DC DC-OAG-2017-06-19-Opinion-June-26-2017-Metrorail-Safety 2017-06-19

Did DC need a technical-amendment act before the Mayor could sign the Washington Metrorail Safety Commission Interstate Compact, given that the DC, Maryland, and Virginia enabling statutes had small wording differences?

Short answer: No. Interstate compacts are valid when member-state enabling statutes are substantially similar, even if not word-for-word identical. The 28 small variances among the DC, Maryland, and Virginia versions (numbering schemes, citation formats, minor grammar) were technical, not substantive. The Mayor had authority under D.C. Law 21-250 to execute the Compact once Congress consented under the Compact Clause, with no further Council action needed.

Disclaimer: This is an official DC Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed DC attorney for advice on your specific situation.

Plain-English summary

After a series of Metrorail safety failures (most notably the 2009 Fort Totten collision and the 2015 L'Enfant Plaza smoke incident), Congress amended 49 U.S.C. § 5329 to require legally and financially independent state safety oversight authorities for fixed-rail transit systems. For multi-jurisdictional systems like WMATA, the participating jurisdictions had to create a multi-state oversight entity by interstate compact.

DC, Maryland, and Virginia each enacted enabling legislation in 2016-2017 to create the Washington Metrorail Safety Commission (WMSC). The three enabling acts were substantially similar but had 28 small wording variances: Virginia renumbered the paragraph-by-paragraph compact text into Virginia-Code-style lettered subsections; Maryland and DC kept the original numbered structure; some citation formats differed; minor grammar and spelling differences crept in. Council Chairman Mendelson asked whether DC needed a technical-amendment act to align with the other states before the Mayor could sign the Compact.

Attorney General Karl Racine concluded no. Interstate compacts are both statutes and contracts. As statutes, they bind member states; as contracts, they create reciprocal obligations. Compact law has long recognized that exact textual identity is not required. The "substantial similarity" standard governs: do all states agree on the essential terms? Here the answer was clearly yes. The rights, responsibilities, duties, and obligations for the WMSC were materially the same in all three enabling acts, and were also substantially the same as the consent legislation pending in Congress (H.J. Res. 76 and S.J. Res. 22). Each enabling act expressly anticipated non-identical language ("substantially as follows"). The Attorneys General of Virginia and Maryland concurred in writing.

So the Mayor had authority under D.C. Law 21-250 to sign the Compact once Congress consented, with no further Council action needed.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Congress consented to the WMSC Compact in late 2017 (Pub. L. 115-78). The WMSC has been operating since 2018 and has issued numerous safety directives. If a future jurisdiction-by-jurisdiction issue arose, the substantial-similarity framework discussed here would still apply.

Historical context

The WMSC was the response to a structural failure. Before 2018, WMATA safety oversight ran through the Tri-State Oversight Committee, a body without independent rulemaking or enforcement authority. The 2015 L'Enfant Plaza incident (in which one passenger died and 84 were hospitalized after a smoke event in the tunnel) and the FTA's subsequent direct-takeover of WMATA safety oversight pushed Congress to require a more independent state-level safety regulator. Section 5329 of Title 49 became the statutory hook.

The compact-formation process tested the limits of multi-jurisdictional cooperation. Each state had its own legislative drafting conventions, code structure, and political timing. Maryland passed its enabling act in March 2017; Virginia passed in March 2017; DC enacted in April 2017. Congressional consent followed in November 2017. The WMSC began full operations in March 2018.

The opinion is also a clean example of compact-formation practice. Compact lawyers had been arguing for years that the substantial-similarity standard should govern, citing Buenger and others. The 2017 DC AG opinion adopted that standard explicitly and put it in formal-opinion form, providing a useful precedent for future multi-state compact work.

What this meant at the time for the WMSC formation

The Mayor could sign the Compact as soon as Congress consented. No DC technical-amendment act was needed.

What this meant for WMATA riders

The WMSC could begin work as soon as it was constituted, without months of additional state-level legislative housekeeping.

What this meant for compact-formation practice

The opinion is now-cited authority for the proposition that compact texts need not be identical, only substantially similar.

Common questions

Q: What is the Compact Clause?
A: Article I, § 10, cl. 3 of the U.S. Constitution requires congressional consent for compacts between states. The WMSC Compact required consent from both houses of Congress (provided through H.J. Res. 76 / S.J. Res. 22, eventually enacted as Pub. L. 115-78).

