A Huge Court Victory For Little Delaware

Dotted line shows wacky Delaware-New Jersey border

In a huge victory for environmentalists and my fellow First State citizens, Delaware won an historic Supreme Court fight with New Jersey today, probably killing a proposed nearly half-mile-long liquefied natural gas terminal on the New Jersey side of the Delaware River.

The justices, in a surprising 6-2 decision, said Delaware can block the project even though it was proposed by energy giant BP for the other side of the river.

Associates of mine who had attended oral arguments on the case said that a majority of justices, as has been the high court's wont in recent decisions, seemed to be leaning toward the pro-business arguments proffered by New Jersey.

Delaware, which owns the river bottom most of the way across the waterway, including the land on which a 2,200-foot-long pier would be built, sought to block the massive project because of safety concerns.

The terminal also was a violation of Delaware's pioneering Coastal Zone Act, which bans new heavy industry along the river.

Both states agreed that Delaware owns the land, but New Jersey argued that a century-old agreement allows each state to control piers on its side of the river.

Justice Ruth Bader Ginsburg, writing for the majority, said Delaware cannot block ordinary projects from going forward. The proposal at issue, however, "goes well beyond the ordinary or usual," she said.

Justices Samuel Alito and Antonin Scalia, who had harshly questioned Delaware's lawyers during oral arguments, dissented. Under a 1905 agreement, Scalia asserted, New Jersey has exclusive authority over construction of piers on its side of the river.

New Jersey officials had approved the project, which could create more than 1,300 construction jobs. Delaware officials, however, refused to authorize construction and without the pier the project could not go forward.

Delaware's lawyers told the court that the state has only twice in 160 years denied permission to build a pier on the Jersey side of the river, and both instances involved LNG facilities.

Up to 150 ships a year would dock at the proposed pier, which would be directly across the river from Claymont, Delaware.

Delaware said the proposal raises safety fears because an estimated 22,000 residents living near the river's main shipping channel would be at risk in case of a major accident. BP said the facility could deliver up to 1.2 billion cubic feet of natural gas a day to the Mid-Atlantic region.

A court-appointed special master concluded last year that Delaware has the authority to block the pier.

Justice Stephen Breyer did not participate in the case because he owns $15,000 to $50,000 in BP stock, according to his most recent financial disclosure.

More here on the decision and here on the background of the case.