Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/44

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(Jan. 5, 1996) (“At some point, Commission funds will no longer be available to North Carolina . . ., and North Carolina will need to make alternate plans . . .”)); id., at 75 (Press Release by James G. Martin, Governor of North Carolina (Nov. 8, 1989) (“ ‘The task of siting and operating a low-level radioactive waste disposal facility is a com­mitment the state of North Carolina has made and one which I am personally committed to keeping’ ”)); id., at 92 (Letter from Governor of North Carolina, to Governor of South Carolina (“North Carolina remains committed to fulfilling its obligations to the Compact to serve as the next host state”); id., at 183 (Letter from James B. Hunt, Jr., Governor of North Carolina, to David M. Beasley, Governor of South Carolina (Mar. 14, 1995) (“Let me assure you that North Carolina is committed to honoring its obligation to the Compact”)); Statement of Undisputed Material Facts ¶¶28, 33, 39 (other public statements about North Carolina’s commitment to building a facility).

Without better evidence of a reallocation of funding responsibility, I can only conclude that North Carolina remained under an obligation to “take appropriate steps” at all times relevant to this case. And North Carolina admittedly took no steps towards building a disposal facil­ity from December 1997 and July 1999: It did no in-depth study of the further financing that might be necessary; it made no serious effort to look for alternative funding; the Executive of the State did not ask its legislature for any appropriation. Rather, North Carolina simply withdrew from the Compact. Ante, at 5.

Of course, North Carolina was free to withdraw from the Compact. Art. 7(G), 99 Stat. 1879–1880. But that fact does not repair what, in my view, was a breach of a key contractual provision. See Franconia Associates v. United States, 536 U. S. 129, 142–143 (2002) (“Failure by the promisor to perform . . . establishes an immediate breach”); Restatement (Second) of Contracts §235(2) (1979) (“When