepted as members serve a six-month probationary period. MAGLOCLEN’s top priorities are Jamaican organized crime, traditional organized crime, narcotics, white-collar crime/computer crime, outlaw motorcycle gangs, pornography, prostitution, and child sexual exploitation. Secondary priorities are Asian organized crime, Russian organized crime, street gangs, and terrorism. MAGLOCLEN is primarily an intelligence-gathering and distribution organization whose computerized database holds information on known or suspected criminals, businesses, and organizations, and identifying characteristics. Members submit information to and access the database electronically. The project has an analytical department which collects intelligence on specific topics and issues topical reports. In addition, the project hosts conferences and seminars on various topics throughout the year, loans investigative equipment, and provides training and support on a number of electronic and surveillance devices. MAGLOCLEN distributes funds to member agencies to purchase contraband as evidence, services supporting special investigations, and sends field representatives to each member agency to collect information on their needs. Not surprisingly, the effectiveness of these regional intelligence projects varies. Thomas A. Constantine, former superintendent of the New York State Police and former U.S. drug enforcement administrator, in 2000 identified the New England and the Western projects as the most effective.42 He reported several mid-Atlantic states, such as New Jersey and New York, have sophisticated intelligence systems and have been reluctant to turn them over to MAGLOCLEN. Interstate Identification Index Forty-two states currently exchange criminal justice information through the Interstate Identification Index (III) that contains data on individuals arrested for federal and state felonies and serious misdemeanors. Each state assigns an identification number to the arrest card containing the person’s fingerprints, and the information is sent to the FBI for a check of the previous criminal history, if any, of the individual. III includes the name of

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the person, date of birth, race, sex, and FBI and state identification numbers from each participating state holding records relating to the person. The FBI assigns an identification number to the individual and forwards the information to the index’s data bank accessible by all states. A state is notified if a record pertains to the state. Police agencies make inquiries via state telecommunications systems and the FBI’s National Crime Information Center’s telecommunications lines. The search process can be completed within five seconds. Data are retrieved automatically from each state repository holding information on the person and transmitted to the requesting agency. A number of statutes in various states govern criminal background history checks for employment, licenses, permits, and so forth. New York teachers, for example, are required to have fingerprint cards for the state and the FBI. A $50 fee is charged by New York for the service. Sister state agencies must provide a statutory citation and sign an agreement prior to accessing New York’s records on these individuals. The New York State Police also cooperates on background checks with the Ontario Provincial Police, Quebec Provincial Police, and the Royal Canadian Mounted Police who serve as the police agency under contracts with the remaining provinces. Welfare Fraud The New York State Office of Temporary Disability Assistance has entered into written agreements with neighboring states for the detection and prevention of welfare fraud. It is relatively common for a person to register and collect welfare in two states. As a consequence of high incidences of such fraud in certain jurisdictions, the office exchanges computer tapes containing the names of all welfare recipients with Florida, Virginia, Washington, D.C., and Puerto Rico.43 New York also signed an agreement for the exchange of welfare data with Rhode Island identifying individuals whose names appear on both data lists. The agreement stipulates each state will “initiate such action as they may deem appropriate with regard to the matched individuals that may include redetermination, benefit termination, and action based on suspected fraud.”44 New York also entered into a similar administrative concordat with Massachusetts. Furthermore, state officers are in constant telephone contact with their counterparts in other states in efforts to build joint cases and pursue welfare fraud. Cooperation with California and New Jersey is complicated by the fact that welfare payments are administered by counties and not by a central state agency. The Administration for Children and Families (ACF) of the U.S. Department of Health and Human Services since 1993 has been operating an electronic Public Assistance Reporting Information System (PARIS) supplying state public assistance agencies with the U.S. Department of Veterans Affairs’ compensation and pension payment records for “use in verifying

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public assistance circumstances when determining public assistance eligibility and benefits.”45 ACF, commencing in September 1997, provides information to sixteen states pertaining to possible duplicate public assistance payments in these states which have signed interstate administrative agreements for the exchange of information on cases under investigation. Informal Agreements Police agencies commonly interact with their counterpart agencies in other states on the basis of informal verbal agreements. All states have “hot pursuit” statutes allowing police to cross state boundary lines in pursuit of a fugitive from justice. A police officer pursuing a fleeing vehicle near a state boundary line frequently will request the assistance of the state police or highway patrol in a neighboring state. Informal cooperation can be ad hoc or continuing. The large excise tax differential on cigarettes and alcoholic beverages between states has encouraged organized crime to engage in buttlegging and bootlegging resulting in a significant loss of state tax revenue. States experiencing such losses have instituted various countermeasures and occasionally seek the cooperation of other states. An example of ad hoc cooperation involved two Canadians who were arrested in New York State in 1994 for transporting 397 cases of liquor after their truck and automobile were followed by officers of two states from a Maryland discount liquor store through Pennsylvania to New York.46 There are, however, no written police interstate administrative reciprocity agreements in New York other than ones administered by the Motor Vehicle Department, such as the Interstate Driver’s License Compact.47 Informal verbal agreements are common and tend to be ad hoc in nature. In general, relations between state police agencies in neighboring states are excellent. New York has housed Massachusetts State Police officers who traveled to Albany to interview a suspect, and the Massachusetts State Police occasionally assigns troopers to assist New York State troopers in their investigations of criminal activities.48 A state trooper, however, may not be allowed to carry weapons in another state. State Police forces in states bordering Canada also have established informal relationships with the Ontario Provincial Police, Quebec Provincial Police, and the Royal Canadian Mounted Police which provides police services to the other eight provinces under contracts. The New York State Attorney General’s Organized Crime Task Force, in common with the New York State Police, cooperates informally with other states primarily by telephone and has signed only one formal memorandum of understanding (with a local police agency in Florida).49 The task force concentrates its operations on the five New York City crime families who also operate in New Jersey. Relations between the task force and the New Jersey attorney general’s office and its investigators are ex-

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cellent. Intelligence information gathered by the task force and New Jersey investigators is shared. Furthermore, the task force will facilitate the issuance of a New York search warrant if New Jersey investigators need one. The latter similarly will facilitate issuance of a New Jersey search warrant at the request of New York investigators. The task force also has a working relationship with the Nevada attorney general because “organized crime types eventually show up in Nevada where bookmaking is not illegal.”50 In addition, intelligence on criminal activities is shared with other attorneys general when pertinent. For example, the task force in 1998 intercepted information on a wire tap that led to other wire taps and an 800 telephone number used by bookies to place bets through Costa Rica.51 Investigators analyzed between 800,000 to 900,000 telephone calls and notified the attorneys general in 20 states of the information collected that could be used as a basis for search warrants in their respective states.52 Education, Licensing, and Library Agreements New York is one of a small number of states with a single body responsible for licensing and disciplining persons in most professions. The Department of Education’s Office of Professions has jurisdiction over thirty-eight professions. Teacher certification is the responsibility of the Department of Education’s Office of Teaching and the judiciary has jurisdiction over lawyers. The New York State Legislature has not enacted the Interstate Agreement on Qualifications of Educational Personnel covering teacher accreditation, but the State Department of Education in 2000 signed a five-year interstate contract, developed by the National Association of State Directors of Teacher Education and Certification (NASDTEC), with other states except Nebraska which has not signed the contract, Canadian provinces, Department of Defense schools, Guam, and Puerto Rico which have comparable accreditation and teacher education standards.53 Contract negotiation was easy as professional state education administrators have good interpersonal relations. The New York State Board of Regents adopted more stringent teacher certification requirements effective in 2004, one year prior to the interstate contract expiration. These requirements differ from the ones contained in the contract. In consequence, the education commissioner will notify other party states in 2003 the state will withdraw from the contract with other states not meeting its 2004 standards. The withdrawal will make it more difficult to attract teachers, particularly black and Hispanic ones, from sister states to New York which is experiencing a teacher shortage. There is no concept of licensing reciprocity under New York law, but the Office of Professions may endorse a sister state professional license

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provided the person meets New York requirements.54 The state employs the process of independent verification of an applicant’s professional education and experience. A person educated in another nation and licensed by another state may not meet New York standards. The office interacts with sister state licensing boards only when seeking confirmation of credentials. With respect to nurses, New York requires a nursing education at an accredited school and passing of a national nursing examination. There is no experience requirement. The Interstate Library Compact facilitates widespread cooperation among state and local public libraries. Acting under the aegis of the compact, the six New England state libraries decided in 1972 to form a joint conservation facility that would address physical deterioration of the collections of college and university libraries, public libraries, and historical societies, and historical town records.55 A Document Conservation Center was organized in 1973 and operated as a unit of the New England Library Board until 1980. In that year, its name was changed to the Northeast Document Conservation Center to reflect its service area had been expanded to include New Jersey and New York. The center was incorporated as a not-for-profit private organization and is the largest regional conservation center in the United States serving more than 400 clients annually. The center’s board of directors includes state librarians and leaders in commerce and industry. Emergency Assistance New York did not enact the Emergency Management Assistance Compact until six days after the September 11, 2001, terrorist attacks that demolished the twin towers of the World Trade Center in New York City. Previously, the state had no written administrative agreements with other states and all interactions were verbal. The frequency with which New York requested assistance from sister states prior to enactment of the compact depended upon the adequacy of the state’s resources. No aid was requested in 2000, but a major ice storm in 1998 resulted in the state borrowing equipment from other states.56 New York clearly will benefit from compact membership in terms of facilitation of the loan of equipment and personnel, and resolution of the liability issue. Thirteen states provided assistance to New York City subsequent to the attacks by terrorists. New York is a member of the Northeastern Interstate Forest Fire Compact, but has no written fire mutual aid agreements with other states.57 The state is one of the few states without a state fire marshal, but does have a Division of Fire Prevention Control in the Department of State. The division has informal mutual aid agreements with neighboring states—particularly New Jersey, Pennsylvania, and Vermont—and contiguous Canadian provinces. New York trains many Canadian firefighters.

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Relations between the jurisdictions are excellent and all are willing to provide mutual aid. The lack of a compact or a written administrative agreement, however, presents liability problems with respect to a firefighter injured while helping to suppress a fire in another jurisdiction. Environmental Agreements This section examines agreements relating to air pollution abatement, fisheries, plant pests, waste materials, and an unusual joint commission. Air Pollution Abatement New England state public health commissioners, acting upon the recommendation of the New England Governors’ Conference, in 1967 formally organized the New England Staff for Coordinated Air Use Management which was designated by the governors as the official regional interstate air management planning agency.58 New York in 1970 joined the consortium and was followed by New Jersey in 1979 when the organization was renamed the Northeastern States for Coordinated Air Use Management (NESCAUM). It deals with all types of air pollution sources. There are four similar regional consortia: Mid-Atlantic Regional Air Pollution Task Force, Southeastern States Air Resources Managers, Metro-Four (eight southeastern states), and Western States Air Resources.59 A 1989 NESCAUM study concluded (1) the organization successfully influences air quality policies and their implementation, (2) its decisions “are equivalent to commitments by the member States,” (3) political pressures do not impact NESCAUM, and (4) each member state must recognize “other member states will implement consortia recommendations in a different manner and at a different pace.”60 The federal Clean Air Act Amendments of 1990 established the Ozone Transport Commission composed of representatives of twelve northeastern states and the District of Columbia sharing a common smog problem.61 In 1992, these states and the district signed an administrative document pledging to cooperate with each other, federal government agencies, and local government agencies to achieve the goals of the Clean Air Act.62 The commission has promoted interstate cooperation in the form of nine interstate memoranda of understanding on a variety of topics including motor vehicle emissions and an assessment of the California low emission vehicle program, federal reformulated gasoline program, implementation of a mobile source strategy, need to reduce stationary source nitrogen oxide emissions, and adoption of heavy duty engine and vehicle emission standards. EPA designated the commission, NESCAUM, and Mid-Atlantic Regional Air Management Association as copartners in coordinating regional haze planning.63 In 1994, EPA authorized the northeastern states to adopt the California Low Emission Vehicles Program.64 New York automatically

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adopts any new vehicle emission standard adopted by California, the state with the strictest air quality standards.65 In 1997, seven northeastern states jointly petitioned EPA to require midwestern and southeastern states to address the problem of interstate air pollution by mandating electric generating plants and large industrial plants to install controls for nitrogen oxides, a primary cause of smog.66 Research conducted by New York State revealed air entering the state fails to meet federal air quality standards and is responsible for as much as one-half of the background levels of ozone in the state’s air. The U.S. Court of Appeals for the District of Columbia Circuit in 2001 unanimously upheld most provisions of a 1999 EPA rule requiring polluters, including ones in New York and Pennsylvania, to reduce nitrogen oxide emissions.67 The Northeast Advanced Vehicle Consortium was organized by the governors of eight northeastern states and Mayor Rudolph W. Giuliani of New York City to investigate methods of reducing motor vehicle pollutants. In 2000, the consortium reported that a New York City Apple Tours doubledecker bus and a Gray Line New York Tours double-decker bus emitted six times more pollutants than the oldest bus operated by the New York City Transit Authority.68 The Conference of New England Governors and Eastern Canadian Premiers was established in 1973 to promote cooperation and exchange of information. In 1998, its Committee on the Environment developed an action plan incorporating a comprehensive cooperative approach to solving the acid rain problem by achieving significant reductions in emissions of sulfur dioxide and nitrogen oxides.69 New York State has entered into informal agreements with counterpart air quality agencies in other states relative to issues and collective courses of actions to be initiated primarily through NESCAUM (see above).70 During summer months, for example, air quality directors place special controls on gasoline. NESCAUM members cooperate fully with each other and tend to agree on issues. Fisheries Agreements Fresh waters located along state boundaries represent approximately one-third of the fresh waters of a typical state and raise questions regarding sister state fisheries regulatory cooperation. Not surprisingly, a relatively large number of interstate administrative agreements or memoranda of understanding on fishing incorporate the principle of reciprocity.71 Each defines the reciprocity area, specifies the covered licenses and stamps, and provides for entrance into and exit from the area, and transportation of fish. These agreements may or may not recognize exemptions from state fishing license requirements and may specify uniform regulations in the interstate area, a special set of regulations, or adoption of the regulations

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of one state. Such agreements also include a section relative to termination with the most common one requiring a terminating state to provide advance notification ranging from one month to one year. Arizona, California, Nevada, Utah, and Wyoming in 1977 entered into a reciprocity agreement for fishermen holding a resident state license and a border fishing stamp. Oklahoma and Texas signed an unusual license agreement in 1979 providing for a special license fee for fishing on Lake Texoma with the revenues divided on the basis of the percentage of the lake’s surface area in each state. Fisheries Councils States also cooperate with each other by means of eight regional fisheries councils established by the Magnuson-Stevens Fishery Conservation and Management Act of 1976.72 The United States government has exclusive management authority over fisheries, except highly migratory tuna species, within a fishery conservation zone extending three to twenty miles offshore. Each council is responsible for preparation of fishery management plans, conforming to national standards, for implementation by the secretary of commerce. The Mid-Atlantic Fisheries Council has twenty-five members representing Delaware, Maryland, New Jersey, New York, North Carolina, Pennsylvania, and Virginia. Voting members are a state fisheries officer from each state, the director of the National Fisheries Service, and thirteen members nominated by state governors and appointed by the U.S. secretary of commerce. Each state is entitled to a minimum of one public member with the remaining members appointed at-large. The four non-voting members are representatives of the U.S. Fish and Wildlife Service, Coast Guard, State Department, and Atlantic States Marine Fisheries Commission. The state-dominated council has had considerable influence over federal fisheries policies.73 A New York State fisheries officer described the council as legally an advisory body but added it is more than advisory as it screens plans and selects and eliminates elements.74 He attributed the great influence of the council to the fact it performs research and prepares documents. Nevertheless, Connecticut Attorney General Richard Blumenthal in 2000 filed a suit in the U.S. District Court in Hartford alleging the council was unconstitutional because it pressures states to participate without their consent in a federal program that allows competing states to set fish quotas for Connecticut fishermen.75 Merrimack River Anadromous Fish Restoration This river arises in the Franconia range of the White Mountains in New Hampshire, flows southeasterly, drains a 5,010 square mile area, and flows through Massachusetts before entering the Atlantic Ocean. Anadromous

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fish—particularly the Atlantic salmon, shad, and river herrings—were plentiful in the Merrimack River basin during the precolonial period. In common with numerous other rivers, dams were constructed and pollutants were discharged into the river. The result was the demise of anadromous fish in the river. Various efforts were made in the nineteenth century to restore these fish to the river, including construction of a fish passage facility at certain dams and the stocking of fish. Minimal success was achieved. A major new restoration program was launched on September 29, 1969, when an administrative agreement was signed by representatives of five agencies— Massachusetts Division of Fisheries and Game, Massachusetts Division of Marine Fisheries, New Hampshire Fish and Game Department, U.S. Bureau of Commercial Fisheries (now National Marine Fisheries Service), and U.S. Bureau of Sport Fisheries and Wildlife—launching a cooperative fishery restoration program for the Merrimack River Basin.76 A strategic plan, first developed in 1978 and revised periodically, focuses on removal of obstructions to allow fish passage upstream and downstream, and release of hatchery smolt and fry. A similar memorandum of understanding for restoration of Atlantic salmon to the Pawcatuck River was signed in 2001 by representatives of the Rhode Island Division of Fish and Wildlife, the Connecticut Division of Fisheries, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service.77 These two interstate administrative agreements demonstrate either an interstate compact or an interstate administrative agreement can be utilized by states to solve a problem or achieve a goal on a cooperative basis. Chapter 4 describes the interstate compact designed to restore anadromous fish to the Connecticut River. The Merrimack River interstate administrative agreement for restoration of such fish differs only in minor details, such as lack of direct congressional consent, from the Connecticut River interstate compact.

