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British Petroleum will have to find another site for a planned $600 million natural gas terminal after the Supreme Court on Monday upheld Delaware’s right to nix the plan — even though the bulk of it would sit on New Jersey soil. By a 6-2 vote, the Court ruled that Delaware can exercise what amounts to veto power over the project because a 2,000-foot pier would extend into parts of the Delaware River owned by Delaware. The high court rejected arguments that because the terminal, known as Crown Landing, would be mainly built in Logan Township, N.J., the Garden State had exclusive authority over all parts of it, including the wharf extending into Delaware. The two justices born in New Jersey, Antonin Scalia and Samuel Alito Jr., were the only members of the Court to side with New Jersey in the dispute. Justice Stephen Breyer recused himself. According to his latest financial disclosure form, Breyer owns between $15,001 and $50,000 in BP stock. “Crown Landing is an important energy project for the nation and for the region,” said Tom Mueller, government and public affairs director for BP, in a statement. “We will continue to explore other options, and we anticipate that the project will move forward and eventually be built here on the Delaware River.” The case, New Jersey v. Delaware, came to the Court under its original jurisdiction, which makes it the court of first and last resort in disputes between states. The Court appointed a special master, Ralph Lancaster Jr., to sift through thousands of documents and hear arguments from both sides. The two states have been arguing over the Delaware River boundary in different contexts since at least 1877. Lancaster issued a report last year finding that Delaware had “overlapping jurisdiction” to regulate improvements that extend into its territory. The high court agreed, in part because New Jersey over the decades had largely accepted Delaware’s jurisdiction — until this project. Justice Ruth Bader Ginsburg, writing for the majority, did say that Delaware could not impede “ordinary and usual” exercises of riparian rights by owners of coastal land. But the gas terminal project is of “extraordinary character,” Ginsburg wrote, and therefore can be restricted by Delaware. She noted that a 1972 Delaware law bars “heavy industry uses of any kind,” including gas transfer facilities, in its coastal zone. David Frederick Jr. of Kellogg, Huber, Hansen, Todd, Evans & Figel in D.C., who argued the case for Delaware, said Monday the ruling unequivocally means the terminal cannot be built in the location that BP wants. “The only room for compromise would require Delaware to revisit the statute, which is unlikely,” said Frederick. In dissent, Scalia ridiculed the majority’s use of the term “extraordinary character.” “Our environmentally sensitive Court,” he wrote, would have allowed an equivalent wharf to be built into the Delaware River without Delaware’s interference if it were aimed at “carrying tofu and bean sprouts” rather than natural gas. In a footnote, Ginsburg readily agreed with Scalia’s tofu hypothetical.
Tony Mauro can be contacted at [email protected].

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