Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/41

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App. 315. In response, North Carolina concluded that it was unwilling to fund the rest of the project itself. See id., at 317–319. And the Court agrees that it would have been “imprudent” for North Carolina to spend further funds, in light of the Commission’s refusal to do so also. Ante, at 15–16.

But this is an odd excuse. If a builder promises to “take appropriate steps” to build me a house, the fact that he runs out of funds would not normally excuse his breaking his promise—at least if it is he, and not I, who is responsi­ble for financing the project. See 2 E. Farnsworth, Con­tracts §9.6, p. 638 (3d ed. 2004) (Farnsworth) (courts “generally” conclude that “additional expense” “does not rise to the level of impracticability” so as to excuse a party from performance). And here it is North Carolina, and not anyone else, who bears ultimate responsibility for finding the funds.

The text, structure, and purpose of the Compact all demonstrate this fact. As the Court recognizes, ante, at 2, the Compact expressly provides that the Commission “is not responsible for any costs associated with. . . the crea­tion of any facility,” Art. 4(K)(1), 99 Stat. 1876. Rather, the Compact States determined that each “party state” should take a turn as the “host state,” during which time that State would be obligated to build a facility and then operate it for 20 years. See Art. 3(A), id., at 1873; Art. 5(A), id., at 1877; Art. 5(C), ibid.; Art. 5(E), 103 Stat. 1289; see also Art. 3(C), 99 Stat. 1873–1874 (“Host states are responsible for the availability, the subsequent post­ closure observation and maintenance, and the extended institutional control of their regional facilities”). The host State would then recover its upfront construction expenses from the considerable fees and surcharges charged to the waste generators served by the facility. N. C. Gen. Stat. §§104G–15(a)–(b) (repealed 2000) (“It is the intent of the General Assembly that the cost of all activities [toward