Anthony McLeod Kennedy

“ The Special Master assumed for the sake of argument that a State possesses sovereign immunity against a claim brought by an entity, like the Commission, created by an interstate compact, [5] Preliminary Report 5. But he recommended denying North Carolina's motion to dismiss "at this point in the proceedings." Ibid.
The Special Master relied upon our decision in Arizona v. California, 460 U. S. 605 (1983) , which held that the Eleventh Amendment did not bar the participation of several Indian Tribes in an original action concerning the allocation of rights to the waters of the Colorado River. ”

“ The Commission can claim restitution as the party that paid the money to North Carolina; the other plaintiffs cannot claim it on that basis. Whether this means that the claims are not identical for Arizona v. California pur­poses, and that the Commission’s Counts III–V claims must be dismissed on sovereign immunity grounds, is a question that the Special Master declined to resolve until the merits issues were further clarified. ”

“ At that point, in their view, North Carolina was no longer “tak [ing] appropriate steps to ensure that an application for a license to construct and operate a [low-level radioactive waste storage facility] is filed with and issued by the appropriate authority,” Art. 5 (C) , 99 Stat. 1877. North Carolina says that once the Commission ceased providing financial assistance on December 1, and once it became clear there was insufficient funding to complete the licensing phase, there were no more “appropriate” steps to take. ”

“ What Justice Breyer overlooks is the possibility that no one is responsible, and the licensing and construction of the facility is meant to depend upon voluntary funding by interested parties, such as the party States, the Commission, and low-level radioactive waste generators. ”

“ He could have deferred filing any report until full factual discovery had been completed and all of the legal issues, many of which are novel and challenging, had been fully briefed, considered, and decided. Instead, he concluded that our immediate resolution of Counts I and II would facilitate the efficient disposition of the case; and in agree­ing to hear exceptions to his Preliminary Report and Second Report we implicitly agreed. ”

“ That can fairly be understood to include the lesser power to suspend a party State’s rights. There is no simi­lar grounding in Article 4 (E) of authority to impose mone­tary sanctions, and the absence is significant. According to Plaintiffs, however, the word “sanctions” in Article 7 (F) naturally “includ [es] ” monetary sanctions. Since the Compact contains no definition of “sanctions,” we give the word its ordinary meaning. ”

“ That firmly establishes that North Carolina was not ex­pected to go it alone—to proceed with the very expensive licensing process without any external financial assis­tance. The history of the Compact consists entirely of shared financial burdens. From the beginning, North Carolina made clear that it required financial assistance to do the extensive work required for obtaining a license. The Commission promptly declared it was “appropriate and necessary” to assist North Carolina with the costs. ”

“ Plaintiffs present a total of seven exceptions to the Special Master’s two reports. We address them in turn.
A
Their first exception challenges the Special Master’s conclusion that the Commission lacked authority to im­pose monetary sanctions upon North Carolina. The terms of the Compact determine that question.
Article 4 (E) of the Compact sets forth the Commission’s “duties and powers.” Among its powers are the authority “ [t] o revoke the membership of a party [S] tate that will­ fully creates barriers to the siting of a needed regional facility,” Art. 4 (E) (7) , 99 Stat. ”

“ In August 1997, the Commission notified North Caro­lina that absent a plan for funding the remaining steps of the licensing phase, it would not disburse additional funds to North Carolina after November 30, 1997. North Caro­lina responded that it would not be able to continue with­out additional guarantees of external funding. On Decem­ber 1, 1997, the parties having failed to agree upon a long­-term financing plan, the Commission ceased financial assistance to North Carolina. ”

“ A repudiation occurs when an obligor either informs an obligee "that the obligor will
commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250 (a) , or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250 (b) . ”

“ We grant North Carolina’s motion to dismiss Count I. We grant North Carolina’s motion for summary judgment on Count II. We deny Plaintiffs’ motions for judgment on Counts I and II. And we deny without prejudice North Carolina’s motion to dismiss the Commission’s claims on the grounds of sover­eign immunity and its motion for summary judgment on Counts III–V.
It is so ordered. ↑ The Compact provides only that the host State is "responsible for the availability ... of their regional facilities in accordance with" Article 5 (B) . Art. ”

“ Article 5 (C) does not require North Carolina to take any and all steps to license a regional-disposal facility; only those that are “appropriate.” Plaintiffs contend that this requires North Carolina to take the steps set forth in the regulations of the Nuclear Regulatory Commission govern­ing the filing and disposition of applications for licenses to operate radioactive waste disposal facilities, 10 CFR pt. ”