Shared authority over a riverside project
on May 3, 2007 at 3:14 pm
A Portland, Maine, attorney chosen by the Supreme Court to suggest ways to end a simmering dispute between New Jersey and Delaware over riverside development has urged the Court to rule that the two states must share regulatory authority over at least parts of such a project. The Court will consider the proposal by Special Master Ralph I. Lancaster, Jr., of Portland, Maine, at its Confernece next Thursday, May 10, according to the Court’s electronic docket. The case is 134 Original, New Jersey v. Delaware. (The filings in the case, including the Special Master’s report filed April 16, plus exhibits, can be found here, on the website of Lancaster’s law firm. The report and exhibits, both lengthy documents, are at the bottom of the filings.)
At this stage, the Court probably will set the case for hearing before the Justices, rather than proceeding to decide it on the Special Master report alone. Each side likely will be allowed to file “exceptions” to Lancaster’s recommendations.
Conceding that a joint authority over Delaware River projects may “pose practical difficulties,” Lancaster concluded that this is what the two states accepted when they joined in a compact in 1905 to settle the boundary between them as it runs through the Delaware River. If the Court ultimately accepts the recommendations, however, it may leave in considerable doubt New Jersey’s plan to authorize the creation of a large liquid natural gas plant on its shore of the river, a facility that would have loading wharves for supertankers out into the river — inside Delaware’s boundary.
The controversy over that plant led New Jersey to file its lawsuit against Delaware directly in the Supreme Court (under the Court’s Original jurisdiction under the Constitution). Delaware has refused all requests to grant any permits for the gas plant project, so far as it would extend out into the river and across inside its boundary. The controversy had grown so heated that Delaware considered taking steps to have its National Guard protect its borders, and a New Jersey legislator proposed the idea that a battleship now used as a museum in Camden might be brought back into service to repel an armed invasion.
Lancaster, named in January 2006 to study the dispute, suggested that the 1905 Compact gives New Jersey clear authority to authorize development on its own bank of the Delaware, but only on New Jersey land and down to the low-water mark, where Delaware’s border lies.. New Jersey also has authority, the report found, to allow those who build on its shore to put up structures that reach beyond the low-water mark if those are needed to make use of the shoreside project. But, Lancaster went on, Delaware shares jurisdiction over any structures that reach into its territory, including the very “police power” that Delaware has already used to thwart the gas plant project.
Lancaster noted in his report that, if Delaware was found to have jurisdiction to regulate projects that would spread into its territory, that could block entirely the new project on New Jersey’s shore — a project that would be built by Crown Landing, a subsidiairy of British Petroleum.
The Special Master did not go beyond his recommendations on what the Compact means about each state’s legal rights, and thus made no recommendations as to how each should use its share of jurisdiction over the part of a project crossing the state line into Delaware,
Hee are the key parts of the proposed decree Lancaster recommended:
“It is hereby ordered, adjudged, declared and decreed as follows:
“1. (a) The State of New Jersey may, under its laws, grant and thereafter exercise riparian jurisdiction over rights for the construction, maintenance and use of wharves and other riparian improvements appurtenant to the eastern shore of the Delaware River within the twelve-mile circle and extending outshore of the low water mark; and further
” (b) The State of Delaware may exercise, under its laws, full police power jurisdiction over the construction, maintenance and use of those same wharves and other improvements appurtenant to the eastern shore of the Delaware River within the twelve-mile mark insofar as they extend outshore of the low water mark into its sovereign territory.”
(The text of the proposed decree can be found as Appendix A in the exhibits accompanying the Special Master’s report.)