Plant Pest Agreements Plant pests—insects, plant disease, and other organisms—cause losses of more than $30 billion annually for U.S. farmers and serious damage to lawns and gardens. The thirty-two member Interstate Pest Control Compact (see Chapter 4) was implemented in 1968 as one response to the damages caused by insect pests. The compact’s insurance fund provides financial assistance to states to contain or eradicate plant pest infestations. The compact, however, is not the only interstate plant pest cooperation mechanism.

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Regional Plant Pest Boards The fifty-state plant pest regulatory agencies cooperate with each other through one of four regional plant boards—eastern, central, southern, and western. The latter board is the oldest and was established in 1919 by eleven states, Territory of Hawaii, Province of British Columbia, and Mexican district of lower California. The remaining states and the Commonwealth of Puerto Rico were organized into the other three regional plant boards in 1925. The Plant Board System of the United States was established in the same year with two members from each regional plant board. The constitution of the National Plant Board, which was amended in 1976 to open membership to all states, currently lists the board’s purposes as • To represent the regional plant boards at the national level and to carry out instructions issued by the regional plant boards. • To bring out greater uniformity and efficiency in the promulgation and enforcement of plant quarantines and plant inspection policies and practices in the various states. • To act as a national clearing house for information in plant quarantines and plant inspection policies and procedures. • To promote harmony and uniformity in the field of plant pest regulation. • To maintain contacts with the United States Department of Agriculture and other federal and state agencies concerning quarantine policies that have national, regional, or individual state effects. • To advance and protect agriculture, horticulture, and forestry on the state, national, and international levels.78

This system’s council serves as a liaison between the regional boards and cooperating agencies of the U.S. government, and appropriate industries and other organizations. The council typically meets a minimum of three times annually with the Animal Plant Health Inspection Service of the U.S. Department of Agriculture. The council in 1931 adopted seventeen conditions for consideration of regulatory action to quarantine an area to prevent a pest from entering it. These guidelines have been adopted by federal and state regulatory plant protection agencies, thereby ensuring greater quarantine uniformity throughout the nation. Each state has its own criteria for the movement of plants that are generally similar to the criteria employed by other states. The director of the New York Division of Plant Industry noted state laws “have a zero tolerance for pests” and stressed there is a need for judgment as we “can live with a little white fly.”79 He also reported that New York has a number of unwritten agreements with other states.

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Waste Materials The proliferation of throw-away products has produced a crisis in urban areas relative to the disposal of waste materials. Similarly, the sharp increase in the use of hazardous materials has compounded the disposal problem. One solution is recycling. Two organizations have been founded in the northeastern states to address the disposal problem. Northeast Recycling Council The Eastern Regional Conference of the Council of State Governments (CSG) in 1989 organized the Northeast Recycling Council (NRC) which signed a memorandum of understanding with concerned departments in ten states. Voting members are representatives of state departments and state legislators. Nonvoting advisory members are state and regional recycling organizations, individual companies, trade associations, and utilities. Membership dues and grants finance the council’s activities. In 2000, CSG decided NCR did not fit with CSG’s new national trends mission and announced it would terminate the council in six months.80 Members responded by incorporating the council as a nonprofit organization under Vermont law. NRC’s primary mission is minimization of the amount of materials requiring disposal. The council (1) promotes the linkage between recycling, source reduction, and economic development, (2) supports state and trade associations’ recycling and source reduction efforts, (3) provides a regional forum for communication, cooperation, and participation in research and policy development, (4) advocates regional recycling and source reduction approaches, and (5) encourages use of recycled-content and other environmentally preferable products. Cooperation between member states generally is good although there are tensions over certain issues.81 Delaware considers incineration to be recycling and the other states do not. There also are disagreements regarding the need for a bottle deposit law, requirements for producers to be responsible for sharing in the disposal or recycling of their products, and differing definitions by member states of recycling and hazardous waste and standards. Nevertheless, the council is considered to be very effective in promoting recycling programs.82 Among other achievements, NRC secured an agreement from newspaper publishers to purchase recycled newsprint with a minimum average level of 27 percent recycled content, provided business development and technical assistance resulting in investments exceeding $20 million, and tested the effectiveness of small business recycling cooperatives in three states.

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Northeast Waste Management Officials’ Association This association (NEWMOA) is a nonprofit one established by an interstate agreement and focuses “on major environmental problems that require a cooperative regional approach.”83 Members are hazardous waste, solid waste site cleanup, and pollution program directors of environmental departments in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The association is the official organization responsible for coordination of interstate hazardous and solid waste, and pollution prevention activities, and is funded by member states and U.S. EPA grants. NEWMOA in the mid-1990s collaborated with NESCAUM and the New England Interstate Water Pollution Control Commission to prepare a report on mercury deposition rates and regional sources of emissions. Subsequently, the association provided assistance to the New England Governors Conference to develop a Regional Mercury Action Plan that was adopted in 1998 by the governors and the eastern Canadian premiers.84 In 2000, New England state governors signed a resolution recommending enactment by each state legislature of sections of NEWMOA’s Mercury Education and Reduction Model Legislation.85 A second major association project measured interstate solid wastes to determine needed information to chart flows more accurately and identify changes beneficial to individual states and the region. Used electronic products are a major and growing contributor to the flow of waste materials and contain a significant amount of toxic materials—cadmium, chromium, lead, and mercury. The state directors of solid and hazardous waste programs agreed in 2000 to coordinate their respective regulatory policies for used electronic products through NEWMOA.86 The association also provides support services to member states’ pollution prevention, solid waste, and waste site cleanup programs. These services facilitate communication and cooperation between member states and between them and EPA. In addition, NEWMOA develops and shares information, encourages use of innovative technologies, facilitates establishment of unified positions on issues, implements coordinated regional management approaches, promotes brown fields redevelopment, regulates pollution sources, and conducts research and training.

Connecticut River Joint Commissions The New Hampshire General Court (State Legislature) in 1987 created a fifteen-member Connecticut River Valley Resource Commission and assigned it the following responsibilities: (1) preparation and assessment of a comprehensive inventory of public and private resources utilized to preserve and protect the valley, (2) coordination of the development of regional

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promotional programs, (3) initiation and encouragement of interstate cooperation with Vermont in promoting and protecting the valley as a cultural and recreational resource, (4) assessment of the effectiveness of similar river and watershed protection programs, and (5) evaluation of applications from local governments for funding the purchase of conservation easements, development rights, and titles to land.87 In 1988, the Vermont General Assembly established a fifteen member Connecticut River Watershed Advisory Commission to cooperate and coordinate with New Hampshire in order to guide development in a manner maximizing conservation of the agricultural, ecological, and agricultural integrity of the watershed.88 The enabling statute includes an unusual authorization provision: “In a manner consistent with New Hampshire law, the advisory commission may designate citizens from Vermont municipalities bordering the Connecticut River, to serve on, or coordinate with, local river management advisory groups established pursuant to New Hampshire Law.”89 The two commissions, which lack regulatory powers, decided in 1999 to hold joint monthly meetings and to incorporate the Connecticut River Joint Commissions to act as “a single bi-state voice for the valley.”90 Each commission meets separately only to act on matters affecting its membership and to respond to requests for advice on issues by its parent state government. The joint commissions’ annual budget ranges between $225,000 and $500,000, including $100,000 to $120,000 provided by the two states. The remaining funds come from the federal government and foundations. The interstate body makes awards, ranging from $500 to $5,000, to “support innovative, community generated projects that address economic and conservation challenges in ways that are compatible with the river valley’s historic, scenic, and natural resources.”91 As of 2001, the joint commissions made 283 grants including ones for campsites, conservation, importation of dairy sheep from Europe, studies of the condition of the river, and trails.92 The joint commissions work closely with the federal river navigator assigned to the Connecticut River and with federal departments and agencies—EPA, Department of Transportation, Fish and Wildlife Service, and National Park Service—which seek the joint commissions’ advice. Connecticut River navigator Daniel Burke explained in 2001 the joint commissions have been very helpful because their local river task forces have drafted project implementation plans that can be incorporated immediately into an application for federal grants when funds become available.93 In terms of interstate cooperation, the commissions organized five bistate local river subcommittees which developed the Connecticut River Corridor Management Plan in 1997. The interstate body also was instrumental in establishing, and currently provides staff for, the Connecticut River Sce-

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nic Byway Council’s conduct of “a federally funded byway study and fostering heritage tourism in the River Valley.”94 .

Insurance Regulation The insurance industry historically was regulated by state legislatures. In 1868, the U.S. Supreme Court specifically opined insurance was not interstate commerce and hence was exempt from regulation by Congress under the commerce clause of the U.S. Constitution.95 This decision contributed to the lack of uniformity in state insurance regulatory policies. The court in 1944 reversed this decision and Congress, under pressure from states fearing the loss of revenue, overturned the decision the following year by enacting the McCarran-Ferguson Act delegating to states the power to regulate the insurance industry.96 By exempting the insurance industry from the interstate commerce clause, the act permits state legislatures to enact non-uniform statutes including ones discriminating against foreign insurance corporations (those chartered in a sister state). However, the U.S. Supreme Court in 1985 held the act does not exempt the industry from the equal protection of the laws clause of the Fourteenth Amendment to the U.S. Constitution.97 Discrimination against foreign corporations and conflicting provisions in the insurance statutes of the states generated strong pressures for congressional preemption of state regulation of the insurance industry.98 MetLife, for example, has to obtain the approval of fifty states and U.S. territories for a new form and “it takes forever to get a new form approved.”99 Reacting to lobbying by the insurance industry, Congress in 1999 enacted a comprehensive financial institutions act preempting the insurance regulatory powers of states by establishing minimum standards in thirteen regulatory areas.100 In addition, states face the threat a federal system of licensing insurance agents will be established if twenty-six states do not adopt a uniform licensing system for insurance agents by November 12, 2002, as determined by the National Association of Insurance Commissioners (NAIC) after consulting the state insurance commissioners.101 States are aware of the threat of additional congressional action if they fail to develop more uniform insurance regulatory policies. NAIC provides a forum for commissioners to meet quarterly to discuss issues and promote enactment of common policies. There is a significant amount of interstate insurance interactions, but little is in writing as state insurance officers know their counterparts in sister states and communicate with them on a personal basis via the telephone and the Internet.102 The association in 1988 decided to develop uniform financial regulation standards and adopted such standards in 1989 as “baseline requirements for an effective regulatory system in each state.”103 The following year, the

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association launched a formal certification program to improve the effectiveness of state solvency regulation. Under the accreditation program, an independent team reviews each state insurance department to determine its compliance with the standards. In 2001, forty-six state and the Puerto Rican insurance departments were accredited. New York, Nevada, Washington, and West Virginia are actively seeking reaccreditation. The New York department was among the first ones accredited in 1990, but lost its accreditation in 1994 because the state legislature refused to enact certain model laws on the ground “it did not want to be dictated to by a quasi-governmental organization.”104 The U.S. General Accounting Office in 1991 issued its first report assessing the association’s accreditation program and concluded “state adoption of NAIC’s current standards will achieve a consistent and effective system of solvency regulation.”105 The following year GAO observed (1) the standards are general and have been interpreted permissively by the review teams, (2) implementation of standards is not reviewed, and (3) “the review teams’ documentation of their accreditation decisions did not consistently support their compliance decisions.”106 In 1993, GAO noted the association had made a number of improvements in its accreditation program, but it lacked adequate documents for its decisions to accredit departments.107 GAO conducted another review of the program in 2001 and reported its success remains uncertain.108 Transportation Agreements It is not uncommon for a resident of a state to register his/her motor vehicle in another state to benefit from a lower excise tax, sales tax, and/ or insurance premiums. New Jersey in 1992 decided to file civil complaints against 200 Connecticut, New York, and Pennsylvania residents who registered their vehicles in New Jersey to lower the cost of vehicle insurance and, in the case of Connecticut residents, also to avoid paying the annual personal property tax on motor vehicles.109 New Hampshire has been a favorite state for the registration of vehicles by residents of neighboring states. In 1995, New Hampshire announced it would cooperate with Maine and Massachusetts to solve the problem of bogus registrations by revoking the registration of vehicles owned by nonresidents.110 New Hampshire and Maine are the only two states allowing residents to snowmobile free of charge across the state line. The Maine State Legislature, however, is considering a bill that would require New Hampshire residents to pay a registration fee of $60 because Massachusetts’ residents are registering their snowmobiles in New Hampshire to avoid the Maine registration fee.111 The New York vehicle and traffic law, in common with similar laws in sister states, authorizes the commissioner of motor vehicles to enter into

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reciprocal driver license agreements with Canadian provinces, based on the driver license compact’s policy goals, in order to (1) promote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles. (2) make the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the overall compliance with motor vehicle laws, ordinances, and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of which the licensee is authorized or permitted to operate a motor vehicle in any of the party states.112

New York in 1988 entered into administrative reciprocity agreements with Ontario and Quebec providing that truck drivers licensed in these provinces who fail to pay a New York traffic violation fine automatically will have their licenses suspended.113 Data released in 2001 reveal Canadian truckers are paying their speeding fines. New York sends more information to the Ontario and Quebec licensing authorities than they send to New York.114 Consideration is being given by New York to entrance into agreements with the remaining eight Canadian provinces and Mexican states in the future. The commissioner also is empowered to execute a reciprocal agreement with the motor vehicle administrator of any other state.115 The purpose of this provision is to allow the commissioner to enter into reciprocal agreements with states which are not members of the driver license interstate compact. Commercial Vehicle Safety Alliance Western state and Canadian provincial agencies responsible for conducting commercial vehicle enforcement held a meeting in 1980 focusing on common concerns and need for uniform methods, procedures, and standards.116 Out of this meeting came the Commercial Vehicle Safety Alliance, a nonprofit organization, and the Critical Item Truck and Bus Inspection Procedure that concentrates on vehicle cargo, driver requirements, and equipment most often found to be a cause of or a factor contributing to accidents. The alliance is composed of representatives of the fifty states, American Samoa, Guam, twelve Canadian provinces and territories, and Mexican states. Members have signed a memorandum of understanding to utilize common inspection procedures. The result is uniformity and reciprocity in commercial vehicle regulation. The alliance is supported by the U.S. Departments of Energy and Transportation, Canadian Transport officers, and associate industry members. In addition, the alliance cooperates with the Department of Energy in developing uniform inspection standards for driv-