Q: How different can compact texts be before they are not "substantially similar"?
A: Compact scholarship (Buenger et al., The Evolving Law and Use of Interstate Compacts) treats variances as substantial when they "constitute a material change to the terms of the compact." Renumbering for code-fit, citation format differences, and minor grammar are technical. Differences in operative rights, obligations, or definitions would be substantive.

Q: What does the WMSC do?
A: It is the State Safety Oversight Authority for the WMATA Metrorail system, with authority to investigate accidents, audit safety practices, mandate corrective actions, and assess civil penalties.

Q: Could the District have entered the Compact without a Council enabling act?
A: No. The Compact required state legislative authorization. The opinion just addresses whether additional Council action was needed beyond the existing D.C. Law 21-250.

Citations

Federal statutes
- 49 U.S.C. § 5329 (federal state safety oversight requirement)
- U.S. Const. art. I, § 10, cl. 3 (Compact Clause)
- H.J. Res. 76, 115th Cong. (introduced Feb. 16, 2017)
- S.J. Res. 22, 115th Cong. (introduced Feb. 15, 2017)

State enabling acts
- DC: Washington Metrorail Safety Commission Establishment Act of 2016, D.C. Law 21-250
- Maryland: 2017 Md. Laws 38
- Virginia: 2017 Va. Acts ch. 705 (Va. Code § 33.2-3101)

Cases
- Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013) (interstate compacts construed as contracts)
- In re Alexis O., 959 A.2d 176 (N.H. 2008) (compacts as substantively mirroring laws)

Source

License

This opinion is published by the Office of the Attorney General for the
District of Columbia. Per the DC.gov terms of use, content is licensed
under Creative Commons Attribution 3.0,
which permits commercial use, redistribution, and modification with
attribution.

Original opinion text

GOVERNMENT OF THE DISTRICT OF COLUMBIA
Office of the Attorney General

Attorney General x* *
Karl A. Racine || =|

ar
June 19, 2017

OPINION OF THE ATTORNEY GENERAL

SUBJECT: Is Further Legislative Action Required by the District to Authorize the
Mayor to Enter into the Washington Metrorail Safety Commission Interstate
Compact with Maryland and Virginia?

The Honorable Phil Mendelson

Chairman, Council of the District of Columbia
John A. Wilson Building

1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Dear Chairman Mendelson:

This opinion is issued pursuant to section 101(a)(2) of the Attorney General for the District of
Columbia Clarification and Elected Term Amendment Act of 2010, effective May 27, 2010
(D.C. Law 18-160; D.C. Official Code § 1-301.81(a)(2)) (2012 Repl.)' and Reorganization Order
50 of 1953, as amended, and addresses your request for legal advice about whether the
differences in the text of the enabling statutes of the District of Columbia, the Commonwealth of
Virginia, and the State of Maryland require the District take additional legislative action before
the Mayor may, on behalf of the District, enter into the Washington Metrorail Safety
Commission Interstate Compact (MSC) with Maryland and Virginia.

CONCLUSION

There is no requirement that the enabling statutes of the District, Virginia, and Maryland use
identical language in enacting the MSC. It is well established that non-substantial differences in
the text of an interstate compact’s enabling statutes do not prevent the formation or enforcement
of the interstate compact. The texts of all three jurisdictions’ enabling statutes, as well as the text
introduced by resolution in both the Senate and House of Representatives, are substantially
similar. As such, there is no need for the District of Columbia Council to pass a technical
amendment act to conform District law to that of the other jurisdictions, and the Mayor has the
requisite authority to execute a compact document that is substantially similar to the text of the

“The Attorney General shall furnish opinions in writing to the Mayor and the Council whenever requested to do
so.”

441 Fourth Street, NW, Suite 1100S, Washington, D.C. 20001, (202) 727-3400, Fax (202) 741-0580

Opinion of the Attorney General on Legislative Action and Entering into
Washington Metrorail Safety Commission Interstate Compact with Maryland and Virginia
June 19, 2017

Page 2

Washington Metrorail Safety Commission Establishment Act of 2016, effective April 7, 2017
(D.C. Law 21-250; 64 DCR 3971), as consented to and approved by the Congress.

BACKGROUND

Recent amendments to 49 U.S.C. § 5329 required the creation of legally and financially
independent state authorities for safety oversight of all fixed rail transit systems and facilities.
Where such rail transit systems operate in more than one jurisdiction, federal law authorizes the
neighboring jurisdictions to enter into multi-state agreements to establish a multi-state safety
oversight authority. The Washington Metropolitan Area Transit Authority’s Metrorail system is
such a multi-state fixed rail transit system.

