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(Apr 02, 2008) On March 31, the Supreme Court ruled that the State of Delaware has the authority to deny a permit for a liquefied natural gas (LNG) terminal that would have extended from the New Jersey shore of the Delaware River into Delaware territory.

The states of New Jersey and Delaware have long disagreed about aspects of their respective jurisdiction over the Delaware River. Under a 1905 compact between New Jersey and Delaware, they agreed that each state could exercise "riparian jurisdiction of every kind and nature" on its own side of the river, but that otherwise the compact would not "affect the territorial limits, rights or jurisdiction of either State of, in, or over the Delaware River . . . except as herein expressly set forth." In 1934, the Supreme Court ruled that Delaware owns the river within a twelve-mile circle from New Castle, Delaware, up to the low water mark on the New Jersey side.

In 2004, British Petroleum (BP) sought permission from both New Jersey and Delaware to construct an LNG terminal on the New Jersey shore extending 2,000 feet inside the twelve-mile circle. Delaware denied the permit, ruling that the terminal was prohibited by Delaware environmental law. In response, New Jersey commenced an original action before the Supreme Court, seeking a declaration that the 1905 compact gave New Jersey exclusive regulatory authority over all projects appurtenant to its shores, including those extending into Delaware territory.

The Supreme Court ruled that New Jersey and Delaware have overlapping jurisdiction over "riparian structures and operations of extraordinary character" extending from the New Jersey shore into Delaware territory. The Court ruled that while the 1905 compact preserved to each state "riparian jurisdiction" over structures ordinarily and usually enjoyed by landowners at the shore, the LNG terminal project went beyond an ordinary or usual riparian use, and thus Delaware had authority to regulate it. The Court thus confirmed Delaware's authority to deny BP permission to construct the proposed LNG terminal at this location. (New Jersey v. Delaware, No. 134 Orig. (March 31, 2008) available at http://www.supremecourtus.gov/opinions/07pdf/134Orig.pdf.)

Author: Luis Acosta More by this author
Topic: Boundaries More on this topic
Jurisdiction: United States More about this jurisdiction

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Last updated: 04/02/2008