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ers, loads, and vehicles used for transporting spent fuel, high-level and transuranic radioactive waste. In 2001, the alliance released a report of a two-year study of safety inspections of radioactive waste shipments to a waste isolation pilot plant disposal site in Carlsbad, New Mexico revealing only 17 violations were found when enforcement officers conducted 313 inspections on 124 truck shipments. E-Z Pass Traffic congestion at bridge, tunnel, and turnpike toll plazas contributes to air pollution, wastes fuel, delays motorists and truckers, and necessitates construction of additional toll plazas and employment of toll collectors and their supervisors. Electronic toll collection systems were developed in response to these problems and permit toll collection without the user stopping, rolling down a window, paying cash, and requesting a receipt at a toll booth. These systems, by facilitating traffic flow, enlarge the number of vehicles accommodated without the construction of additional toll collection facilities and reduce the number of toll collectors. Currently, there are twenty such systems in the United States. State transportation authorities, including the Port Authority of New York and New Jersey, in seven northeastern states signed a 1993 interagency agreement organizing the E-Z Pass Regional Consortium to develop electronic toll collection. The consortium—Delaware, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and West Virginia—is the largest one in the United States. Maine in 2001 converted its Transpass system into the E-Z Pass system. By joining the consortium, an authority can purchase the necessary lane equipment at a lower price because of the consortium’s purchasing power. Each interested driver must file an application for a radio frequency tag, termed a transponder, that is placed on the vehicle and open a prepaid account with cash, a check, or a credit card. Each customer receives a monthly statement listing in detail his/her toll charges. The authorities prefer credit cards because (1) customers have the option of having their credit cards automatically charged when their respective account drops below a predetermined level and (2) discounts can be offered to attract accounts and to relieve congestion by encouraging off-peak hours of travel. Chase Manhattan Bank services the system for a fee of four cents for each toll collected. The New Jersey Turnpike Authority implemented the system simultaneously with a general increase in tolls on September 30, 2000. Drivers without an E-Z Pass transponder pay a 20 percent higher toll, E-Z Pass holders pay an 8 percent higher toll for travel on weekends and during rush hours on weekdays, and pass holders traveling during non-rush hours on weekdays pay no toll increase.117 On the first day of the system, 43.3 per-

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cent of the 82,610 vehicles entering the turnpike during the morning rush hours were E-Z Pass users.118 The authority reported E-Z Pass cleared the traffic congestion in toll plazas, thereby reducing emissions of air pollutants and fuel consumption.119 When a user approaches a specially marked toll lane containing a radio frequency device, a radio signal reads the identifying information on the tag, processes it, deducts the appropriate toll from the prepaid account, and approves passage of the vehicle. E-Z Pass, in conjunction with similar systems, uses video enforcement to obtain images of vehicle license plates in E-Z Pass lanes. A driver without a pass using the E-Z Pass lane receives a notice that a toll and a processing fee are due. If the driver fails to pay the toll and fee, the information is forwarded to a local judicial court. I-95 Coalition A related transportation agreement is the I-95 Corridor Coalition which developed from an informal group of private and public transportation executives in twelve northeastern states—Maine to Virginia—and the District of Columbia seeking to coordinate traffic incident management. Traffic in the corridor is extremely congested in many sections where it is difficult to expand the interstate highway. In 1993, the coalition formally was organized to employ intelligent transportation systems (ITS) to promote mobility and safety in all modes of transportation in the region containing approximately one-fourth of the nation’s population, thirteen major airports, numerous railroad stations, eleven major seaports, and more than 30,000 miles of interstate and state primary highways. The coalition (1) provides organizational, technical, and training support to its members, (2) serves as an informational clearinghouse, (3) coordinates activities of member organizations, (4) conducts field tests of new technologies, (5) seeks federal funding for its programs, (6) encourages public-private partnerships, and (7) promotes interoperability among member jurisdictions.120 Whenever a major incident occurs, it is entered in the information exchange network and shared with traffic management centers in other areas that inform drivers of the incident and suggest alternative routes. For example, a major I-95 incident in Chester, Pennsylvania, in 1998 closed northbound and southbound lanes for thirty hours, and travelers from Maine to Virginia were informed of the closure. The coalition also seeks to find more effective and efficient methods of clearing obstacles—debris, stalled vehicles, wrecked vehicles—from I-95, including prompt dispatch of state police and emergency vehicles, to improve traffic flow.121 The coalition reported the following 1999 accomplishments: (1) support for the formation of a university-based Consortium for ITS Training and Education, (2) test of TravTips, an advanced traveler information system covering the Boston to New York corridor, (3) upgrading of the Travelers’ Alert Map to include more detailed information, (4) sponsorship of a forum

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on inter-modal freight and passenger service, and (5) establishment of a Coalition Connection, an electronic clearinghouse.122 Airports Occasionally, a state public authority informally initiates a cooperative regional program as illustrated by the Massachusetts Port Authority’s action to relieve overcrowding at Logan International Airport in Boston. The authority in 2001 launched a $500,000 regional marketing plan—Fly New England—to inform tourism organizations and travel agencies by means of booths at industry trade shows, television advertisements, and printed materials there are airport alternatives to Logan International Airport.123 Regional airports contribute what they can afford to the program. Electronic Purchasing and Information State purchasing agencies encourage their respective local governments to obtain supplies at a lower cost through their state governments with their ability to obtain substantial discounts from suppliers. Cooperative purchasing by two or more states first occurred in 1998. Emall—sponsored by the Massachusetts Operational Services Division, Office of the State Comptroller, and the Information Technology Division—is an Internet procurement program allowing five states—Idaho, Massachusetts, New York, Texas, and Utah—to pool their purchasing power to obtain the lowest prices on a wide variety of items from suppliers who place their products and the negotiated prices in their respective Internet catalogues.124 Suppliers desiring to sell items on the site—www.emall.isa.us—are required to hold a current contract with one or more states. The National Association of State Information Resource Executives (NASIRE) and the U.S. General Services Administration (GSA) Office of FirstGov are working together to link state government websites to FirstGov.125 States have been encouraged to establish a link to FirstGov.gov on their home pages, thereby allowing citizens and business partners to access directly the approximately 30 million pages in the federal portal in a single search initiated from the primary state site. A related project is Government Without Boundaries—a collaborative effort of federal, state, and local governments—designed to provide information on a virtual pool of government services available to citizens. The project, made possible by voluntary efforts of concerned government officers, resulted from a roundtable session at the 2000 NASIRE annual meeting in Baltimore. Taxation Two major problems are associated with certain types of taxes. The first problem is double taxation involving an individual’s income being taxed

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by the state of residence and by the state where the individual is employed. A number of state legislatures have enacted statutes providing taxpayers with credits for income taxes paid to other states, political subdivisions, District of Columbia, and Canadian provinces.126 Minnesota and North Dakota, on the other hand, agreed in 1958 that the income of residents of the two states would be taxed only in the state of residence.127 Tax evasion always has been a major governmental problem, and sales and use tax evasion in particular has been difficult to curb. States have signed administrative agreements with each other to solve the problem and/ or lessen the burden placed on taxpayers, including exchange of taxpayer information, International Fuel Tax Agreement, International Registration Plan, and Streamlined Sales and Use Tax Agreement. Exchange of Information New Jersey and New York in 1985 entered into an administrative agreement to curtail sales tax evasion by business firms and customers who avoid sales taxes by having their purchases shipped to another state.128 Although purchasers are required by law to pay a use tax at the same rate as the sales tax rate to their state of residence, few do. Under the agreement, each state attempts to collect taxes for the other state by requesting merchants voluntarily to register with its state tax department to collect a sales tax on goods shipped to the other state. If a merchant does not register with a taxation department, the merchant is audited more often and required to provide proof, including purchasers’ names and addresses, that the sales on which they collected no tax were to residents of sister states. New York State tax auditors, for example, send the names and addresses of New Jersey purchasers to the New Jersey department, and it sends notices they must pay the use tax. The following year, New Jersey and New York signed a reciprocal agreement for exchange of tax information and cooperative tax administration.129 The agreement concentrates on collection of each state’s use tax and a merchant with offices in both states is responsible for collecting the use tax from a customer from the other state. A merchant operating in only one of the states is not liable to collect the use tax. Connecticut and New York entered into a similar reciprocal agreement in 1988 providing for the exchange of tax information and cooperative tax administration. Currently, New York has agreements with all states except New Mexico and Nevada.130 The information obtained enables the New York State Department of Taxation and Finance to conduct tax audits to improve tax compliance and generate additional revenues. Ten (now eleven) northeastern states and the District of Columbia in 1986 signed an agreement to detect taxpayers who live and are employed in one state, but claim residency in another state in order to pay lower or no state income taxes.131 An unknown number of taxpayers file income tax

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returns as nonresidents in one or more states while filing no resident return, thereby avoiding taxes on unearned (dividends and interest) income. The agreement authorizes the exchange of computer tapes and other data pertaining to income taxpayers. The Federation of Tax Administrators—composed of representatives of the fifty states, District of Columbia, and New York City—has served as a clearinghouse for the exchange of tax information since 1937.132 It drafted a Uniform Exchange of Information Agreement, effective in 1993, that has been signed by forty-four states, the District of Columbia, and New York City. Prior to this agreement, individual states entered into bilateral agreements with sister states for the sharing of tax information. The Uniform Exchange of Information Agreement supersedes the bilateral agreements. International Fuel Agreement This multi-jurisdictional agreement provides that a motor carrier’s home jurisdiction issues credentials allowing the licensee to travel in all member jurisdictions. Its origin is traceable to a 1983 experimental fuel use tax plan entered into by Arizona, Iowa, and Washington.133 Sixteen states were members when, as noted, the Motor Carrier Act of 1991 pressured states to enter into this agreement and the International Registration Plan (see below). Forty-eight states and the ten Canadian provinces are members of the agreement that is administered by the International Fuel Tax Association incorporated by members in 1991.134 Nonmembers are Alaska, Hawaii, Washington, D.C., and the Northwest Territory and the Yukon Territory in Canada. The National Conference of State Legislatures (NCSL) described the agreement as one containing “elements of three types of relationships: a constitutionally valid interstate compact, reciprocal state statutes, and reciprocal administrative agreements.”135 NCSL apparently concluded the agreement is an interstate compact because it is entered into by states, and Congress encouraged their entry without specifically granting consent. New York defines a qualified motor carrier under the plan as a vehicle used for transportation of persons or property with at least two axles and a gross vehicle weight exceeding 26,000 pounds or is used in combination, and the combination exceeds 26,000 pounds or has three or more axles regardless of weight.136 New York is a carrier’s base jurisdiction for licensing and reporting under the agreement if: • Your qualified motor vehicles are registered in New York State; • You have an established place of business in New York State from which motor carrier operations are performed; • You maintain the operational control and operational records for qualified motor vehicles in New York State or can make those records available there;

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• You have qualified motor vehicles that actually travel on New York State highways.137

The base jurisdiction assesses and collects taxes owed by a motor carrier for all of its fuel use in members’ jurisdictions and distributes part of the revenues to other jurisdictions in accordance with the amount of travel in each. The carrier pays a net amount to the base jurisdiction; that is, credits owed to the carrier by certain jurisdictions are deducted from the liability owed to other jurisdictions. Carriers benefit from the plan in terms of one license, one set of credentials, one quarterly fuel tax report indicating the tax or refund due, and one audit that results in cost and time savings. If a qualified carrier does not wish to participate in the plan, fuel permits must be obtained to travel through plan members’ jurisdictions. Robert C. Pitcher in 2001 described the agreement as “a remarkable success” allowing states to retain authority over motor fuel taxation and relieving the motor carrier industry of compliance costs estimated to be $750 million annually prior to the agreement.138 International Registration Plan This plan was established in 1973 to administer cooperatively a commercial motor carrier registration reciprocity agreement for carriers traveling in two or more jurisdictions with licensing fees shared based on fleet miles operated in each jurisdiction. All states and all Canadian provinces are members; the Northwest Territory and Inuit Territory in Canada are not members. Although Mexican states are not members, discussions are ongoing relative to their joining the plan. New York, for example, defines an apportionable vehicle as one used primarily for transportation of property that is “(1) a power unit having two axles and a gross vehicle weight or registered gross vehicle weight in excess of 26,000 pounds; or (2) is a power unit having three or more axles, regardless of weight, or (3) is used in combination when the weight of such combination exceeds 26,000 pounds gross vehicle weight.”139 Many classes of vehicles—such as recreational and city pick-up and delivery—are excluded from the plan. Interstate carriers under the plan must file application(s) with the jurisdiction in which they are based. It issues vehicle registration credentials— plate(s) displaying the word “apportioned,” stickers, and a cab card listing the jurisdictions in which the vehicle is registered and its registration weight limit—utilized by roadside enforcement officers to verify and validate registration. Plan members must recognize the documents as authorization for a motor carrier’s vehicle to operate in the jurisdictions listed on the cab card. Each jurisdiction determines its specific registration schedules and asso-

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ciated fees. The base jurisdiction collects the applicable fees for apportionment to all jurisdictions according to (1) percentage of mileage traveled in each jurisdiction, (2) vehicle identification information and maximum weight, and (3) value, age, unladen weight, and other factors in certain jurisdictions. An increasing number of member jurisdictions are using the plan’s electronic clearinghouse to transfer the commercial carrier fees. A New York–based carrier, for example, informs the Department of Motor Vehicles relative to the states in which the carrier desires to operate and estimated mileage in each state, and provides the department with certified mileage at the end of the year. Each member jurisdiction is required to conduct an audit of 3 percent of its carriers annually over a five-year period. The plan’s operating procedures have been routinized in each member jurisdiction, and cooperation between members generally is good. However, the District of Columbia as of 2001 had not transferred funds to other member jurisdictions and faced the threat these jurisdictions will not transfer funds to the district. At one time, Oklahoma was accused of allowing trucking firms to register in the state by utilizing phantom addresses such as those of forwarding companies.140 Streamlined Sales and Use Tax Agreement This agreement is the outgrowth of a proposal submitted to the Advisory Commission on Electronic Commerce by the National Governors’ Association, National Conference of State Legislatures, and local government associations.141 Twenty-nine states participate in the agreement and ten states are observers. The agreement, approved on December 22, 2000, establishes the basis for a system encompassing: • Uniform definitions within tax bases. Legislatures still choose what is taxable and exempt but will use the common definitions for key items in the tax base. • Simplified exemption administration for use- and entity-based exemptions. Sellers are relieved of the “good faith” requirements that exist in current law and will not be liable for uncollected tax. Purchasers will be responsible for correct exemptions claimed. • Rate simplification. States will be responsible for the administration of all state and local taxes and the distribution of the local taxes to the local governments. State and local governments will use common tax bases and accept responsibility for notice of rate and boundary changes. States will be encouraged to simplify their own state and local tax rates. • Uniform sourcing rules. The states will have uniform sourcing rules for all property and services. • Uniform audit procedures. Sellers who participate in one of the certified Streamlined Sales Tax system technology models will either not be audited or will have a limited scope audit, depending on the technology model used.

