In Alabama v. North Carolina, 560 U.S. 330 (2010), eight states including Alabama and North Carolina entered into the Southeast Interstate Low--Level Radioactive Waste Management Compact, which provided for the development of a new facility for the long-term disposal of low-level radioactive waste generated in the region. 560 U.S. at 334.
The Compact was administered by a Commission composed of two voting members from each party State. Id. North Carolina was designated to "host" the new facility, and thus became obligated by the compact to "take appropriate steps" to obtain a license to construct and operate the contemplated facility. Id. at 335.
Although the compact specifically provided that the Commission was not responsible for any costs associated with creating the new facility, North Carolina "asked the Commission for financial assistance with building and licensing costs." Alabama, 560 U.S. at 335.
"The Commission responded by adopting a resolution, which declared it was both 'appropriate and necessary' for the Commission 'to provide financial assistance' to North Carolina." Id. (quoting record). Thereafter, the Commission provided North Carolina with approximately $80 million in financial assistance towards obtaining licensing. Id. at 336-37.
After South Carolina withdrew from the agreement, and North Carolina and the Commission reached an impasse concerning a long-term financing plan, North Carolina "informed the Commission it would commence an orderly shutdown of its licensing project." Id.
Several party States, joined by the Commission, filed a complaint against North Carolina alleging, among other things, that North Carolina had breached the compact because it was no longer taking "appropriate steps" to obtain licensing. Alabama, 560 U.S. at 338, 345.
After concluding that the compact term "appropriate steps" was ambiguous, the Court looked to the parties' course of performance to ascertain its meaning: "In determining whether, in terminating its efforts to obtain a license, North Carolina failed to take what the parties considered 'appropriate' steps, the parties' course of performance under the Compact is highly significant." Id. at 346.
Such evidence "firmly establishes that North Carolina was not expected to go it alone .... The history of the Compact consists entirely of shared financial burdens." Id.
There is nothing to support the proposition that the other States had an obligation under the Compact to share the licensing costs through the Commission; but we doubt that they did so out of love for the Tarheel State. They did it, we think, because that was their understanding of how the Compact was supposed to work. One must take the Commission at its word, that it was "appropriate" to share the cost--which suggests that it would not have been appropriate to make North Carolina proceed on its own. Id.