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.)

The US Supreme Court is currently hearing arguments regarding the New Jersey-Delaware LNG terminal dispute previously covered at the blog here. The dispute centers on a proposed LNG terminal that energy giant BP wants to build on the Jersey side of the river.

Delaware has refused to authorize the construction of a 2,000-foot-long pier, which would be built on part of the river bottom that belongs to Delaware. Once again, here’s the map:

The arguments:

New Jersey: Yes, Delaware owns the land. But says a century-old agreement allows each state to control piers on its side of the river. A pier on the New Jersey side that can’t stretch onto Delaware territory to reach the main shipping channel is worthless, that’s where the ships are.

Delaware: Decisions on what to build on Delaware land belong to Delaware. Boundaries matter. And on a practical level, Delaware has only twice in 160 years denied permission to build a pier on the Jersey side of the river and both instances involved LNG facilities, for which the state has safety concerns.

A court-appointed special master concluded earlier this year that
Delaware has the authority to block the pier. Justice Stephen Breyer is not taking part in the case because he owns BP stock, raising the potential of a 4 to 4. A tie often means that a lower court ruling is upheld, but disputes between states are decided by the Supreme
Court in the first instance. What happens in the case of the tie? There’s no precedent, and in this case, we may just find out.

Has anything changed? From a travel book on the United States published in 1926:

The symptoms have changed, but the case remains incurable. For to-day New Jersey is still a joke state. Outsiders think of her as the State where they suffer from billboarditis and ride on the Erie and harbor the corporations and broadcast the bedtime tales. They forget her material contributions to the national prosperity.

And who can blame them? Just look at the blame thing now! Coal tipples and garbage dumps and freight tracks and smelters and refineries invade the marshes, and the birds are mostly fled away, and for wild life the mosquitoes are left. The elm-shaded towns where once upon a time future statesmen were born and patriots grew up and writers ripened their art, have become clamorous, cindered, smoky factory places crowded with transcendently ugly workshops, the dirty, homely streets swarming with alien workers quacking a jargon of tongues fit to eclipse Babel’s Tower itself.

It is hard to believe that here, long ago, poets dreamed their dreams and painters plied deft brushes and masters in statecraft dealt masterfully with the politics of their time; that once upon a time great publicists and great orators dwelt in these spots. It is impossible to believe that any such ever again will abide here.

Also of note is a state’s status as a “joke state.” As MF notes, some things have changed, some things have not:

It is not well for a state to be, by national estimation, a standing joke. Kansas once was one and it took her long years to live it down. [Ed: Kansas has worked hard in recent years to reclaim that title.] Arkansas was one and has not yet entirely recovered. Connecticut was one and because of traditional memories lingering in the popular mind of wooden nutmegs and shoe-peg oats, will never entirely get over it. [Ed: I have 0% idea what those references mean. I suppose that means Connecticut HAS gotten over it.] Missouri, for a spell, had a close call with being one, but lacking all else, the state which foaled a Mark Twain would have a title to immortal grandeur on that sole account.