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• Paying for the system. To reduce the financial burdens on sellers, states will assume responsibility for implementing the Streamlined Sales Tax system.142

The agreement requires enactment of enabling legislation and is voluntary in nature for states and vendors. If a vendor registers for participation in the system, such registration does not establish nexus for business activity or income tax purposes. The system permits a seller to select one of three technology models. Under the first model, a certified service provider performs all the sales tax functions of a seller. The second model is a certified automated system that performs only tax calculations. A seller with nationwide sales with its own proprietary sales tax software may select model 3 and have the states certify its system. Lotteries Lotteries in the United States date to the colonial era, but present-day state lotteries originated in 1963 when the New Hampshire General Court (State Legislature) enacted and Governor John King signed into law a bill establishing a sweepstakes. Currently, thirty-eight states, the District of Columbia, Puerto Rico, Virgin Islands, and five Canadian provinces operate lotteries and participate in the North American Association of State and Provincial Lotteries established in 1971. The net revenues of lotteries generally are dedicated to public education. Individual state lottery commissions recognized the sale of their tickets is correlated positively with the size of the jackpot. This fact induced groups of states to form multistate lotteries and to lobby Congress to repeal the ban on the interstate sale of tickets and interstate transportation of lottery equipment. Congress amended the ban by adding a clause excepting such tickets and authorizing a state legislature to opt out of the prohibition of interstate transportation of gaming devices.143 Twenty states and the District of Columbia signed an administrative agreement forming the Multi-State Powerball Lottery, seven states operate the Big Game Lottery under an administrative agreement, three states— Maine, New Hampshire, and Vermont—participate via an administrative concordat in the Tri-State Megabucks Lottery, and Georgia, Kentucky, and Virginia in 2001 entered into an administrative agreement forming Lotto South. The Multi-State Lottery is “a non-profit voluntary association of state government-sponsored lotteries that contracts with each other to conduct games in which one or more levels of a prize pool are shared.”144 Its annual sales increased from $32,306,485 during the first six months of fiscal year 1988 to $1,053,362,893 in fiscal year 2001. The largest jackpot to date is the $366 million Big Game Jackpot of May 10, 2000.145 The second largest jackpot is the $294.8 million Powerball jackpot of August 25, 2001.146

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SUMMARY AND CONCLUSIONS The proliferation of extra-constitutional formal and informal interstate administrative agreements, described in this chapter, is attributable primarily to the growth of interstate commerce, increased mobility of citizens, and technological developments. The agreements cover a wide spectrum of important subjects, but unfortunately cannot be utilized to solve major interstate disputes. Associations of state officers, Congress, and federal government administrators must be credited with promoting multistate administrative agreements. The associations in particular draft interstate administrative agreements and hold periodic meetings enabling state officers to become acquainted on a personal basis with their counterparts in other states, thereby facilitating interstate cooperation. Congress, as noted, has enacted statutes creating interstate administrative bodies and provided funding for cooperative activities. Numerous federal government administrators work closely with their state counterparts and encourage their cooperation with each other. The electronic age has facilitated an interstate partnership approach in numerous functional fields including purchasing, criminal identification, intelligent transportation systems, motor vehicle law enforcement, tax information exchange, and toll collection. We predict the continuing electronic information revolution will play a more significant role in promoting multistate cooperation in the future. Has the low public visibility of formal and informal interstate administrative agreements diminished significantly the democratic accountability of civil servants? The answer is in the negative as the principle guiding bureaucrats with isolated exceptions is res publica. Although most elected state officers and citizens have little knowledge of the numerous formal and informal administrative agreements, there is no evidence these agreements are contrary to the policies of the party states. In fact, beneficent agreements make state policy implementation more effective. Furthermore, elected officers can exercise closer oversight over agreements if charges of abuse are made. To date, there have been no charges that state administrators have abused their discretionary authority to enter into and execute interstate agreements. This finding is not surprising since the agreements allow officers to carry out their duties more effectively and fully. And it is apparent interest groups, other than associations of state administrators, tend to have little influence over formal and informal interstate administrative agreements entered into by professional administrators. In sum, the union has been made more perfect by formal and informal administrative agreements sanctioning interstate cooperative endeavors. The twenty-first century should witness increasing use of agreements as

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interstitial approaches providing for joint and reciprocal actions, and harmonization of state policies. Chapter 7 assesses interstate compacts and administrative agreements, recommends steps that could be taken to make them more effective, and presents an outline of a general theory of interstate relations. NOTES 1. Joseph F. Zimmerman, Interstate Relations: The Neglected Dimension of Federalism (Westport, CT: Praeger Publishers, 1996). 2. “Governors, Premiers Wrap Up Conference with Pact Signing,” Union Leader (Manchester, NH), July 19, 2000, p. A3. 3. “Gulf of Mexico Plan to Reduce Nutrients 30% Is Finalized,” Bay Journal 11, March 2001, p. 3. The plan is available on the Internet: www.epa.gov/owow/ msbasin/organ.html. 4. Zimmerman, Interstate Relations, pp. 203–6. 5. New York Vehicle & Traffic Law, §219. 6. Ibid., §517. 7. Ibid., §405. 8. Motor Carrier Safety Act of 1991, 105 Stat. 2140, 49 U.S.C. App. §2302(b)(1). 9. Ibid. 10. New York Highway Law, §10. 11. New York Agriculture and Markets Law, §258-n. 12. New York Social Services Law, §32. 13. New York Public Health Law, §20. 14. Emerson D. Fite, Government by Cooperation (New York: The Macmillan Company, 1932), p. 160. 15. Letter from Michigan Governor James J. Blanchard to New York Governor Mario M. Cuomo, dated January 3, 1986. 16. “NH, Maine, Vt. Joining Forces on Health Care.” Union Leader (Manchester, NH), November 11, 1993, p. 9. 17. “Cooperative Agreement on North Branch Potomac River Signed,” Potomac Basin Report, November–December 1993, p. 4. 18. “Governors Sign Fish Ladder Pact,” Community Affairs (Pennsylvania Department of Community Affairs), May–June 1993, p. 3. 19. “Air-Quality Planners Release List of Potential Emission Control Regulations,” a news release issued by the Metropolitan Council of Governments, Washington, DC, July 1, 1993. 20. James Dao, “States Joining in Combating Illegal Guns,” New York Times, April 26, 1993, pp. 1, B7. 21. “Agreement Reached to Restore Long Island Sound,” EPA Activities Update, October 3, 1994. See also Karl Blankenship, “Bay, Long Island Sound Take Sharply Divergent Cleanup Paths,” Bay Journal 11, April 2001, pp. 1, 12–13. 22. “Cuomo, Puerto Rico Governor Sign Pact,” Times Union (Albany, NY), August 16, 1994, p. B2.

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23. “Governor Pataki, Governor Dean, EPA Sign Lake Champlain Plan,” a news release issued by the office of Governor George E. Pataki, Albany, NY, October 28, 1996. 24. Interview with Pennsylvania Deputy Attorney General Gerald Pappert, Delmar, NY, December 28, 2000. 25. Resume: Annual Executive Conference (Albany: New York State Joint Legislative Committee on Interstate Cooperation, 1950), p. 46. 26. Research Associate Christopher W. LaBarge’s interview with Dr. John Huntley, New York State Division of Animal Industry, Colonie, NY, November 3, 2000. 27. “Regional Dairy Quality Management Alliance Implementation Plan Year 2000 and Beyond” (Albany: New York Department of Agriculture and Markets, n.d.). 28. For details, consult Joseph F. Zimmerman, “Interstate Cooperation: The Roles of the State Attorneys General,” Publius 28, Winter 1998, pp. 82–85. 29. Ann O’M Bowman, “State-to-State Relationships in the U.S. Federal System,” paper presented at the annual meeting of the American Political Science Association, San Francisco, September 1, 2001, p. 7. 30. For a critical assessment of these guidelines, consult Gregory J. Werden, “Market Delineation under the NAAG Horizontal Merger Guidelines: Realities or Illusions?” Cleveland State Law Review 35, 1986–1987, pp. 403–22. 31. Patrick Smyth, “Ireland to Sign Up to Closer EU-Wide Police Links,” Irish Times, May 30, 2000, p. 9. 32. Survey of State Criminal History Information Systems, 1999 (Washington, DC: U.S. Department of Justice, 2000), p. 3. 33. Regional Information Sharing Systems: The RISS Program: 1998 (Tallahassee, FL: Institute for Intergovernmental Research, 1999), p. 1. 34. Ibid., p. 4. 35. Outlook for Multistate Regional Intelligence Projects: Twelfth Report of the Committee on Government Operations, U.S. House of Representatives (Washington, DC: U.S. Government Printing Office, 1981), p. 6. 36. Omnibus Crime Control and Safe Streets Act of 1968 as amended, 82 Stat. 197, 42 U.S.C. §§3782(a) and 3789(c–d). See also 28 CFR Part 23. 37. The Multistate Regional Intelligence Projects: Who Will Oversee These Federally Funded Networks? (Washington, DC: U.S. General Accounting Office, 1980). 38. Outlook for Multistate Regional Intelligence Projects, p. 5. 39. 29 CFR Part 23 (1980). 40. Multistate Regional Intelligence Projects: Hearings before a Subcommittee of the Committee on Government Operations, House of Representatives, May 27 and 28, 1981 (Washington, DC: U.S. Government Printing Office, 1981), p. 3. 41. Crime Identification Technology Act of 1998, 112 Stat. 1871, 42 U.S.C. §14601. 42. Interview with Thomas A. Constantine, former superintendent of New York State Police, Albany, NY, February 23, 2000 (hereafter referred to as Constantine interview).

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43. Research Associate Christopher W. LaBarge’s interview with Director of Program Integrity Richard Nawrot of the New York State Office of Temporary Disability Assistance, Menands, NY, November 30, 2000. 44. “Agreement between the State of New York Department of Social Services and State of Rhode Island Department of Human Services” (Albany: Department of Social Services, n.d.), pp. 1–2. 45. “Public Assistance Reporting Information System,” p. 1. A description provided by the New York State Office of Temporary Disability Assistance, Menands, NY. 46. Kenneth C. Crowe II, “Pair to Answer Liquor-Smuggling Charges Today,” Times Union (Albany, NY), June 9, 1994, p. B7. 47. Constantine interview. 48. Ibid. 49. Telephone interview with George B. Quinlin, New York deputy attorney general in charge of the Organized Crime Task Force, White Plains, NY, February 20, 2001. 50. Ibid. 51. Ibid. 52. Ibid. 53. Interview with Executive Coordinator Charles C. Mackey, Jr. of the Office of Teaching, New York State Department of Education, Albany, NY, December 5, 2000. The contract is authorized by the New York Education Law, §3030. 54. Interview with Director Robert Bentley of the Office of Professions, New York State Department of Education, Albany, NY, November 25, 2000. 55. www.nedcc.org. 56. Telephone interview with Counsel Jean M. Cox, New York State Emergency Management Office, Albany, NY, November 9, 2000. 57. Research Associate Christopher W. LaBarge’s interview with Bureau Chief Jerry Clark of the New York State Division of Fire Prevention and Control, Albany, NY, October 20, 2000. 58. Robert Norton, Study of NESCAUM as a Model of Regional Consortia (Boston: Northeast States for Coordinated Air Use Management, 1989), p. 11. 59. Ibid., pp. 29–32. 60. Ibid., pp. 27–28. 61. Clean Air Act Amendments of 1990, 104 Stat. 2448, 42 U.S.C. §7511(c). 62. Jerry Gray, “States with Acute Smog Problem Sign Ozone Pact,” New York Times, August 5, 1992, p. A18. 63. Telephone interview with Analyst Thomas Frankiewicz of the Ozone Transport Commission, Washington, DC, March 14, 2001. 64. Matthew L. Wald, “California Car Rules Set as Model for the East,” New York Times, December 20, 1994, p. A16. 65. Research Associate Christopher W. LaBarge’s interview with Director David J. Shaw of the New York State Division of Air Resources, Albany, NY, December 5, 2000 (hereafter referred to as Shaw interview). 66. “Northeast Governors Petition EPA to Control Air Pollution,” a news release issued by the office of New York Governor George E. Pataki, August 14, 1997.

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67. Matthew L. Wald, “Court Backs Most E.P.A. Action on Polluters in Central States,” New York Times, May 16, 2001, p. A24. 68. Randy Kennedy, “Two-Story Buses Fare Poorly in Pollution Tests,” New York Times, January 8, 2000, p. B5. 69. Acid Rain Action Plan (Halifax, NS: Conference of New England Governors and Eastern Canadian Premiers, 1998). See also Charles S. Colgan, “Internationalization of the Governor’s Role: New England Governors and Eastern Canadian Energy, 1973–1989,” State and Local Government Review 23, Fall 1991, pp. 119–26. 70. Shaw interview. 71. Information in this paragraph and the following paragraph is derived from V. Randall Tinsley and Larry A. Nielsen, “Interstate Fisheries Arrangements: Application of a Pragmatic Classification Scheme for Interstate Arrangements,” Virginia Journal of Natural Resources Law 6, Spring 1987, pp. 263–321. 72. Magnuson-Stevens Fishery Conservation and Management Act of 1976, 90 Stat. 347, 16 U.S.C. §1852(a)(1). 73. Telephone interview with Director Gerald Barnhard of the New York Division of Fish, Wildlife, and Natural Resources, Albany, NY, March 26, 2001. 74. Telephone interview with Gordon Colvin of the New York State Department of Environmental Conservation, Albany, NY, April 2, 2001. 75. “Connecticut Drops Challenge to Coastal Fish Law,” Bay Journal 11, May 2001, p. 8. 76. Strategic Plan & Status Review: Anadromous Fish Restoration Program Merrimack River (Nashua, NH: Technical Committee for Anadromous Fishery Management of the Merrimack River Basin, 1997), Appendix I. 77. For background information, consult Dennis E. Erkan, Strategic Plan for the Restoration of Atlantic Salmon to the Pawcatuck River (Providence: Rhode Island Division of Fish and Wildlife, 2000). 78. National Plant Board Membership Manual (Washington, DC: National Plant Board, 2000), p. 3. 79. Telephone interview with Director Robert J. Mungari of the New York Division of Plant Industry, Albany, NY, October 30, 2000. 80. Interview with Executive Director Lynn Rubenstein of the Northeast Recycling Council, Brattleboro, VT, April 5, 2001. 81. Ibid. 82. Research Associate Nicolas J. Parrella’s interview with Director William C. Colden of the Bureau of Waste Reduction and Recycling, New York State Department of Environmental Protection, Albany, NY, April 3, 2001. 83. Annual Report 2000 (Boston: Northeast Waste Management Officials’ Association, 2001), p. 1. 84. Ibid., p. 3. 85. Ibid. 86. Ibid., p. 6. 87. New Hampshire Laws of 1987, Chap. 311 and New Hampshire Statutes Annotated, §227-E:6. 88. Vermont Laws of 1988, Chap. 208 (Adj. Sess.) and Vermont Statutes Annotated, tit. 10, §§1191 and 1193. 89. Ibid., §1193(a).

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90. Letter from Executive Director Sharon F. Francis of the Connecticut River Joint Commissions, Charlestown, NH, June 8, 2000. 91. Working in Partnership (Charlestown, NH: Connecticut River Joint Commissions, n.d.), p. 3. 92. Ibid., pp. 5–15 and interview with Executive Director Sharon F. Francis of the Connecticut River Joint Commissions, Charlestown, NH, August 1, 2000 (hereafter referred to as Francis interview). 93. Interview with Connecticut River Navigator Daniel Burke, Hinsdale, NH, July 24, 2001. 94. Francis interview. 95. Paul v. Virginia, 75 U.S. 1 (1868). 96. United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) and McCarran-Ferguson Act of 1945, 59 Stat. 33, 15 U.S.C. §1011. 97. Metropolitan Life Insurance Company v. Ward, 470 U.S. 869 (1985). 98. Sandra B. McCray, “Federal Preemption of State Regulation of Insurance: End of a 200 Year Era?” Publius 23, Fall 1993, pp. 33–47. 99. Telephone interview with Steven Maluk, assistant director of policies of the New York State Department of Insurance, Albany, NY, February 5, 2001 (hereafter referred to as Maluk interview). 100. Gramm-Leach-Bliley Financial Reorganization Act of 1999, 113 Stat. 1353, 5 U.S.C. §6701(d)(2)(A). See also Rob Gurwitt, “The Riskiest Business,” Governing 14, March 2001, pp. 19–22. 101. Gramm-Leach-Bliley Financial Reorganization Act of 1999, 113 Stat. 1422, 15 U.S.C §6751. 102. Telephone interview with Edward Dinkel of the National Association of Insurance Commissioners, May 3, 2001. 103. Financial Regulation Standards and Accreditation Program (Kansas City: National Association of Insurance Commissioners, 2000), p. 1. 104. Maluk interview. 105. Insurance Regulation: Assessment of the National Association of the Insurance Commissioners (Washington, DC: U.S. General Accounting Office, 1991), p. 32. 106. Insurance Regulation: The Financial Regulation Standards and Accreditation Program of the National Association of Insurance Commissioners (Washington, DC: U.S. General Accounting Office, 1992), p. 1. 107. Insurance Regulation: The National Association of Insurance Commissioners’ Accreditation Program Continues to Exhibit Fundamental Problems (Washington, DC: U.S. General Accounting Office, 1993), p. 3. 108. Regulatory Initiatives of the National Association of Insurance Commissioners (Washington, DC: U.S. General Accounting Office, 2001). 109. Joseph F. Sullivan, “Trenton Sues Freeloaders on Insurance,” New York Times, February 28, 1992, p. B1. 110. “Mass. Starts Crackdown on Illegal NH Plates,” Union Leader (Manchester, NH), May 9, 1995, p. A10. 111. “NH, Maine Face Off over Snowmobile Trail Rights,” Union Leader (Manchester, NH), April 23, 2001, p. B3. 112. New York Vehicle & Traffic Law, §§516(1)(b)(1–2) and 516–1.