The District, Virginia, and Maryland have acted to create a Washington Metrorail Safety
Commission to act as the state safety oversight authority for the Washington Metropolitan Area
Transit Authority system in satisfaction of the requirements of 49 U .S.C. § 5329, for the benefit
of the people of the District, Maryland, and Virginia, and for the i increase of their safety,
commerce, and prosperity. The District, * Maryland,’ and Virginia’ have enacted substantially
similar but not identical enabling statutes that authorize their Chief Executives to execute the
MSC.

ENABLING ACTS THAT HAVE SUBSTANTIALLY SIMILAR TEXTS ARE
SUFFICIENT FOR THE FORMATION AND ENFORCEMENT OF AN INTERSTATE
COMPACT

Courts and compact scholars frequently describe compacts as both statutes and contracts.° This is
so because as laws adopted by state legislatures, compacts are statutes that are as binding upon
the member states and their citizens as any other statute adopted by a state legislature. Because
those statutory enactments contain reciprocal promises and create reciprocal obligations, they are
also considered contracts between member jurisdictions. The implication of this dual character
of compacts is that courts frequently cite and apply statutory and contract law principles when
resolving the questions of law concerning the validity of a compact and interpreting a compact.°

? Washington Metrorail Safety Commission Establishment Act of 2016, effective April 7, 2017 (D.C. Law 21-250;
64 DCR 3971).

3 AN ACT concerning Washington Metropolitan Area Transit Authority — Washington Metrorail Safety
Commission — Establishment and Compact, approved March 30, 2017, 2017 Md. Laws 38.

“ An Act to amend the Code of Virginia by adding in Title 33.2 a chapter numbered 31.1, consisting of a

section numbered 33.2-3101, relating to the Washington Metrorail Safety Commission Interstate

Compact, 2017 Va. Acts Chapter 705.

° Tarrant Regional Water Dist. v. Herrmann, 133 S.Ct. 2120, 2130 (2013) (“Interstate compacts are construed as
contracts under the principles of contract law”); In re Alexis O., 959 A.2d 176, 180 (N.H. 2008)(“Interstate
compacts, like the ICPC, ‘are formal agreements among and between states that have the characteristics of both
statutory law and contractual agreements. They are enacted by state legislatures that adopt reciprocal laws that
substantively mirror one another.””) (emphasis added).

° Michael L. Buenger, Jeffery B. Litwak, Richard L. Masters, & Michael H. McCabe, The Evolving Law and Use of
Interstate Compacts, 35 (ABA Book Publishing 2016).

Opinion of the Attorney General on Legislative Action and Entering into

Washington Metrorail Safety Commission Interstate Compact with Maryland and Virginia
June 19, 2017

Page 3

Because states may not always enact identical text of a compact, questions can arise over
whether the variations in the relevant statutory enactments are sufficiently technical or non-
substantive to conclude that the jurisdictions have signaled their mutual consent in such a way
that a meeting of the minds has been reached as to the essential terms of the compact.’ The
reasons for these variances include legislative drafting differences among the states, inclusion of
state specific provisions concerning funding, and other unique implementation issues for each
state.* The guiding principle in judging the significance of any variances is whether or not they
constitute a material change to the terms of the compact.

Each of the three MSC enabling acts contains express language that provides for the use of non-
identical language.

The District’s act states:

“Sec. 2 The District of Columbia hereby consents to, adopts, and enacts the Metrorail
Safety Commission Interstate Compact, substantially as follows: ——

Virginia’s act states:

“The Washington Metrorail Safety Commission Interstate Compact is hereby enacted
into law and entered into with all other jurisdictions legally joining therein in the form
substantially as follows: >

Maryland’s act states:

“{T]hat the Commonwealth of Virginia and the District of Columbia each is requested to
concur in this Act of the General Assembly of Maryland by the enactment of a similar Act; =—_

Additionally, the versions of the MSC introduced in the both the House of Representatives and
the Senate, for the purposes of consent and approval, both authorize the three jurisdictions to

enter into a compact “substantially as follows:”’. 2

A comparison of the three MSC enabling acts clearly reveals the use of non-identical language.
In fact no two versions are identical. We turn now to an examination of the variances to
determine if all three versions of the MSC are substantially similar and then compare them

’ Buenger at 44-45,

Buenger at 46.

” 64 DCR 3971.

119017 Md. Laws 69.

2 11.J. Res. 76, Introduced 2/16/17; S.J. Res. 22, Introduced 2/15/17.

Opinion of the Attorney General on Legislative Action and Entering into

Washington Metrorail Safety Commission Interstate Compact with Maryland and Virginia
June 19, 2017

Page 4

against the versions that have been submitted to Congress to determine if they are substantially
similar to the text before Congress.

