The Meddlesome Duke of York and the New Jersey-Delaware Border Dispute

The State of New Jersey is suing the State of Delaware in the U.S. Supreme Court. At issue is whether Delaware has the power to permit or prevent the construction of an LNG terminal in the Delaware River. It turns out the the Delaware River that divides New Jersey and Pennsylvania and Delaware is not evenly divided, and Delaware has sovereignty up to the banks of part of New Jersey.

The boundary between the two states was officially set in a 1934 Supreme Court case. Due to a seventeenth-century deed from the Duke of York, the boundary runs up to the low-water mark on the New Jersey shore in the Newcastle area. In two areas, the shore has actually changed since the 1930s, giving Delaware sovereignty over two small sections of New Jersey. Even though New Jersey’s LNG facility would be located on the New Jersey shore, its pier would be built on riverbed located in Delaware. Delaware refuses to permit the project.

New Jersey has not asked the court to alter the state line, but instead claims certain rights in the Delaware River regardless of the state boundary. New Jersey also bases its claims on a historical compact between the two states, known as the Compact of 1905, which settled a dispute over how Delaware could regulate activities on the Delaware River.

Cases before the U.S. Supreme Court are appeals of lower-court decisions, but because a dispute between two states falls within the U.S. Supreme Court’s original and exclusive jurisdiction, there has been no lower-court decision and there is no factual record for the court to review. What will the outcome be? Stay tuned.