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113. Kenneth C. Crowe, “Policy a Roadblock to Speeding Truckers,” Times Union (Albany, NY), August 26, 2001, pp. E1, E11. 114. Interview with Driver Safety Director Erle R. Daniels, New York State Department of Motor Vehicles, Albany, NY, October 19, 2000. 115. New York Vehicle & Traffic Law, §516-b. 116. www.cvsa.org. 117. Robert Hanley, “With Ease Comes Expense: E-Z Pass Starts on Turnpike, But So Do Toll Increases,” New York Times, September 30, 2000, p. B5. 118. Robert Hanley, “E-Z Pass Survives Rush Hour on Turnpike,” New York Times, October 3, 2000, p. B5. 119. Jim McKay, “Revitalizing the Roadways,” Government Technology, March 2001, p. 52. 120. www.I95coalition.org. 121. Randy Kennedy, “I-95, a River of Commerce Overflowing with Traffic,” New York Times, December 29, 2000, pp. 1, B6. 122. Business Plan 2000 Update (Saratoga Springs, NY: The I-95 Corridor Coalition, 2000). 123. “Massport Urges Travelers to Use Regional Airports,” Telegram & Gazette (Worcester, MA), January 5, 2001, pp. E1, E3. 124. Michael J. Scott, “Attention Emall Shoppers!” State Government News 42, May 1999, pp. 26–27. 125. E-mail message to author from Program Director John Clark of the U.S. General Services Administration’s Office of Intergovernmental Solutions, April 20, 2001. 126. New York Tax Law, §620. 127. “2-State Pact Bars Double Taxation,” New York Times, February 9, 1958, p. 22. 128. William R. Greer, “New York Joining Jersey to Combat Sales-Tax Evasion,” New York Times, June 7, 1985, pp. 1, B5. 129. “N.Y.–N.J. Tax Pact Targets Cheaters,” Knickerbocker News (Albany, NY), February 21, 1986, p. 5A. 130. Letter from New York State Deputy Commissioner of Taxation and Finance Michelle A. Cummings, June 4, 2001. 131. Richard J. Meislin, “10 States Link Efforts to Hunt Tax Cheaters,” New York Times, January 17, 1986, p. B1. 132. Julie Bennett, “States Look to Share Data, Collect More Taxes,” City & State, May 24, 1993, p. 13. 133. IFTA Legislation and State Constitutional Provisions Project: Final Report (Denver: National Conference of State Legislatures, 1999), p. 1. 134. Robert C. Pitcher, “The International Fuel Tax Agreement: Are There Lessons Here for Sales and Use Taxation?” State Tax Notes 20, March 12, 2001, p. 890. 135. IFTA Legislation and State Constitutional Provisions Project, p. 6. 136. International Registration Plan (Albany: New York State Department of Motor Vehicles, 2000), p. 17. 137. Ibid., p. 16. 138. Pitcher, “The International Fuel Agreement,” p. 891. 139. International Registration Plan, p. 7.

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140. Interview with Director Michael J. Filmer, International Registration Bureau, New York State Department of Motor Vehicles, Albany, NY, February 9, 2001. 141. “Rewriting the Rules,” Government Technology, January 2001, p. 50. 142. “Streamlined Sales Tax Project,” a fact sheet provided by project co-chair Diane Hardt, Wisconsin Department of Revenue, January 16, 2001. See also Doug Sheppard, “Streamlined Project Moves Ahead with 2001 Agenda,” State Tax Notes 20, March 12, 2001, pp. 874–78. 143. 15 U.S.C. §1172(a) and 18 U.S.C. §1301. 144. E-mail message from Executive Director Chuck Strutt of the Multi-State Lottery, August 8, 2001. 145. Nicole M. Christian, “2 Winners Share the Biggest Lottery Jackpot in U.S. History,” New York Times, May 11, 2000, p. A25. 146. “Siblings Claim Final Share of Powerball,” USA Today, August 31, 2001, p. 3A.

Chapter 7

INTERSTATE COOPERATION: AN ASSESSMENT

The U.S. Constitution, by dividing exercisable political powers between Congress and the states, opens the doors to interstate disputes and interstate cooperation. Many disputes are settled by means of negotiations leading to entrance of the concerned states into interstate compacts and/or administrative agreements. Intractable disputes are adjudicated by the U.S. Supreme Court exercising its original jurisdiction. Interstate cooperation commenced to assume greater importance in the federal system during the second decade of the twentieth century as state legislatures enacted into law interstate compacts authorizing the joint construction and operation of facilities and provision of services, and statutes empowering state officers to enter into administrative agreements with their counterparts in sister states. Today, relations between states are complex and metamorphic in nature, and interstate compacts and administrative agreements cover a wide spectrum of important economic, political, and social subjects as revealed in Chapters 4–6. This chapter summarizes briefly the findings made in Chapters 3–6 and draws specific conclusions, based upon the findings, relative to the negotiation and effectiveness of interstate compacts and administrative agreements in harmonizing state governmental policies and promoting cooperative actions. The quintessential ingredient necessary for harmonious interstate relations is a cooperative spirit animating negotiations to resolve disputes and achieve synchronous state actions to solve transboundary problems. Although interstate compacts are the oldest mechanism for achieving uniform state policies or joint state action, formal and informal administrative agreements today are the basis for the bulk of interstate cooperative actions

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and are an increasingly important mechanism for interlocking two or more states in a common policy in a less legally complex manner than a similar policy established by a compact or a uniform state law. Admittedly, a number of agreements in practice may be little more than the veneer of cooperation, but others are of great significance and smooth the functioning of the federal system. The nature of a desired interstate relationship determines whether it should be based on a compact, formal administrative agreement, or informal administrative agreement. The compact device is most useful when there is a need to resolve two important legal matters—reimbursement of assistance costs by the requesting state and liability for actions taken on an interstate basis. Administrative agreements, particularly informal ones, are most suitable when the concerned states wish to retain the ability to change quickly the terms of agreements. INTERSTATE COMPACTS The latent potential of compacts for linking states together to operate facilities jointly was not realized until the creation by interstate compact of the Port of New York Authority in 1921 that ushered in a transitional period between the almost exclusive earlier use of compacts to resolve boundary disputes and the more recent facility, recommendatory, regulatory, and service compacts. Congress as early as 1911 formally recognized the value of compacts in promoting interstate cooperation by granting its blanket consent-in-advance to compacts conserving forests and water. This congressional action, however, did not result in enactment of compacts by state legislatures. The very limited use of compacts, other than to solve boundary disputes, until the twentieth century can be explained in part by the relative lack of need for them during the period of time when the United States was primarily an agricultural nation that gradually was becoming more industrialized and urbanized. The transportation and communications revolutions required more frequent interstate intercourse, highlighted the problems caused by conflicting statutes of sister states, and generated political pressures for enactment of uniform state laws. Thanks to the foresight of the drafters of the U.S. Constitution, the compact device is available for utilization to establish interstate public authorities to construct and operate bridges and tunnels, permit the joint exercise of regulatory authority, provide services on a reciprocal basis, and create commissions to study and draft solutions for major multistate problems. Credit for promoting the enlarged use of the constitutional device also can be ascribed in part to Felix Frankfurter’s and James M. Landis’ 1925 influential Yale Law Journal article on interstate adjustments that described the use of the compact device to solve eight major types of public problems and concluded: “The imaginative adaptation of the compact idea should

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add considerably to resources available to statesmen in the solution of problems presented by the growing interdependence, social and economic, of groups of States forming distinct regions.”1 In addition, the Council of State Governments for several decades played a major role in drafting and promoting the adoption of compacts, but unfortunately has not played a significant role since the 1960s. The paramountcy of a compact over existing conflicting laws of the party states is one of its major advantages. A state voluntarily surrenders part of its sovereignty by entering into a compact that the U.S. Supreme Court has ruled is an enforceable legal contract. This fact accounts in part for the long time period required to negotiate and enact certain compacts and the inability to secure enactment of a negotiated compact by state legislatures that are risk adverse and/or reluctant to give up a sovereign power(s). Some observers cite the protracted time period required to negotiate and enact a compact as a disadvantage, but others view these negotiations as essential for the protection of the rights of states. Writing in 1936, Alice M. Dodd reviewed the use of compacts, commented they are not involved in partisan politics, and concluded they are “admirably adapted to action and to result.”2 Marshall E. Dimock and George C.S. Benson in 1937 asked a significant question: “Can Interstate Compacts Succeed?” Their answer was “the potential utility of the device extends to the entire range of permissible legislative activity.”3 The reader must keep in mind they were writing in the midst of the great depression when state governments appeared to be impotent in terms of necessary remedial actions and the national government was viewed as “overburdened.”4 Nevertheless, their answer rings true at the beginning of the twenty-first century. Garland C. Routt in 1940 examined experience with interstate compacts and acknowledged the criticisms of the compact device “without denying its value as an instrument of government in certain situations.”5 In his judgment, a compact is capable of solving public problems extending across state boundary lines that are outside the powers of Congress. He also anticipated that as compacts became more common and customary the time required for their negotiation and enactment would decrease. Subsequent compact experience generally does not bear out his prognostication. Harold J. Laski, in his 1948 opus on the American governmental system, summarily dismissed the U.S. Constitution’s compact clause as requiring “geological time to achieve the results that are desirable” and was convinced the United States does not have such time “at its disposal.”6 Frederick L. Zimmermann and Mitchell Wendell for decades were leading students and advocates of interstate compacts. In 1951, they referred to the heralding of the device as an alternative to congressional action that “obscured its possibilities as a means of administrative integration.”7 Their study documented an increased willingness on the part of states to coop-

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erate on complex matters as evidenced by establishment of an interstate commission for the Upper Colorado River Basin and the accomplishments of the Port of New York Authority while admitting it had not solved the railroad problem that prompted its creation.8 Compact-created river valley authorities in their judgment were highly desirable because they provide “for the weighing of state and national interests.”9 This vertical and horizontal weighing of interests subsequently assumed greater importance with the enactment of five federal-interstate compacts—Delaware River Basin Compact, Appalachian Regional Compact, Susquehanna River Basin Compact, Apalachicola-Chattahoochee-Flint Rivers Basin Compact, and Alabama-Coosa-Tallapoosa Rivers Basin Compact—by Congress and the concerned state legislatures. In a 1953 book, Vincent V. Thursby appraised interstate compacts and judged they are “well-adapted to serve some purposes and ill-adapted to serve others.”10 He also deemed the requirement for congressional consent to be desirable because the national legislature is afforded “an opportunity to view the compact’s projected treatment of regional problems with respect to its bearing on the welfare of the nation as a whole.”11 Subsequently, one compact became national when all states enacted the Compact on Juveniles. Thursby’s statement, of course, ignores the fact that not all compacts are submitted to Congress for its consent. Nevertheless, it is reasonable to conclude future major regional compacts that potentially impact the nation will be submitted to Congress for approval. Richard H. Leach and Redding S. Sugg, Jr. conducted a comprehensive study of interstate compact commissions and in 1959 termed them successful with respect to achieving compact goals and “meeting the current problems in their respective fields.12 Their success was attributed to “the high quality of their work,” the fact compacts were “the only way to handle the issues in questions,” dedication of the commissions’ members and staff, and support “from the Council of State Governments, from many of the State Commissions on Interstate Cooperation, and from the various branches of the federal government.”13 Leach and Sugg asked whether the commissions are “making the greatest possible contribution to the solution of American governmental problems?”14 They hedged their answer to this question by opining time is required “to develop the habit of using any new social tool, and even more time to fit its use into the already complicated pattern of American federalism.”15 They explained the number of such commissions is small and the future of the device depends on whether states will agree to use compacts to address problems individual states have been unable to solve. Weldon V. Barton’s 1967 book reviewed four regulatory compacts, three metropolitan area compacts, six water management compacts including the Delaware River Basin Compact, and seven service compacts.16 His principal findings were the compact device has been employed to protect the powers

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of the states, and business interests have joined with state officers in promoting certain compacts such as the fishery and oil compacts.17 He also found service compacts were handicapped by limited funds with the exception of the Southern Regional Education Compact’s dentistry and medicine programs.18 In his judgment, establishment of a commission to administer service compacts “can result in a higher level of agreement among compacting states than would flow from an administrative arrangement of regular state officials.”19 Finally, Barton cautioned against drawing conclusions in favor of or in opposition to the compact device because “compacts have been used both to promote broader interests and to serve and protect special interests.”20 Marian E. Ridgeway in 1971 examined four interstate compacts whose membership included Illinois—Bi-State Development Compact, Wabash Valley Compact, Oil Compact, and Great Lakes Basin Compact.21 She reported experience with these compacts could not be utilized as an “unqualified endorsement of them as exemplary designs for successful regional and interstate government in America.”22 Three compacts, in her judgment, had failed to meet their expectations at the time of enactment and “appear merely to provide new complexities in administrative organization and practice, and to erect additional power centers, often ineffective in accomplishing public ends but generally obstructive while officially establishing particularized vested interests in state-protected positions of individual advantage.”23 Ridgeway drew a generalized conclusion relative to the proliferation of compacts and maintained they were drafted and considered inadequately by state legislatures, are not subject to objective evaluation, “are to some degree undemocratic and unrepresentative,” and are dominated by staff.24 The charges compacts are not evaluated and are dominated by staff are charges often directed at all public authorities regardless of whether they are state, interstate, or local ones. Ridgeway was convinced the federal system was being reshaped by the increasing number of interstate compacts and contended the complex system is “being made even more complex, less clearly compartmentalized, more difficult to control by law and popular action because less easily seen and less easily organized for the placing of responsibility and authority.”25 Two years later, Susan Welch and Cal Clark found the growing number of interstate compacts and expansion of their scope of responsibilities had promoted “increased regional linkages and increased national ones.”26 They also noted the newer compacts were less apt to possess regulatory authority than compacts established in the 1930s and 1940s. In 1976, Zimmermann and Wendell reviewed again the compact mechanism and found it played a major role in multilevel governmental integration. In particular, they cited the opportunity for federal government participation in “the establishment of vertical federal-state arrangements along with interstate agreements as part of a single legal pattern.”27 The

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latter can be the product of federal-state compact or congressional consent for a “compact can contain integrating language and directions providing a more or less complete marriage of the federal statute and the interstate compact.”28 These scholars also recognized the potential use of a compact to link political subdivisions in two or more states together for a common purpose as illustrated subsequently by the Dresden and Rivendell Interstate School Districts in New Hampshire and Vermont (see Chapter 4).29 In addition, they cited as an advantage the use of the compact clause by states to enter into agreements with neighboring foreign governments.30 Zimmermann and Wendell addressed the three major criticisms of the compact device. The criticism that participation of all states in a region is required for a compact’s success was viewed as unrealistic since the passage of time may erode the opposition in a nonparticipating state.31 They also rendered the second criticism less valid by citing examples of compacts enacted with relative ease and pointing out the average length of time required to negotiate a contract is distorted by the inclusion of water allocation compacts and any instrument chosen to reach an agreement on this subject will be very time consuming.32 The third criticism—alleged compact inflexibility—is defused in part by the explanation it is not unreasonable to employ contracts even though unanimous consent is necessary for amendments, and provisions can be included in a compact for expediting amendments to meet certain conditions should they arise in the future.33 Zimmermann and Wendell, however, acknowledged congressional consent may be required for even minor compact amendments and suggested “Congress might give prior consent in its original grant to changes clearly within the scope and standards of the original agreement.”34 The ability of Congress to protect the national interest would remain intact since the consent typically reserves to Congress the right to “alter, amend, or repeal” its consent. This suggestion is an important one that should be adopted by Congress. Patricia S. Florestano in 1994 reviewed the uneven pattern of utilization of interstate compacts in the United States and concluded they “continue to be a viable instrument of cooperation and offer a potential tool for problem resolution between states.”35 She anticipated there would be a greater number of regional compacts, fewer bilateral ones, and no novel compact uses in the future. Carol S. Weissert and Jeffrey S. Hill in the same year examined low-level radioactive waste compacts, promoted by Congress, that generally have failed to achieve their objective: construction of regional disposal facilities. They accorded recognition to the fact that a few national compacts, relating to traditional state functions, were enacted in the 1970s, but concluded their national use is undesirable unless there is regional support for solving a problem.36 In 1995, General Counsel Richard A. Cairo reported on the experience

