Earlier Supreme Court face-offs involved the two states fighting over fishing rights and oyster beds. The case that was argued Tuesday morning has a more modern focus: a huge liquefied natural gas storage and processing plant that BP wants to build on New Jersey’s Delaware River shore in Logan Township.
New Jersey wants the $600 million plant and the economic boost that its construction and operation would bring. Delaware declared in 2005 that the project would violate its Coastal Zone Act and refused to issue a permit.
The problem for New Jersey is that operating the plant requires a 2,000-foot pier, which would reach from the New Jersey shore to the navigable part of the river, so tankers can dock and unload.
Under a 1934 Supreme Court decision that settled a long-disputed boundary, Delaware owns the entire riverbed, from its own shoreline up to the low-water mark on the New Jersey side. But that fact, which neither side in the current case disputes, is not the end of the case, but only the beginning, as the argument on Tuesday made clear.
A major complicating factor is that in 1905, before the boundary was settled, the two states entered into a compact that is still in effect. It provides that “each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature” under its own laws.
The word riparian refers to shoreline, and under traditional land-use law, ownership of shoreline property conveys the right to build a pier or wharf extending far enough into the water to make the property accessible.
To New Jersey, permitting the BP project is simply an exercise of “traditional riparian authority” recognized under the compact, its lawyer, H. Bartow Farr III, told the justices.
But “the question that’s really at the rub of this case,” Delaware’s lawyer, David C. Frederick, said when his turn came, “is what you do on the wharf.”
The “crucial distinction here,” he said, was that Delaware was entitled to exercise its police power to block an activity that it considers dangerous or a “nuisance.”
The justices’ many questions during the animated session indicated that they found neither argument completely persuasive.
“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” Justice Antonin Scalia said to Mr. Farr.
And Justice Samuel A. Alito Jr. objected to Mr. Frederick that if Delaware was entitled to a veto power over the uses of New Jersey-based piers and wharves, then the effort in the 1905 compact to preserve New Jersey’s riparian rights was “worthless” and “meaningless.” Could Delaware declare that docking a sailboat was a “nuisance”? he asked.
New Jersey brought its case against Delaware directly to the Supreme Court, invoking the court’s exclusive constitutional authority to decide suits between states under what is known as the court’s “original jurisdiction.”
That fact presents a potential, highly unusual wrinkle. Justice Stephen G. Breyer recused himself from the case due to his ownership of BP stock, raising the possibility of a 4-to-4 tie.
Ordinarily, a tie vote at the Supreme Court means that the lower court judgment is affirmed, without an opinion and without setting a precedent. But in this instance, there is no lower court judgment. There is simply the report of a lawyer from Portland, Me., Ralph I. Lancaster Jr., whom the justices appointed as a special master to investigate the dispute and make a recommendation. He recommended a ruling for Delaware.
Kenneth S. Geller, a co-author of “Supreme Court Practice,” the leading manual on Supreme Court procedure, said in an interview that he was unaware of a tie vote ever occurring within the court’s original jurisdiction. If the court could not decide the case, he said, the states would probably have to find a political solution.