Delaware’s control of the riverbed extends to the low-water mark on the New Jersey side, and the state has objected to the 2,000-foot pier that the plant would require in order for supertankers to unload their cargo of liquefied gas. The Delaware Department of Natural Resources and Environmental Control refused permission for the operator of the proposed plant, Crown Landing LLC, a subsidiary of BP, to proceed.
In 2005, New Jersey responded to Delaware’s action by filing suit against Delaware directly in the Supreme Court. New Jersey invoked the “original jurisdiction” that Article III of the Constitution gives to the court to decide suits between states. The state argued that a shoreline owner has a well-accepted right to build, or to give permission to build, “improvements” to the shoreline such as wharves and piers, and that the BP plant was simply an example of that.
Writing for the court on Monday, Justice Ruth Bader Ginsburg said that while New Jersey’s general proposition was valid for “ordinary and usual” uses of the shoreline, this was not such a case. Rather, Justice Ginsburg said, what was proposed was an operation of “extraordinary character” over which New Jersey and Delaware shared “overlapping authority” under the court’s interpretation of a 1905 compact between the two states.
Describing the proposed operation in considerable detail, Justice Ginsburg noted that supertankers, arriving two or three times a week, would have a capacity more than 40 percent larger than any liquefied natural gas ship now in operation, and that the dredging of 1.24 million cubic yards of river bed would impinge on Delaware’s territory. The pier would extend 1,455 feet into Delaware’s territory. The Delaware River at the proposed location in Logan Township, near two major natural gas pipelines, is about one mile wide.
The Crown Landing project “goes well beyond the ordinary or usual,” Justice Ginsburg concluded, and could not proceed without Delaware’s approval.
The dissenters were the court’s two New Jersey-born justices, Antonin Scalia and Samuel A. Alito Jr. Justice Scalia said in his dissenting opinion, which Justice Alito signed, that the court had never before applied a test of whether a proposed shoreline use was of an “extraordinary character.”
“What in the world does it mean?” Justice Scalia’s dissenting opinion asked. “Would a pink wharf or a zig-zagged wharf qualify?” With evident sarcasm, he referred to “our environmentally sensitive court.”
The decision, New Jersey v. Delaware, No. 134 Original, affirmed the recommendation of the special master, Ralph I. Lancaster Jr., a lawyer from Portland, Me., whom the justices appointed to take evidence and make a recommendation in the case.
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, David H. Souter, and Clarence Thomas joined Justice Ginsburg’s opinion. The sixth vote for Delaware came from Justice John Paul Stevens, who wrote separately to say that he would give Delaware a veto not only over “extraordinary” operations, but also over any “structures and operations extending out from New Jersey into Delaware’s domain.”
Justice Stephen G. Breyer did not participate because he owns BP stock. His absence posed the possibility of a 4-4 tie, a prospect that in turn raised a question that experts in Supreme Court procedure have been unable to answer. A tie vote at the Supreme Court automatically affirms the judgment of the lower court, but in an “original” case, there is no lower court judgment. So what effect would a tie have? An answer proved unnecessary.
With consumption of natural gas growing rapidly, energy companies have been searching for locations for bringing ashore the gas, transported in liquefied form. Proposals are typically met with environmental objections. New York State is soon to decide whether to give approval to Broadwater, a proposal for a quarter-mile-long storage barge in Long Island Sound that could provide the metropolitan region with a billion cubic feet of natural gas a day. Exxon recently announced plans for a floating terminal 20 miles off the New Jersey coast.