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of his compact commission—Susquehanna River Basin Commission—that was created by a federal-interstate compact. He wrote that “each time the commission meets, the dialogue among its members is an exercise in cooperation which often heads off possible disputes and identifies areas where the states can work together either on their own initiative or through the commission.”37 In his judgment, the commission acts as an administrative forum to settle disputes relative to waters of the river basin, thereby making unnecessary a court suit that would be “more expensive, time consuming, and unpredictable.”38 Ann O’M Bowman conducted a study of interactions—competition, conflicts and cooperation—between sister states and reported in 2001 “it appears that cooperation is more extensive than competition.”39 Our review of compacts generally supports most conclusions of the researchers cited above. A number of compacts incorporate important compromises on what had been intransigent issues. Experience reveals compacts tend to be very successful if they establish commissions to conduct studies, and operate bridges and tunnels. Similarly, compacts relating to areas of traditional state concern—protecting children and supervising probationers and parolees—and administered by state departments and agencies tend to be highly successful. The fact that at least fifty-four compacts are inactive suggests many failed to achieve their goals although several compacts— such as the 1785 compact relating to fishing rights and navigation rules on Chesapeake Bay and the Potomac River—have been superseded by related newer ones, including the 1958 Potomac River Fisheries Compact, or have had their missions preempted by Congress as illustrated by the Air Quality Act of 1967 assuming the responsibilities of the Interstate Compact on Air Pollution and the Mid-Atlantic State Air Pollution Control Compact. Laski’s comment can be dismissed as not supported by the evidence. Ridgeway’s conclusions that compact commissions are staff dominated, undemocratic, and unrepresentative are overgeneralizations based on her study of only four compacts. As noted, these charges are directed at all public authorities be they interstate, state, or local ones. Chapter 4 explains the Port Authority of New York and New Jersey Compact grants each governor a veto power over contemplated authority actions. In other words, the authority’s board of commissioners is responsible for policy decisions to the governor in the same manner as the heads of regular state departments and agencies. Some advocates of the authority device may view the veto power as undesirable as it enables the concerned governors to interject political considerations into the authority’s policy-making process. And one must not forget Congress in granting consent reserves the right to amend, revise, or terminate a compact. There also is evidence at least one state public authority is not staff dominated and is responsive to elected officers. Edward E. Winders examined the above charges to determine whether they applied to the New

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York State Thruway Authority. In 1998, he discovered a number of recommendations advocated by authority critics had been adopted—“creation of a special central governmental unit for overseeing authorities, merit hiring, submission of substantive topical reports to elected officials, competitive bidding, external audits, and ethics and open meeting requirements.”40 Winders also found “disjointed and uncoordinated decision-making in the area of highway transportation has been minimized by formal administrative agreements” entered into by the authority with state, interstate, and local governmental agencies.41 In addition, eleven New York State public authorities, although not the Thruway Authority, are under the jurisdictions of the Public Authorities Control Board and each of two authorities are linked directly to a state administrative department. The Urban Development Corporation is an implementing arm of the New York State Department of Economic Development and the Environmental Facilities Corporation is an implementing arm of the Department of Environmental Conservation. Furthermore, the corporation’s chairman is the commissioner of environmental conservation. Currently, no state legislature conducts a periodic comprehensive review of all compacts, and the only state legislature to have conducted such a review is the Maryland General Assembly which created in 1972 a Commission on Intergovernmental Cooperation, a joint legislative committee charged with conducting studies of compacts. Florestano reported in 1994 that the commission approved most compacts and recommended amendments to several compacts and withdrawal from the Bus Proration Compact and the National Guard Compact.42 The fact state legislatures do not evaluate compacts systematically on a periodic basis suggests members generally are receiving few, if any, constituent complaints about compacts or compact commissions. Nevertheless, review of compacts by member state legislatures decennially would be desirable. It should be noted the lieutenant governor of Wisconsin systematically examined the Minnesota-Wisconsin Boundary Area Commission and its compact, and in 1998 recommended the state legislature should continue to support the compact.43 Our review of compacts (see Chapters 4–5) reveals many have been very successful. The success in certain instances is due to the straightforward responsibility assigned to a commission or state officers who administer a compact. The Connecticut River Flood Control Commission, for example, basically performs a ministerial function; that is, determining the amount of money downriver states must pay upriver towns for loss of property tax revenue attributable to dam construction. The regional higher education commissions have been unqualified successes as have the Agreement on Detainers and the Palisades Interstate Park Commission. The most effective compact in terms of goal achievement undoubtedly is the Waterfront Compact for the Port of New York. Corrupt practices and criminals were re-

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moved quickly after the compact became effective and criminals have been unable to reestablish themselves in the port district. The evidence supports the conclusions federal-interstate compacts promote cooperative national-state and interstate relations by ensuring that the concerns of the national government and state governments are taken into consideration in a compact commission’s policy-making process. No member state of the Delaware River Basin Compact has filed a notice of intent to sue another member state with the U.S. Supreme Court relative to the Delaware River Basin since the compact became effective. Certain compacts have a mixed record or have been controversial since their proposal. The Port Authority of New York and New Jersey has been criticized for its failure to achieve its original goal of solving the railroad problem in the port district and more recently its operation of Kennedy and LaGuardia Airports has been castigated by New York City Mayor Rudolph Guiliani who announced in 2000 he would seek to terminate the city’s contract with the authority to operate the airports. Consumer protection groups, labor unions, fluid milk processors, and others view the Northeast Interstate Dairy Commission as a legal monopolistic body that increased the price of milk in the New England states, thereby burdening low-income citizens. The compact resulted in higher milk prices, but there is evidence processors took advantage of the compact to increase milk prices by a larger amount than justified by the actions of the compact commission. Although not controversial, the record of the Interstate Compact on Parole and Probation is mixed because of the reluctance of a number of states to accept the return of certain parolees and probationers. The New Hampshire–Vermont Interstate Solid Waste Compact is unpopular in member New Hampshire municipalities, but is well accepted in member Vermont towns. The unhappiness on the part of many citizens in member New Hampshire towns can be attributed in part to the fact the incinerator and the ash landfill are both located in the state. While an argument can be made one facility should have been located in each state, economics dictated the two facilities should be located in relatively close proximity to each other. Part of the opposition in New Hampshire may disappear since the landfill stopped accepting incinerator ash in February 2001 and will be capped and sealed. Controversy still surrounds the site since the host town, Newport, has adopted an ordinance prohibiting the storage of mixed solid waste at the site and a number of the solid waste project supporters argue the town should purchase the site if the town wants to prevent the storage of such wastes. The dormant compacts were not all necessarily unsuccessful. Congress, as noted, preempted four air pollution abatement compacts before they became operational. In addition, newer compacts and interstate administrative agreements subsumed some of the purposes of other dormant com-

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pacts. However, we can conclude beyond doubt eight of the ten low-level radioactive waste compacts and the Tri-State Regional Planning Compact (Connecticut, New Jersey, New York) have been failures. Two low-level radioactive waste compact commissions are utilizing preexisting disposal facilities and the other commissions have not developed disposal facilities. The dormant Tri-State Regional Planning Commission in the New York City metropolitan area was criticized heavily for “cautious and bland” plans, avoidance of critical economic and social issues by activists, and alleged lack of relevance of its work by a number of state and local government officers.44 We conclude interstate compacts, taken together as a whole, have had considerably more successes than failures. A few have been spectacular successes. Others, including the Port Authority of New York and New Jersey, rightfully can cite several major achievements, but also need to acknowledge their failure(s). Still others could be dissolved without harm to their objectives as congressional enactments have made certain compacts somewhat redundant. Although we presented evidence the Interstate Environmental Commission continues to help abate water pollution in the greater New York City area, a strong case could be made for its abolition on the ground the Connecticut, New Jersey, and New York State environmental protection departments have been delegated regulatory primacy by the U.S. Environmental Protection Administration under provisions of the Clean Water Act and the Clean Air Act. In consequence, these departments could assume all functions of the commission. We also conclude interstate compacts have great potential for solving existing and future internal state, regional, national problems as there is no constitutional restriction on their employment other than the required congressional consent which may authorize Canadian provinces and Mexican states to join specific compacts. FORMAL INTERSTATE ADMINISTRATIVE AGREEMENTS Garland C. Routt in 1940 reviewed the various forms of interstate administrative cooperation: (1) adoption of uniform rules and regulations for the interpretation of identical or similar legislation; (2) adoption of uniform or contingent rules, regulations, and procedures to govern interstate dealings; (3) negotiation or arbitration, rather than litigation, of interstate difficulties; (4) mutual recognition and acceptance of findings of fact by state agencies in regard to interstate problems; (5) exchange of reports, rules, regulations, and so forth; and (6) participation in interstate conferences and active membership in associations of public officials.45

State administrative officers in the twenty-first century continue to engage in these cooperative activities with their counterparts in sister states. Not all of the above involve formal administrative agreements.

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An inherent advantage of a formal administrative agreement authorizing multistate action in concert is the relatively short negotiations period prior to signing compared to the time required to negotiate a compact, secure its enactment by the concerned state legislatures, and obtain congressional consent if needed. Furthermore, these agreements generally can be amended and/or terminated more readily than a compact. Such agreements also play a significant role in interstate relations because they can prevent transboundary problems from arising and tend to be relatively permanent in nature. An assessment of these agreements is hindered by the difficulty in locating them because no state has a single depository containing all such agreements. Nevertheless, we can draw conclusions relative to the agreements reviewed in Chapter 6. It is important to bear in mind the scope of responsibilities established by each formal agreement tends to be limited. No reviewed formal agreement has been totally unsuccessful. We conclude the Northeastern States for Coordinated Air Use Management, Ozone Transport Commission, Interstate Identification Index, Commercial Vehicle Safety Alliance, E-Z Pass, I-95 Coalition, fisheries agreements, International Fuel Agreement, International Registration Plan, teacher accreditation agreement, and welfare fraud prevention agreements have been successful. The Streamlined Sales and Use Tax Agreement is too new to assess, but should achieve its goals based upon experience over many years with similar bilateral formal agreements. The record of the criminal intelligence networks is mixed to date. Two networks have excellent reputations, but the others have not had the full support of state police forces. Plant pest agreements also have had mixed success to date. Congress, federal departments and agencies, and professional associations of state administrators should be commended for their actions encouraging states to enter into formal administrative agreements. The evidence suggests they will continue to play major roles in encouraging formal interstate cooperation. INFORMAL INTERSTATE ADMINISTRATIVE AGREEMENTS The popularity of informal interstate administrative agreements is explained by their exceptional flexibility in terms of initiation on an ad hoc or relatively permanent basis. Interviews suggest state administrators prefer informal agreement because they may be reached readily in many instances and there is no need for formal paperwork. Credit must be given to the professionalism of state administrative officers and their national and regional associations for promoting an interstate cooperative modus operandi to solve many collective action problems on a continuing basis.

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Informal agreements generally have achieved their objectives and have been particularly successful in establishing a mutual aid administrative continuum across state boundaries. Ones relating to criminal justice, dairy quality management, electronic purchasing, mutual assistance in emergencies, and rabies have been highly successful. The informal insurance accreditation program, however, has had a mixed record to date, but is improving in quality. IMPROVED INTERSTATE COOPERATION Although our findings support the conclusion interstate cooperation in most instances is good, there is considerable room for improvement. Full use of the potential of interstate compacts and formal interstate administrative agreements has not been achieved, and this failure is attributable to the general neglect of interstate relations by national and state elected officers unless there is a major multistate problem demanding a solution. The subject of interstate cooperation clearly needs to be placed much higher on the agendas of state legislatures and Congress. The latter, for example, could promote fuller utilization of the compact device by granting consentin-advance to amendments, enacted by party state legislatures, falling within the parameters of a compact’s goals as suggested by Zimmermann and Wendell. Centripetal political forces grew in strength commencing in the mid1960s and resulted in Congress increasingly preempting the regulatory authority of states in attempts to solve national problems not resolved by interstate cooperation. These forces today remain strong, but questions can be raised about the desirability of unlimited congressional preemption of the reserved regulatory powers of the states. Although Congress has assumed responsibility for solving a number of critical problems, preemption statutes have not been totally effective.46 It can be argued Congress may possess less expertise than cooperating state legislatures in framing a solution to a national problem on a regional basis, and should devote more of its efforts to encouraging states to enact interstate compacts that are national in scope and also contain addenda addressing the peculiar needs of each region. A “one size fits all” is not necessarily the best approach to eliminating nation-wide problems in a large, geographically diverse nation. The ability of compacts to link a number of functions of local governments, especially ones with small populations, in border areas together is obvious, yet little use has been made of the device for this purpose. Such concordats could be encouraged by state legislatures authorizing financial grants and technical assistance to border local governments to explore the possibilities of the device that might include the establishment of a two-tier local governmental system or an interstate municipality as a replacement for several small local governments. Federal grants also could support

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needed studies of potential interstate compacts designed to solve local governmental problems. The Great Depression of the 1930s encouraged states to engage in mercantilistic practices by erecting barriers to interstate trade that led to a countermovement involving the creation by state legislatures of commissions on interstate cooperation. The first one was established by the New Jersey State Legislature in 1935 and by 1940 forty-two states, with encouragement from the Council of State Governments, had established such commissions—typically ten legislators and five administrators—although their names varied to some extent from state to state with New York terming its commission the Joint Legislative Committee on Interstate Cooperation.47 The council and the commissions sponsored the National Conference on Interstate Trade Barriers in 1939. Hubert R. Gallagher wrote in 1940 the work of the commissions stopped the “drive to erect additional trade barriers in the forty-four legislatures meeting in 1939.”48 He also attributed the enactment of the Palisades Interstate Park Compact to the work of the New Jersey and New York commissions.49 Commissions, of course, did not always achieve their goals. Commissions were active in the 1940s and 1950s, but began to disappear in the 1960s. Their demise may be attributable in part to the fact each state legislator has a relatively narrow constituency and reelection prospects depend heavily upon being responsive to the parochial interests of constituents. The most recent directory, published in 1994, lists twenty-four state commissions on intergovernmental relations, but their focus is vertical relations—state-local cooperation—and not interstate relations.50 New York no longer has its Joint Legislative Committee on Interstate Cooperation, but has a Senate Select Committee on Interstate Cooperation which chiefly collects the annual reports of interstate compact commissions and publishes a directory of compacts. The growing complexity of interstate relations merits the reestablishment of state commissions on interstate relations that also might be responsible for state-local relations. Gallagher highlighted the value of the commissions in the following terms: The advantage of having statesmen who are acquainted with the personnel of legislatures and officialdom of other states and who have mastered the techniques of interstate diplomacy—be it compact, reciprocity, uniform legislation, or a gentlemen’s agreement—is too apparent for further comments.51

A commission could focus on all means of encouraging interstate cooperation to solve transboundary problems more expeditiously and to provide services in the most economic and efficient manner—promotion of the formation of interstate compacts and formal administrative agreements, and the filing and enactment of bills incorporating parallel state statutes or

