Earlier this week, the Third Circuit held in Delaware River
Joint Toll Bridge Commission v. Secretary Pennsylvania Department
of Labor and Industry that Pennsylvania ceded its authority to
enforce its building code and safety regulations against the
operator of a transportation facility, the Delaware River Joint
Toll Bridge Commission ("Commission"). The Commission is
a bi-state entity created by an interstate compact between
Pennsylvania and New Jersey ("Compact") and approved by
Congress under the Constitution's Compact Clause.
The case highlights at least two key issues. First, the right to
enforce the state's building codes, the right to inspect the
work, and the right to enjoin the construction based upon the lack
of a building permit or perceived violations may be waived even
without an explicit waiver of those rights in the entity or
commission's organizational document. Second, despite the broad
interpretation of a state's Eleventh Amendment immunity,
