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Supreme Court upholds Delaware border claim

Ruling 6 to 2, the justices say New Jersey has no right to build a liquefied natural gas plant with a Delaware River pier.

By Staff writer of The Christian Science Monitor / April 1, 2008



Delaware has won a border dispute with neighboring New Jersey over its power to block development projects on the Jersey side of the Delaware River.

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In a 6-to-2 decision announced on Monday, the US Supreme Court ruled that Delaware has the authority to block a planned liquefied natural gas (LNG) plant in New Jersey.

That power stems from Delaware's sovereign control over the entire Delaware River up to the banks on the Jersey side, where the project is planned.

Citing coastal environmental concerns, Delaware officials sought to stop the proposed Crown Landing terminal project by refusing to permit construction of a pier and tanker-loading area extending from the plant into the river.

Delaware's claim to the entire river dates from a 1682 land grant from the Duke of York to William Penn. In earlier versions of the same border dispute, the Supreme Court has upheld Delaware's control over the entire river. At issue in the most recent version of the dispute was whether Delaware had granted open-ended permission to New Jersey to pursue development projects extending into the river under a 1905 agreement between the two states.

In its ruling on Monday, the court found that Delaware's authority over the river remained undiminished despite the agreement known as the 1905 Compact.

The decision turns on the majority justices' interpretation of the compact, an agreement in which both states sought to settle the border dispute for all time.

The agreement says in part: "Each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and natureā€¦."

New Jersey read the agreement as authorization to proceed with its LNG plant. Delaware disagreed.

"We hold that Article VII of the 1905 Compact does not grant New Jersey exclusive jurisdiction over all riparian improvements," writes Justice Ruth Bader Ginsburg for the majority. "We resist reading the uncommon term 'riparian jurisdiction,' even when aggrandized by the phrase 'of every kind and nature,' as tantamount to an express cession by Delaware of its entire territorial jurisdiction ... over the Delaware River."

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.

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.

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