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uniform laws. An important commission responsibility would be the conduct of periodic reviews of all interstate compacts and formal interstate administrative agreements, and development of recommendations for their continuation, modification, or termination. A related function would be a review of congressional statutes to determine the ones that could be enacted by state legislatures to achieve harmonization of the statutes of the sister states on certain subjects. The U.S. Constitution established a system of concurrent powers enabling state legislatures and Congress to enact statutes on the same subjects unless states are constitutionally forbidden to enact the statutes or Congress has totally or partially preempted state regulatory authority. For example, Congress enacted the Pure Food and Drug Act of 1906 that served as a model for a number of state statutes on the same subject.52 Similarly, the National Labor Relations Act of 1935 was enacted by the state legislature in Massachusetts, New York, Pennsylvania, Utah, and Wisconsin.53 Prospects currently are not good for the creation of commissions on interstate relations. The failure of state legislatures to establish such commissions and to devote more attention to solving transboundary problems by interstate cooperation no doubt will continue to encourage a number of interest groups and citizens to pressure Congress to enact additional partial and total preemption statutes, removing regulatory powers from the states, to solve the problems.54 The preemption statutes may suffer from a major disadvantage—failure to recognize adequately the unique factors in each region that drafters of an interstate compact, in contrast, would take into consideration. Governors, with a statewide constituency, have played important roles historically in finding solutions for interstate problems by promoting interstate compacts and interstate administrative agreements, but they could play an enlarged role if they assigned additional staff to address such problems. Each governor typically has an advisor(s) on intergovernmental relations, but most advisors concentrate on national-state and/or state-local relations. Governors could expand the responsibility of current advisors to include interstate relations and/or appoint advisors responsible for monitoring such relations and advancing recommendations for additional interstate cooperation. Another important initiative would be inclusion in the governor’s annual State of the State Address of a section devoted to interstate problems and proposed solutions. If a state is experiencing major interstate difficulties, the governor could focus more attention on such problems by delivering an annual message on the State of Interstate Relations. Heads of many state administrative departments and agencies, as described in Chapter 6, of necessity are deeply involved in interactions with their counterparts in other states. Department heads could play an enlarged role by recommending to the governor and the state legislature a broad-

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ening of their authority, where needed, to enter into formal and informal administrative agreements with sister state counterparts. Formal administrative agreements should be published and copies placed in a central registry in each state, thereby facilitating their review by the governor, the state legislature, and citizens. Ad hoc agreements should be reviewed by the governor’s staff and state legislative committees to determine their success and possibly convert some, with legislative approval if needed, into formal administrative agreements. Department heads are on the interstate front line and hence are in a position to determine the need for additional interstate compacts, administrative agreements, and uniform state laws. They could be assigned responsibility for making a periodic report to the state legislature and the governor on the need for additional interstate cooperative actions. FEDERALISM THEORY Federalism scholars, with a few exceptions, have focused their attention exclusively on developing theories explaining national-state relations. There is a great need for a broad theory explaining the complexity of interstate relations. The theory of cooperative national-state relations—developed by William Anderson, Morton Grodzins, Daniel J. Elazar, and others—and international relations theory contain elements that could be incorporated into a theory of interstate cooperation.55 A general theory must recognize interactions between sister states are asymmetric and have tenets relating to interstate disputes, compacts, competition, formal and informal administrative agreements, and the roles of Congress, federal agencies, and professional associations of state administrators in promoting interstate compacts and administrative agreements. An obvious theorem is a state will interact most often with a neighboring state(s). Congress plays three roles—inhibitor, facilitator, and initiator—with respect to interstate relations. In some instances, Congress preempts totally or partially the authority of states in certain fields, thereby depriving them of the opportunity to enter into interstate compacts or administrative agreements to solve regional or national problems. The initiative for a preemption statute on occasion comes from the states because of their inability to solve a problem. Interstate cooperation, for example, failed to solve the problem of truck drivers who held operator licenses issued by several states and would continue to drive if their respective license in a given state was suspended or revoked. Congress responded by enacting a total preemption statute—Commercial Drivers License Act of 1986—making it a federal crime for a driver to have more than one license that must have recorded on it all highway violations.56 As we have seen, Congress facilitates interstate cooperation by granting consent in advance to compacts and encour-

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aging states to enter into compacts and to enact uniform laws. Furthermore, Congress performs an initiator role by creating interstate bodies such as the Ozone Transport Commission. A key tenet is the role played by professional state administrators and their associations in drafting administrative agreements, encouraging members to cooperate with each other, and providing a forum for discussion of issues leading to the establishment of personal friendships facilitating interstate administrative cooperation. The theory also must explain interstate disputes (water and boundaries are examples), and competition for industrial firms, gamblers, and tourists may hinder state entrance into interstate compacts and extra-constitutional formal and informal interstate administrative agreements. CONCLUDING COMMENT Replacement the Articles of Confederation and Perpetual Union by the U.S. Constitution automatically formed a more perfect union that subsequently has been perfected to a degree by interstate compacts and interstate administrative agreements, formal and informal, sanctioning interstate cooperative endeavors that lubricate the federal system. Experience has demonstrated the old axiom that the whole is greater than the sum of its parts applies to many cooperative interstate endeavors. Interstate cooperation has failed to solve a number of important regional and national problems. This fact and the continuation of a labyrinth of conflicting state laws impeding the free flow of interstate commerce encourage adversely affected interest groups to lobby Congress to enact additional preemption statutes removing partially or totally regulatory powers from the states. Unfortunately, preemption statutes impede the development of interstate experimental laboratories capable of inventing solutions for old regional and national transboundary problems. Congress should use its delegated powers more imaginatively to encourage interstate cooperation. In sum, the twenty-first century should witness the continuing restructuring of the federal system by expanded use of interstate compact and interstate administrative agreements providing for joint and reciprocal actions resulting in harmonization of policies of the several states. Voluntary sister state reciprocity in particular will become more common than constitutionally required reciprocity. We conclude by predicting the continuing electronic information revolution will assume greater importance in promoting multistate cooperation to overcome cleavages caused by artificially drawn state boundary lines.

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NOTES 1. Felix Frankfurter and James M. Landis, “The Compact Clause of the Constitution—A Study in Interstate Adjustments,” Yale Law Journal 34, May 1925, pp. 696, 729. 2. Alice M. Dodd, “Interstate Compacts,” U.S. Law Review 70, October 1936, p. 573. 3. Marshall E. Dimock and George C.S. Benson, Can Interstate Compacts Succeed? (Chicago: University of Chicago Press, 1937), p. 20. 4. Ibid., p. 21. 5. Garland C. Routt, “Interstate Compacts and Administrative Co-operation,” The Annals of the American Academy of Political and Social Science (hereafter referred to as The Annals) 207, January 1940, p. 101. 6. Harold J. Laski, The American Democracy (New York: The Viking Press, 1948), p. 156. 7. Frederick L. Zimmermann and Mitchell Wendell, The Interstate Compact Since 1925 (Chicago: The Council of State Governments, 1951), p. 110. 8. Ibid., p. 111. 9. Ibid., p. 119. 10. Vincent V. Thursby, Interstate Cooperation: A Study of the Interstate Compact (Washington, DC: Public Affairs Press, 1953), p. 143. 11. Ibid. 12. Richard H. Leach and Redding S. Sugg, Jr., The Administration of Interstate Compacts (Baton Rouge: Louisiana State University Press, 1959), pp. 219–20. 13. Ibid., pp. 213–14. 14. Ibid., p. 221. 15. Ibid. 16. Weldon V. Barton, Interstate Compacts in the Political Process (Chapel Hill: University of North Carolina Press, 1967). 17. Ibid., pp. 163–64. 18. Ibid., p. 160. 19. Ibid., p. 161. 20. Ibid., p. 186. 21. Marian E. Ridgeway, Interstate Compacts: A Question of Federalism (Carbondale: Southern Illinois University Press, 1971). 22. Ibid., p. 292. 23. Ibid. 24. Ibid., pp. 295–96. 25. Ibid., p. 308. 26. Susan Welch and Cal Clark, “Interstate Compacts and National Integration: An Empirical Assessment of Some Trends,” The Western Political Quarterly 26, September 1973, p. 483. 27. Frederick L. Zimmermann and Mitchell Wendell, The Law and Use of Interstate Compacts (Lexington, KY: The Council of State Governments, 1976), p. 50. 28. Ibid. 29. Ibid., p. 52.

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INDEX

Act 60 of 1997, 86–87 Administrative agreements, 164–202, 204 Advisory Commission on Electronic Commerce, 193 Advisory compact, 55 Agricultural compacts, 55 Air pollution abatement agreements, 176–77 Airports, 189 Alabama-Coosa-Tallapoosa Rivers Basin Compact, 206 American Bar Association, 11 Anderson, William, 170, 217, 220 n.55 The Annals of the American Academy of Political and Social Science, 1 Apalachicola-Chattahoochee-Flint Rivers Basin Compact, 206 Appalachian Regional Compact, 60, 206 Arizona v. California, 120, 140 nn.201– 2 Articles of Confederation and Perpetual Union, 1, 4–6; defects, 5–6, 10, 19, 24, 26–27, 29–30, 32–33, 40, 47, 103, 218 Atlantic Coastal Fisheries Cooperative

Management Act of 1993, 105, 137 n.130 Atlantic States Marine Fisheries Compact, 103–6, 178 Atlantic Striped Bass Conservation Act, 58, 66 n.91, 105, 137 n.129 Atomic Energy Act of 1946, 106 Attorneys general, 167–69 Austin v. New Hampshire, 28, 36 n.36 Avery, Allen, 134 n.65 Bailey, Ken, 100, 136 n.110 Baker, Donna C., 162 n.40 Barnhart, Gerald, 106, 138 n.135, 178 n.73 Barton, Weldon V., 92, 105–6, 135 n.81, 138 n.135, 206–7, 219–20 nn.16–20 Beame, Abraham, 75–76 Benson, George C.S., 205, 219 n.3 Bentley, Robert, 198 n.54 Bernstein, Melvin, 83, 134 nn.46–47 Big Game Lottery, 194 Bill of attainder, 7–8 Bill of Rights, 7–8 Birkhead, Guthrie S., 135 n.73 Bi-State Crab Advisory Committee, 122

250

INDEX

Blood alcohol content standard, 13– 14 Blumenthal, Richard, 105, 178 Bootlegging, 173 Boundary compact, 55 Bowman, Ann O’M, 41–42, 63 nn.9, 13, 168, 197 n.29, 209, 220 n.39 Brennan, Joseph, 83 Burke, Daniel, 183, 200 n.93 Burkhead, Jesse, 135 n.73 Butcher, Walter R., 66 n.98 Buttlegging, 173 Byrne, Brendan, 44, 75 Cabazon Band of Mission Indians v. California, 61, 67 n.102 Cairo, Richard, 135 n.80, 136 n.91, 208–9, 220 nn.37–38 California Low Emission Vehicles Program, 15, 176 Carey, Hugh L., 75 Casey, Robert P., 165 Celler, Emanuel, 65 n.44, 77, 133 n.221 Cellucci, Paul, 101 Chesapeake Bay Compact, 122 Child support, 21, 24 Children compacts, 146–49 Choice of law decisions, 22 Civil defense compacts, 56, 153 Clark, Cal, 207, 219 n.26 Clark, Jerry, 198 n.57 Clean Air Act Amendments, 15, 18 n.38, 176 Cleary, Edward J., 128, 141 nn.235, 238 Coast Guard Authorization Act of 1984, 14, 17 n.33 Coefficient clause, 9 Cohen, Neil B., 17 n.18 Colden, William C., 199 n.82 Colgan, Charles S., 199 n.69 Colorado River Compact, 58, 119–21 Columbia River Gorge Commission, 130 Colvin, Gordon, 106, 138 n.137, 178 n.74, 199 n.74 Commager, Henry S., 17 n.8

Commercial Motor Vehicle Safety Act of 1986, 14, 17 n.30 Commercial Vehicle Safety Alliance, 186–87 Commissions on interstate cooperation, 215 Committee of the States, 5 Compact amendment and termination, 53–54 Compact commissions, 69–132; appointment and removal of members, 69–72; organization and powers, 72– 74; state and congressional intervention, 74–78 Compacting process, 39–67 Conant, James B., 83–84, 134 nn.48– 49 Concurrent powers, 2, 10 Conditional grants-in-aid, 9–10, 12 Conference of New England Governors and Eastern Canadian Premiers, 177 Congressional consent, 43, 47–53; effects, 51–53, 217–18; types, 48–51 Congressional consent in advance, 12, 41, 49 Connecticut Compromise, 7 Connecticut River Basin Atlantic Salmon Restoration Compact, 96–97 Connecticut River Flood Control Compact, 95, 210 Connecticut River Joint Commission, 115, 130–31, 182–83 Connecticut River Valley Resource Commission, 130–31, 182–83 Connecticut River Watershed Advisory Commission, 131, 183 Constantine, Thomas A., 171, 197 n.42, 198 nn.47–48 Constitutional convention, 6–7; ratification campaign, 7–8 Constitutional power distribution, 8– 11 Continental Congress, 4, 20, 26, 29, 40 Contract clause, 31 Corrections compacts, 149–52 Cotterill, Ronald W., 100, 137 nn.111– 13

INDEX Council of State Governments, 41, 114, 144, 152, 181, 205–6 Cox, Jean M., 198 n.56 Crime Control and Corrections Compact, 56 Crime Control Consent Act of 1934, 49, 59, 64 n.41, 66 n.92 Crime Identification Technology Act, 170, 197 n.41 Criminal intelligence agreements, 169– 74 Critical Item Truck and Bus Inspection Procedure, 186 Cropp, Bob, 100 Cross-over sanctions, 10, 12–13 Cultural compact, 56 Cummings, Michelle A., 201 n.130 Cuomo, Mario M., 135 n.78, 145, 161 nn.9, 12, 166 Cuyler v. Adams, 51, 65 n.60, 161 n.3 Daniels, Erle R., 157, 162 nn.35–36, 39, 200 n.114 Davidson, Donald, 62, 67 nn.106, 108 Davy, Martin L., 128 Dean, Howard, 166 Defense of Marriage Act of 1996, 21, 36 n.6 Delaware River Basin Compact, 60, 72, 88–93, 211 Delaware River Joint Toll Bridge Commission v. Colburn, 51, 65 n.59 Delegated powers, 8 Derthick, Martha, 62, 67 n.109 Dimock, Marshall E., 205, 219 n.3 Diversity of state laws problem, 12 Divorce proceedings, 22–23 Doctrine of estoppel, 22 Doctrine of implied powers, 9 Doig, Jameson W., 81, 133 nn.27, 37 Dormant commerce clause, 30, 48 Dowd, Alice M., 105, 219 n.2 Dresden Interstate School District, 85– 87, 208 Driver License Compact, 155–57, 173, 186 Due process of law, 9, 22, 24, 26, 54

251

Dukakis, Michael S., 83 Duryea, Christopher J., 154, 162 n.31 Eastland, James O., 90 Education agreements, 174–75 Education Commission of the States, 83–84 Education compact, 56 Eighteenth Amendment, 10 Elastic clause, 9 Elazar, Daniel J., 217, 220 n.55 Electronic purchasing and information, 189 Eleventh Amendment, 34, 51–53 Emall, 189 Emergency assistance agreements, 175– 76 Emergency Management Assistance Compact, 56, 65 n.45, 152–54, 160 Energy compacts, 56, 101–3 Enumerated powers, 10 Environmental agreements, 176–77 Equal protection of the law, 9, 26–27 Erickson, Jim, 99 Ex officio members, 16 Ex post facto law, 8 E-Z Pass, 76, 166, 187–88 Facilities compacts, 56 Farrand, Max, 35 Featherstone, Jeffrey P., 92–93, 135 nn.84–86 Federal Bureau of Investigation, 61, 170, 172 Federal-interstate compacts, 59–60, 88– 93 Federalism theory, 217–18 Federalist Papers, 8, 17 n.12, 35 n.2, 63 n.1 Federation of Tax Administrators, 110, 191 Field, Bradley, 113–14, 139 n.176 Fifteenth Amendment, 9–10 Fifth Amendment, 52, 54 Filmer, Michael J., 202 n.140 Fisheries agreements, 177–79 Fisheries compacts, 56–57, 103–6 Fisheries councils, 178–79