TEXTS OF ALL APPLICABLE ACTS ARE SUBSTANTIALLY SIMILAR

A close comparison of the relevant acts demonstrates that they are substantially similar. Virginia
directly enacted and codified the text of the compact into the Code of Virginia. In doing so, it
altered the numbering scheme used by the District and Maryland to fit its code. As such the
numbered paragraphs of the compact were changed to capital letter designations. This change is
entirely technical and makes no substantive change to the language of the compact.
Additionally, the attached chart!? tracks 28 instances where there are variances among versions
of the compact language contained in the three enabling acts. The changes include grammar
changes, citations changes, and minor spelling corrections. None of these changes make any
material or substantive change to the operative language of the compact. The rights,
responsibilities, duties, and obligations for the MSC are materially the same in all three enabling
acts and provide clear evidence of what terms the three jurisdictions intended to enact and by
what terms they intend to be bound.

Turning to the versions of the MSC introduced in Congress, a comparison of H.J. Res. 76 with
S.J. Res. 22 reveals slight drafting differences. The House version includes references to the
D.C. Official Code in its citations while the Senate version omits these references. The Senate
version cites 49 U.S.C. § 5329 as “section 5329 of title 49, United States Code.” None of these
changes make any material or substantive change to the operative language of the compact. All
three jurisdictions and both versions before the houses of Congress contain a MSC that consists
of a preamble, five Articles and 61 numbered (or lettered) paragraphs. No version contains any
extra provision that materially alters the terms of the MSC.

UPON CONSENT AND APPROVAL OF CONGRESS, THE MAYOR HAS THE
AUTHORITY TO EXECUTE THE COMPACT ON BEHALF OF THE DISTRICT

Paragraph 59 of the MSC states in part:

This MSC Compact shall become effective upon the enactment of concurring legislation
by the District of Columbia, the Commonwealth of Virginia, and the State of Maryland,
and consent thereto by Congress and when all other acts or actions have been taken,
including, without limitation, the signing and execution of this MSC Compact by the
Governors of Maryland and Virginia and the Mayor of the District of Columbia.

Having concluded that the versions of the MSC enacted by the District, Maryland, and Virginia
are substantially similar to each other and to the versions introduced in both houses of Congress,
I also conclude that three jurisdictions have enacted concurring legislation and, that following

8 Information contained in the chart was prepared by outside counsel retained by the Metropolitan Washington
Council of Governments on behalf of the District, Maryland, and Virginia to assist with the formation of the MSC.

Opinion of the Attorney General on Legislative Action and Entering into

Washington Metrorail Safety Commission Interstate Compact with Maryland and Virginia
June 19, 2017

Page 5

passage of the pending Congressional resolutions providing approval and consent to the MSC,
the Mayor of the District of Columbia will be empowered to execute the MSC.

This Office has also consulted with the offices of Attorneys General of Virginia and Maryland,
both of whom agree that no further legislative action is needed to modify any of the three MSC
enabling acts.’

For the foregoing reasons, it is the opinion of this Office that no further legislative action is
required by the District to authorize the Mayor to enter into the MSC with Maryland and
Virginia.

Sincerely,

Karl A. Racine
Attorney General for the District of Columbia

Attachments:

1, Washington Metrorail Safety Commission Establishment Act of 2016 (District of
Columbia);

AN ACT concerning Washington Metropolitan Area Transit Authority — Washington
Metrorail Safety Commission — Establishment and Compact (State of Maryland);
An Act to amend the Code of Virginia by adding in Title 33.2 a chapter numbered 31.1,
consisting of a section numbered 33.2-3101, relating to the Washington Metrorail Safety
Commission Interstate Compact (Commonwealth of Virginia);
House Joint Resolution 76 — 115" Congress, Introduced 2/16/17;
Senate Joint Resolution 22 -115™" Congress, Introduced 2/15/17;
Comparison Chart - VARIANCES AMONG THE TEXTS OF THE MSC ENABLING
ACTS;
June 6, 2017 Letter of Concurrence from Cynthia Hudson, Chief Deputy Attorney
General for the Commonwealth of Virginia ; and
June 15, 2017 Letter of Concurrence from Elizabeth Harris, Chief Deputy Attorney
General for the State of Maryland.

4 See June 6, 2017 Letter of Concurrence from Cynthia Hudson, Chief Deputy Attorney General for the
Commonwealth of Virginia; and June 15, 2017 Letter of Concurrence from Elizabeth Harris, Chief Deputy Attorney
General for the State of Maryland.