Delaware Wins!

New Jersey’s hope of profiting from a huge liquefied natural gas processing plant on its Delaware River shore ended yesterday, as the Supreme Court ruled with a vote of 6 to 2 that Delaware has the right to veto the project. You can read the factual background and legal basis for the case in previous posts here and here.

Writing for the court on Monday, Justice Ginsburg said that while New Jersey had the right of “ordinary and usual” use of its shoreline, the proposed LNG project was an operation of “extraordinary character” over which New Jersey and Delaware shared overlapping authority under the court’s interpretation of a 1905 compact between the two states. As the LNG project “goes well beyond the ordinary or usual,” Justice Ginsburg concluded that New Jersey could not proceed without Delaware’s approval. Chief Justice Roberts and Justices Kennedy, Souter, and Thomas joined Justice Ginsburg’s opinion. The sixth vote for Delaware came from Justice John Paul Stevens, who wrote separately to say that he would give Delaware a veto not only over ‘’extraordinary’’ operations, but also over any ‘’structures and operations extending out from New Jersey into Delaware’s domain.’’

The two dissenters were the court’s two most conservative judges and both New Jersey-born, Justices Scalia and Alito. Scalia said in his dissenting opinion, which Justice Alito signed, that the court had never before applied a test of whether a proposed shoreline use was of an ‘’extraordinary character.’’ In typical Scalia prose, the Justice wrote ‘’What in the world does it mean?… Would a pink wharf or a zig-zagged wharf qualify?” (Justice Breyer did not participate because he owns BP stock.)