Border Dispute: Supreme Court Referees New Jersey and Delaware

Delaware has won a border dispute with neighboring New Jersey, effectively blocking a liquefied natural gas plant on the New Jersey side of the Delaware River. At issue are state’s sovereign rights, and The Supreme Court has upheld them.

The case looks at Delaware's claim to the entire river, which dates back to a 1682 land grant from the Duke of York to William Penn. Due to environmental concerns, Delaware officials asserted this claim, and refused New Jersey a construction permit. 

At the heart of the case is how much control Delaware can exert over development projects on New Jersey's side of the river. Normally, Delaware would not have power to veto projects under way in New Jersey. But the liquefied natural gas (LNG) plant required construction of a 2,000-foot pier and dredged area in the Delaware River, where up to three tankers per week would unload. If the entire river is sovereign Delaware territory, as the courts have ruled, New Jersey would need permission to build.

In a 6-to-2 decision, the US Supreme Court found that Delaware has the authority to stop the project since it has sovereign control over the entire Delaware River up to the banks on the Jersey side, where the project was planned. In its ruling, the court found that Delaware's authority over the river remained undiminished despite an agreement known as the 1905 Compact.

The 1905 Compact

The decision rests on the majority’s interpretation of The 1905 compact, an agreement in which both states hoped to settle the border dispute for good. The agreement says that “Each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature…." New Jersey read the agreement as authorization to proceed with the plant. Delaware disagreed, as did The Court.

Justice Ruth Bader Ginsburg wrote for the majority: "We hold that Article VII of The 1905 Compact does not grant New Jersey exclusive jurisdiction over all riparian improvements.”

The majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, David Souter, and Clarence Thomas. Justice John Paul Stevens filed an opinion concurring in part and dissenting in part. Because he owns stock that could benefit from the project, Justice Stephen Breyer took no part in the case.

Dissent

Justices Antonin Scalia and Samuel Alito dissented. Both are sons of New Jersey; both were born in Trenton, although Justice Scalia moved with his family to New York City when he was young.

In his dissent, Scalia said the 1905 Compact should be read to permit New Jersey to move forward with its development project. "The whole purpose of the 1905 Compact was precisely to come to a compromise agreement on the exercise of the two states' sovereign powers," he writes. "Under the plain terms of the 1905 Compact, each state had 'jurisdiction' – the authority of a sovereign power to govern or legislate – over wharfing out on its own side of the river," he writes.

Scalia suggested that the majority’s environmental sensitivity affected the outcome: "Our environmentally sensitive court concedes that if New Jersey had approved a wharf of equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could not have interfered," Scalia writes.

Effects of the decision

The decision will effectively block development of the LNG plant. State officials have said the plant would produce 1.2 billion cubic feet of natural gas per day – enough to supply every home in New Jersey, Delaware, and eastern Pennsylvania. The project had been expected to create more than $1 billion in new jobs and other economic benefits in the region, according to economists.

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