New Jersey, which brought a Supreme Court case against Delaware over the issue in 2005, lost the first round when a special master appointed by the justices declared in April that Delaware was entitled to veto the project because it would encroach on Delaware’s underwater territory. The special master’s recommendation in such a case is nonbinding, and the Supreme Court agreed on Monday to hear New Jersey’s challenge.
As a boundary dispute, the case, New Jersey v. Delaware, No. 134 Original, falls within the court’s “original jurisdiction” to hear disputes between states. Disagreement between these two original states over where their common boundary lies under the Delaware River goes back to the early days of the country. New Jersey first sued Delaware in the Supreme Court in 1877, and a compact that the two states signed in 1905 bought some decades of relative peace while leaving the basic issues unresolved.
When BP proposed in 2003 to build a $600 million terminal at Logan Township in Gloucester County to receive and process liquefied natural gas from Trinidad, the simmering tension between the states erupted again. Delaware claimed that in that part of the river, known since Colonial times as the “12-mile circle,” it owned the land from its shore all the way to the low-water mark on the New Jersey side. Exercising that sovereignty, Delaware refused to approve the BP project, known as Crown Landing.
Delaware’s objection to the BP plant is basically environmental. In 2005, the state’s Department of Natural Resources and Environmental Control held that the project was prohibited under the Delaware Coastal Zone Act and refused to give BP a permit to proceed. The project would permit supertankers with cargo capacities of up to 200,000 cubic meters — 40 percent larger than the biggest ships that currently carry liquefied natural gas — to unload their cargo every two to three days.
For the Supreme Court justices, however, the question will not be one of environmental policy, but rather of the interplay between the two states’ 1905 compact and a 1935 Supreme Court ruling that set the boundary at New Jersey’s low-water line “subject to the compact of 1905.” New Jersey argues that the compact preserved its exclusive right to control its shoreline.
The special master, Ralph I. Lancaster Jr., a lawyer from Portland, Me., disagreed. In his 100-page report to the justices, he observed that before filing its Supreme Court lawsuit, New Jersey had described the project as one that fell within the regulatory jurisdiction of both states.
The debate over the environmental consequences of importing liquefied natural gas will continue no matter how the Supreme Court resolves this case. Energy companies have announced plans to build more than 40 liquefied natural gas terminals to accommodate rising consumption.