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Court backs Delaware in river dispute

The U.S. Supreme Court ruled, 6-2, that New Jersey and Delaware have "overlapping authority" to control "extraordinary" construction projects along the Delaware River, upholding Delaware's right to stop developments on the New Jersey side of the river.

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The U.S. Supreme Court ruled, 6-2, that New Jersey and Delaware have “overlapping authority” to control “extraordinary” construction projects along the Delaware River, upholding Delaware’s right to stop developments on the New Jersey side of the river. New Jersey v. Delaware, No. 134, Orig. In 2005, New Jersey sued Delaware over BP PLC’s plans to build a liquefied natural gas plant on New Jersey’s side of the Delaware River. BP said the plant could deliver up to 1.2 billion cubic feet of natural gas a day to the Mid-Atlantic region. Delaware refused to approve construction of a 2,200-foot pier that would serve the facility, citing safety concerns. Up to 150 ships a year would dock at the proposed pier. Delaware said an estimated 22,000 residents living near the river’s main shipping channel would be at risk in case of a major accident. Under New Jersey v. Delaware, 291 U.S. 361 (1934), the boundary between the two states is the New Jersey shoreline, a line dating to colonial times. The pier would extended well beyond this border. Without the pier, the project could not go forward. New Jersey asked the court to declare that a 1905 interstate compact gives it the right to control access for swimming, boating and fishing and structures on its side of the river, even if they extend across the border. In 2007, a court-appointed special master found that Delaware has the authority to block the pier. The justices affirmed. Writing on behalf of the court, Justice Ruth Bader Ginsburg said that, though Delaware cannot block ordinary projects from going forward, the proposal at issue “goes well beyond the ordinary or usual.” Ginsburg said, “We accept the Special Master’s recommendation in principal part. Article VII of the 1905 Compact, we hold, did not secure to New Jersey exclusive jurisdiction over all riparian improvements commencing on its shores. “The parties’ own conduct, since the time Delaware has endeavored to regulate coastal development, supports the conclusion to which other relevant factors point: New Jersey and Delaware have overlapping authority to regulate riparian structures and operations of extraordinary character extending outshore of New Jersey’s domain into territory over which Delaware is sovereign,” she wrote. Ginsburg said that Delaware may not impede the ordinary and usual exercises of the right of riparian owners to wharf out from New Jersey’s shore. However, given the unusual nature of the BP project, “it was within Delaware’s authority to prohibit construction of the facility within its domain.” The dissent by Antonin Scalia, joined by Samuel A. Alito Jr., said the decision “creates irrationality” because “Delaware . . . has no interest whatever in facilitating the delivery of goods to New Jersey.” Stephen G. Breyer recused.

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