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New Jersey v. Delaware, Tofu and Bean Sprouts v. Liquified Natural Gas

What's most interesting about today's Supreme Court decision in Delaware v. New Jersey isn't the main course, i.e.whether Delaware could lawfully block a liquified natural gas (LNG) facility proposed on the New Jersey side of the Delaware River.  Instead, it's the side dish, (or snide dish) of "tofu and bean sprouts" that Justice Scalia served up in his dissent.

Delaware v. New Jersey is one of those infrequent matters where the Supreme Court is called upon to exercise its original jurisdiction to resolve disputes between states.  Here, New Jersey had approved necessary permits to authorize construction of an LNG facility on its side of the Delaware River.  Trouble is, the pier extended 1,455 feet into Delaware's claimed territory -- and Delaware denied a permit necessary to allow construction of the facility. 

To resolve the dispute, the Court examined Article VII of a 1905 Compact between New Jersey and Delaware that governed their respective usage rights.   In a majority opinion authored by Ginsburg (Stevens concurred, Breyer recused), the Court found that the Compact did not give New Jersey exclusive jurisdiction over all riparian improvements commencing on its shores. As such, Delaware had overlapping authority to regulate those portions of a structure that extended into its waters, so long as it did not impede "ordinary and usual exercises" by riparian owners in the New Jersey. The Court found that an LNG terminal "goes well beyond ordinary or usual." Thus, the Compact allowed Delaware to lawfully deny a permit for the facility.

Scalia dissented, with Alito joining.  Scalia held that the Compact gave New Jersey exclusive jurisdiction over improvements beginning in its territory, noting that Delaware could effectively deny New Jersey of any authority by voting to block the permit.  In Scalia's view, Delaware's ability to veto New Jersey's development decisions rendered Article VII of the Compact meaningless.

But for Scalia, this decision wasn't just about Delaware and New Jersey.  It was also about... bean sprouts and tofu.  Here's Scalia's "money" quote:

After all, our environmentally sensitive Court concedes that if New Jersey had approved a wharf of equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could not have interfered.

On the serious side, Scalia pointed out the economic impacts that Delaware's denial of authorization of the facility would have on New Jersey's economy and the nation's energy supply.  As such, Scalia emphasized that the Court owed New Jersey and the nation much more than casual statements that the wharf is an "extraordinary" type of facility that would justify allowing Delaware to veto it under the Compact. 

Posted by Carolyn Elefant on March 31, 2008 at 03:37 PM | Permalink | Comments (1)


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