Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/14

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Because the Compact does not authorize the Commis­sion to impose monetary sanctions, Plaintiffs’ second exception—that North Carolina could not avoid monetary sanctions by withdrawing from the Compact—is moot. The third exception also pertains to the Commission’s sanctions resolution: that North Carolina forfeited its right to object to a monetary penalty by failing to partici­pate at the sanctions hearing. Plaintiffs have failed to argue this exception. They have merely noted that North Carolina refused to participate at the sanctions hearing, and have cited no law in support of the proposition that this was a forfeit. We deem the exception abandoned. It was wisely abandoned, because it is meritless. North Carolina opposed the sanctions resolution and denied that the Commission had jurisdiction to impose sanctions against it.

Plaintiffs next take exception to the Special Master’s recommendation that no binding effect or even deference be accorded to the Commission’s conclusion that North Carolina violated Article 5(C) of the Compact. We are bound by the Commission’s conclusion of breach only if there is “an explicit provision or other clear indicatio[n]” in the Compact making the Commission the “sole arbiter of disputes” regarding a party State’s compliance with the Compact. Id., at 569–570. Plaintiffs assert there is such a provision, the second sentence of Article 7(C), which states: “The Commission is the judge of the qualifications of the party [S]tates and of its members and of their com­pliance with the conditions and requirements of this com­pact and the laws of the party [S]tates relating to the enactment of this compact.” 99 Stat. 1879.

Plaintiffs greatly overread this provision. The limited nature of the authority to “judge” that it confers upon the