A high-stakes dispute between New Jersey and Delaware with roots in the 1600s played out before the Supreme Court on Tuesday.
A slight edge in the complex case may have gone to New Jersey, and not just because two of the eight justices ruling in the case were born there: Antonin Scalia and Samuel Alito Jr.
Justices seemed concerned that Delaware was asking too much by asserting the power to veto a $600 million liquefied natural gas plant planned for the New Jersey side of the Delaware River.
Because the plan by the oil company BP includes a 2,000-foot pier extending over Delaware's underwater territory, Delaware claims it can reject the plan on environmental grounds. New Jersey claims that building a wharf or pier is part of the traditional "riparian rights" that belong to the state where the pier begins. New Jersey also claims that a 1905 compact between the two states gives it jurisdiction over what happens on its side of the river, including construction of a wharf.
A special master appointed by the high court to look into the facts and history of the dispute sided with Delaware in April, prompting New Jersey to ask the Supreme Court to hear its side of the story. The master, Ralph Lancaster of the Maine law firm Pierce Atwood, was in the Court as the lawyers and justices picked his report apart.
Both states hired leading D.C.-based Supreme Court advocates, with Bartow Farr III of Farr & Taranto arguing for New Jersey and David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel representing Delaware.
Farr argued that the compact gave New Jersey power over whatever happens on a wharf, even if it extends over Delaware's land. The Duke of York's land grant in 1682 did not split the river down the middle, but it gave Delaware control of the submerged lands all the way up to the low-water mark of the New Jersey side.
When Chief Justice John Roberts Jr. asked which state would have jurisdiction over a murder at the end of the pier, Farr had a ready answer, citing a New Jersey Supreme Court ruling from the 1950s that gave New Jersey jurisdiction over a gambling crime on a wharf over the Delaware River. At the time, Delaware had agreed with that judgment, Farr said.
But Frederick countered that "boundaries matter," arguing that Delaware should rule over what happens on its lands.
Justice David Souter asked Frederick sharply whether Delaware could pass a law that would forbid any wharf from being built from the New Jersey side into the Delaware part of the river. Frederick at first suggested that under a state's police power, such a ban might be possible, but ultimately acknowledged that Delaware could not go that far. But Frederick insisted that approving a liquefied natural gas plant was not among the basic riparian rights that Delaware had to defer to.
"This gives nothing to New Jersey," muttered Scalia, a Trenton native.
As the hearing began, Justice Stephen Breyer stood up and walked out, reflecting his recusal in the case. According to his financial disclosure form, Breyer owns between $15,001 and $50,000 in BP stock.
Given the tenor of the arguments, Breyer's absence could torpedo the case completely, if the other eight justices reach a 4-4 tie on which state wins.
Ordinarily, a tie vote means that the lower court ruling stands, but in this case, there is no such thing. Under the Constitution, disputes between states come to the Supreme Court first, not last. Lancaster's report is just that -- a report and recommendation, not a ruling. If the justices tie, the states might have to work out the dispute themselves or turn to Congress, which ratified the compact in 1907.