252

INDEX

Fite, Emerson D., 196 n.14 Flood control compacts, 57, 94–95 Florida v. Georgia, 48, 64 n.35 Floristano, Patricia S., 55, 66 nn.75– 76, 132 nn.14–15, 208, 210, 220 nn.35, 42 Formal and informal administrative agreements, 163–96 Fourteenth Amendment, 9–10, 24, 26, 184 Frankfurter, Felix, 23, 36 nn.16–17, 41, 59, 63 nn.4, 10, 14, 66 nn.74, 88, 94, 134 n.67, 204–5, 219 n.1 Franklin, Andrew W., 100, 137 nn.111–13 Friedman, Paul L., 99 Full faith and credit, 19–24; congressional clarification, 20–21; divorce proceedings, 22–23; interstate child support, 24, 35; Supreme Court clarification, 21–22 Gallagher, Hubert R., 215, 220 nn.48– 49, 51 Georgetown v. Alexander Canal Company, 54, 65 n.73 Giuliani, Rudolph W., 81, 126, 177, 211 Government Without Boundaries, 189 Grasso controversy, 144–46 Graves, W. Brook, 16 n.3 Great Lakes Fisheries Compact, 103 Green v. Biddle, 48, 64 n.33 Greenbaum, Kenneth, 134 nn.58, 62 Grodzins, Morton, 217, 220 n.55 Hamilton, Alexander, 8 Hatch Act of 1887, 12 Health compacts, 57 Heydecker, Wayne D., 74 Hill, Jeffrey S., 87, 208, 220 n.36 Hinderlider v. La Plata River and Cherry Creek Ditch Company, 51, 65 n.58 Holtzman, Elizabeth, 53, 77, 81 Home rule, 10 Hoover, Herbert, 119

Hotel and Motel Fire Safety Act of 1990, 15, 18 n.37 Hoy, John C., 83, 134 n.47 Hughes, Charles E., 50, 65 n.50 Hunt, Gaillard, 17 n.10 Hunt, W.P., 120 Huntley, John, 197 n.26 I-95 Coalition, 188–89 Imperium in Imperio, 1 Improved interstate cooperation, 214– 17 Indian Gaming Regulatory Act of 1988, 67 n.101 Indian Tribe–State Gaming Compact, 61 Informal administrative agreements, 173–74 Insurance regulation, 184–85 International Board of Inquiry for the Great Lakes Fisheries, 47, 64 nn.28– 29, 103, 137 n.124 International Fuel Agreement, 165, 190–92 International Registration Plan, 164– 65, 191–93 Interstate administrative agreements, 163–202 Interstate Agreement on Detainers, 56, 66 n.82, 144–46, 210 Interstate citizenship, 35 Interstate comity, 1–15, 19–20 Interstate commerce, 27, 30 Interstate Commerce Act of 1887, 11 Interstate Commission on Crime, 43 Interstate Compact for Juveniles, 148– 49 Interstate Compact for Supervision of Parolees and Probationers, 159–60, 211 Interstate Compact on Mental Health, 158–59 Interstate Compact on Mentally Disordered Offenders, 151 Interstate Compact on Placement of Children, 146–48 Interstate compacts, 2, 11–12, 30, 39– 67; with commissions, 69–132; with-

INDEX out commissions, 143–62, 204–12; negotiations and ratification, 42–47; types, 54–61 Interstate Environmental Compact, 69– 70, 72, 74, 122–26, 212 Interstate Identification Index, 61, 171– 172 Interstate Pest Control Compact, 114– 15, 179–80 Interstate rendition, 24, 32–33, 35 Interstate Sanitation Compact, 72, 74, 122–26 Interstate school districts, 84–88 Interstate suits, 33–35 Jay, John, 8 Johnson, Lyndon B., 55 Jones, George H., 133 n.42 Juveniles, 148–49 Kaul, N.G., 92, 94, 135 nn.83, 90, 127, 141 n.234 Keeler, James M., 148, 161 nn.13, 15 King, John, 194 Kuffner, Charles, 145 Landis, James M., 41, 59, 63 nn.4, 10, 14, 66 nn.74, 84, 94, 134 n.67, 204– 5, 219 n.1 Laski, Harold J., 205, 209, 219 n.6 Lawrence, Sharon, 17 n.15 Leach, Richard H., 70–71, 73–75, 113, 128, 132 nn.1, 5, 8, 133 n.42, 139 nn.168, 170–71, 141 n.237, 206, 219 nn.12–15 Leahy, Patrick, 97, 99 Legal equality of states, 24–26 Lehman, Herbert H., 46 Lewin, Tamar, 17 n.20 Library agreements, 175 Licensing agreements, 174–75 Long-arm statute, 24 Lotteries, 194 Lotto South, 194 Louisville Bridge Company v. United States, 54, 65 n.70 Low-level radioactive waste compacts, 57, 106–9, 212

253

Low-Level Radioactive Waste Policy Act of 1980, 43, 64 n.19, 65 n.49, 133 n.20 Mackey, Charles C., Jr., 198 n.53 Madison, James, 6, 8, 20, 39 MAGLOCLEN. See Middle Atlantic Great Lakes Organized Crime Law Enforcement Network Magnuson-Stevens Act of 1976, 105, 178, 199 n.72 Maluk, Steven, 200 nn.99, 104 Marketing and development compacts, 57 Marshall, John, 47–48, 64 n.32 Martin, Roscoe C., 47, 64 n.31, 135 n.73 Massachusetts v. Missouri, 34, 37 n.6 Maxwell Graduate School, Syracuse University, 90 McCarran-Ferguson Act, 184, 200 n.96 McCormick, Zachary L., 121, 140 nn.196, 204 McCray, Sandra B., 200 n.98 McCulloch v. Maryland, 9, 17 n.13 McLaughlin, Gerald T., 17 n.18 Mental health, 158–59 Merrimack River Anadromous Fish Restoration Program, 97, 178–79 Metro-Four, 176 Metropolitan problems compact, 57 Meyner, Robert B., 77 Mid-Atlantic Fisheries Council, 178 Mid-Atlantic Regional Air Pollution Task Force, 176 Middle Atlantic Great Lakes Organized Crime Law Enforcement Network (MAGLOCLEN), 169, 171 Midwestern Higher Education Commission, 82 Military compact, 57 Milk Industry Foundation, 99 Miller, Dianne, 161 n.16 Mineta, Norman Y., 105 Minimum alcoholic beverages purchase age, 13 Mississippi River Commission, 61–62

254

INDEX

Missouri v. Illinois, 33, 37 n.55 Morse, Wayne, 82 Motor Carrier Act of 1991, 165, 191, 196 nn.8–9 Motor vehicle compacts, 57, 154–59 Mruczek, Edward, 162 n.42 Multi-State Powerball Lottery, 194 Multi-State Tax Compact, 109–10 Mungari, Robert J., 139 n.181, 199 n.79 Munger, Frank J., 135 n.73 Murphy, Blakely M., 66 n.90 Mutual aid compacts, 31 Muys, Jerome C., 92, 135 n.82 National Association of Attorneys General, 168 National Association of Insurance Commissioners, 2, 184–85 National Association of State Information Resources Executives, 189 National Conference of Commissioners on Uniform State Laws, 11–12, 24, 106 National Conference of State Legislatures, 43, 191, 193 National Driver Register, 13–14, 17 n.29 National Governors’ Association, 106, 193 National Traffic and Motor Vehicle Safety Act of 1966, 10, 17 n.16 Natural resources compacts, 57 Nawrot, Richard, 198 n.43 Netzer, Dick, 81, 133 nn.33–36 New England Governors’ Conference, 97, 182 New England Higher Education Compact, 81–83 New England Interstate Library Compact, 111 New England Staff for Coordinated Air Use Management, 176–77, 182 New England State Police Administrators Conference, 169 New England Water Pollution Control Compact, 126–27, 182

New Hampshire–Vermont Interstate Solid Waste Compact, 115–17, 211 New York–New Jersey Port Development Commission, 79 New York State Attorney General’s Organized Task Force, 173–74 New York State Dairy Foods, Incorporated, 99 New York State Department of Environmental Conservation, 124–26 New York State Department of Health, 125 New York State Legislative Commission on Expenditure Review, 124–26 Nineteenth Amendment, 9 Noncompact regional agencies, 61–62 Nonpolitical compacts, 50 Nonresident Violator Compact, 157– 58 Norris, George, 62 Northeast Advanced Vehicle Consortium, 177 Northeast Dairy Compact, 58, 97–101, 211 Northeast Recycling Council, 181 Northeast Waste Management Officials’ Association, 182 Northeastern Interstate Forest Fire Compact, 131, 175 Northeastern States for Coordinated Air Use Management, 176 Northern Forest Lands Council, 130– 31 Northwest Ordinance, 4 Northwestern States Portland Cement Company v. Minnesota, 59, 66 n.93, 109, 138 n.149 Ohio River Valley Water Sanitation Compact, 128 Oil and Gas Compact, 112–13 Olsen, Darryll, 66 n.98 O’Neil, Daniel P., 139 nn.188–89 Opt-out provision, 14, 194 Original jurisdiction, 33 Orr, Kay, 52 Ozone Transport Commission, 15, 176– 77, 218

INDEX Pacific Northwest Council, 129–30 Pappert, Gerald, 197 n.24 Parks and recreation compacts, 58 Parole and probation, 159–60 Pataki, George E., 76, 81, 126, 145– 46, 166 Pennsylvania v. New Jersey, 34, 37 n.58 Pennsylvania v. Wheeling and Belmont Bridge Company, 53, 65 n.69 Personal appearance doctrine, 23 Pest Control Compact, 114–15 Pitcher, Robert C., 192, 201 nn.123, 138 Placement of children, 146–48 Plant pest agreements, 114–15, 179– 80 Police power, 10 Political compacts, 48 Poltak, Ronald F., 127, 141 nn.232– 33 Port Authority Trans-Hudson Corporation, 51, 75 Port of London Authority, 79 Port of New York Authority Compact, 42, 44–45, 50, 55, 57, 70, 72–73, 75–81, 187, 204, 206, 209, 211–12 Potomac River Basin Compact, 129 Potomac River Fisheries Compact, 103– 4, 209 Preemption, ix, 10–11, 30, 55, 74, 101, 184, 209, 211, 214, 216–18 Privileges and immunities, 9, 26–29; beneficial services, 27; corporations, 27; political and other privileges, 29, 35; taxation, 27 Public Authorities Control Board, 210 Puerto Rico v. Branstad, 33, 37 n.54 Quad State Project, 160 Quasi-interstate compacts, 129–31 Quinlin, George B., 198 nn.49–52 Randolph, Edmund, 7 Recall election, 25, 36 n.26 Reciprocity, 19–20 Regional Continuing Committee on Rabies Control, 167

255

Regional criminal intelligence program, 169–71 Regional Dairy Quality Management Alliance, 167 Regional information sharing system, 169–70 Regional Organized Crime Information Center, 169 Regional plant pest boards, 180 Regulatory compacts, 58 Removal of Causes Act of 1920, 52, 65 n.66 Reserved powers, 10, 25 Residual powers, 10 Ridgeway, Marian E., 76, 132 n.13, 207, 209, 219 nn.21–25 Rinaldi, Thomas, 138 nn.161–62, 164 Riparian rights, 119 Rivendell Interstate School District, 87– 88, 208 River basin compacts, 58 Rockefeller, Nelson A., 55, 77 Rocky Mountain Information Network, 169 Roosevelt, Franklin D., 51, 80, 133 n.32 Routt, Garland C., 205, 212, 219 n.5, 220 n.45 Sanford, Terry, 84 Schaefer, William D., 165 Schengen Information System, 169 Scott, James A., 37 n.50 Sealy, Frank, 145 Selznick, Philip, 67 n.107 Service compact, 58 Shaw, David J., 198 nn.65, 70 Sherman Anti-Trust Act of 1890, 11 Sieminski, Alfred, 77 Sixteenth Amendment, 9–10 Smith, Daniel J., 64, 136 n.101 Snowe, Olympia J., 97, 136 n.96 Solid Waste Compact, 115–17 Sossello, Pedro, 166 South Dakota v. Dole, 17 n.26 Southeastern States Air Resources Managers, 176

256

INDEX

Southern Regional Education Compact, 49, 82, 207 Southern States Energy Compact, 101– 2 Streamlined Sales and Use Tax Agreement, 190, 193–94 Sugg, Redding S., Jr., 70–71, 73, 128, 132 nn.1, 5, 8, 141 n.237, 206, 219 nn.12–15 Sunset provisions, 50 Supremacy of the laws clause, 10 Susquehanna River Basin Compact, 60, 93–94, 209 Taft, William H., 25–26 Taney, Roger, 39 Tax compacts, 59 Tax exportation, 3 Taxation, 189–94 Tennessee Valley Authority, 62 Tenth Amendment, 25 Thirteenth Amendment, 9 Thursby, Vincent V., 206, 219 nn.10– 11 Tobacco Control Act of 1936, 49, 64 n.41 Tobin, Austin, 77–78 Tobin v. United States, 50, 65 n.54 Transportation agreements, 185–89 Tri-State Megabucks Lottery, 194 Tri-State Regional Planning Compact, 212 Tri-State Treaty Commission, 122–23 Twenty-first Amendment, 10 Twenty-fourth Amendment, 9 Twenty-sixth Amendment, 9–10 Twenty-third Amendment, 9 Udall, Stewart L., 90–91 Uniform Commercial Code, 11 Uniform Exchange of Information Agreement, 191 Uniform laws, 11–15; congressional promotion, 12–15, 41 Uniform Reciprocal Enforcement of Support Act, 24 Unitary system, 4, 7 United States Steel Corporation v.

Multistate Tax Commission, 109, 138 n.150 Upper Colorado River Basin Compact, 120–21 U.S. Advisory Commission on Intergovernmental Relations, 3, 16 nn.6– 7, 17 n.14 U.S. Environmental Protection Agency, 15, 121–22, 127, 131, 166, 176–77, 182, 212 U.S. General Accounting Office, 100– 101, 107, 121, 137 n.114, 138 nn.144–46, 140 nn.205–7, 170, 185, 197 n.37, 200 nn.105–8 U.S. General Services Administration, 189 U.S. Secretary of Agriculture, 98, 130 U.S. Secretary of Commerce, 178 U.S. Secretary of the Interior, 120–21, 129 Valenti, Lynda, 162 n.44 Vehicle Equipment Safety Interstate Compact, 10 Vinson, Fred M., 27, 36 n.30 Virginia v. Tennessee, 31, 37 n.47, 48, 63 n.3, 64 nn.36–37 Voit, William, Jr., 93, 135 n.88 Wald, Matthew L., 18 n.39 Walters, David, 145 Washington, Bushrod, 26 Waste materials, 181–82 Water compacts, 118–29 Water Treaty of 1944, 140 n.199 Waterfront Compact, 117–18, 210 Weeks Act, 41, 64 n.40, 111 Weissert, Carol S., 66, 208, 220 n.36 Welch, Susan, 207, 219 n.26 Welfare fraud, 172–73 Wendell, Mitchell, 43, 45, 47, 50–51, 64 nn.17–18, 22, 25, 30, 65 n.55, 139 n.191, 205–6, 207–8, 214, 219 nn.7, 27–29, 220 nn.30–34 West Lynn Creamery Incorporated v. Healy, 97, 136 n.97 Western Interstate Compact on Higher Education, 82

INDEX Western Interstate Energy Compact, 102–3 Western States Air Resources, 176 Western States Information Network, 169 Whitman, Christine, 76 Winders, Edward E., 209–10, 220 nn.40–41 Writ of habeas corpus, 8 Wyoming v. Colorado, 119, 140 n.197 Yaro, Robert, 81 Youngdahl, Luther, 78

257

Zimmerman, Joseph F., 16 nn.1, 2, 5, 17 nn.14–15, 36 n.26, 66 n.77, 132 n.7, 134 n.55, 140 nn.202, 216, 196 nn.1, 4, 197 n.28 Zimmerman, William G., 85–86, 134 nn.53, 56 Zimmermann, Erich W., 113, 139 n.172 Zimmermann, Frederick L., 43, 45, 47, 50–51, 64 nn.17–18, 22, 25, 30, 65 n.55, 139 n.191, 205–6, 207–8, 214, 219 nn.7, 27–29, 220 nn.30– 34

About the Author JOSEPH F. ZIMMERMAN is Professor of Political Science in the Rockefeller College of the State University of New York at Albany. He is the author or editor of more than 25 books, including The Referendum: The People Decide Public Policy (Praeger, 2001), The Initiative: Citizen LawMaking (Praeger, 1999), The New England Town Meeting: Democracy in Action (Praeger, 1999), and The Recall: Tribunal of the People (Praeger, 1997).