New Jersey v. Delaware
The Supreme Court ruled that New Jersey and Delaware share overlapping authority over piers and similar structures that extend from New Jersey's shore into Delaware's territory in the Delaware River, rejecting New Jersey's claim that an old interstate compact gave it exclusive control.
Because Delaware could lawfully treat a huge planned liquefied natural gas terminal as more than an 'ordinary' pier, the Court upheld Delaware's refusal to permit the project, even though it would have been built and operated mostly from the New Jersey side.
How it got here: New Jersey sued Delaware directly in the Supreme Court's original jurisdiction; a Special Master recommended that Delaware had overlapping authority, and New Jersey filed exceptions to that report.
The Case in Depth
What happened
New Jersey and Delaware share the Delaware River, and a 1905 compact let each state exercise 'riparian jurisdiction' on its own side while a 1934 Supreme Court decision later fixed the actual boundary well onto New Jersey's side, deep into what became Delaware's owned riverbed. British Petroleum wanted to build a liquefied natural gas unloading pier extending about 2,000 feet from New Jersey's shore into Delaware's territory, but Delaware's environmental agency refused permission under a state law banning heavy industrial and bulk-transfer facilities in its coastal zone.
The question before the Court
Under their century-old boundary agreement, could New Jersey alone decide whether a huge gas-import pier could be built out from its shore into Delaware's waters?
Why it matters
Energy and infrastructure companies planning to build docks, pipelines, or terminals that cross into another state's waters now know that both states may have a say, not just the one where the project is based on shore. The ruling also blocked a large liquefied natural gas terminal that supporters said would have brought jobs and tax revenue to New Jersey.
What changes now
This is a final decision resolving the merits of the interstate dispute; the Court entered a decree, based on the Special Master's proposed decree with modifications, spelling out each state's authority going forward. Delaware's denial of the LNG terminal permit stands, and any future disputes over specific projects extending from New Jersey's shore into Delaware's waters will be measured against the 'ordinary and usual riparian rights' versus 'extraordinary' structures line the Court drew here, with the Court retaining jurisdiction to resolve further disagreements.
What this does not decide
The Court did not define with precision what makes a riparian structure 'extraordinary' rather than ordinary and usual—a gap Justice Scalia's dissent sharply criticized—so future disputes over particular piers, wharves, or facilities may still need case-by-case resolution rather than a clear general rule.
Concurrences and dissents
Dissent in part — Justice Stevens
Justice Stevens agreed the two states share overlapping authority and that Delaware could block the LNG terminal, but he thought the majority gave New Jersey too much power. In his view, Delaware's authority over its own territory is paramount, so New Jersey may authorize riparian construction only to the extent it does not conflict with Delaware's police power, not merely for uses beyond some 'ordinary and usual' line.
Dissent — Justice Scalia
“I find that difficult to accept, because if Delaware could forbid the wharfing out that Article VII allowed New Jersey to permit, Article VII was a ridiculous nullity.”Scalia's central objection that the majority's reading strips Article VII of meaning.
Justice Scalia argued the 1905 compact gave New Jersey exclusive jurisdiction over wharfing out on its own side, making the majority's 'overlapping authority' reading a nullification of Article VII. He criticized the majority's newly invented 'extraordinary character' test as unsupported by any prior law or the compact's text, and argued Virginia v. Maryland had already resolved this type of dispute in favor of the state given riparian rights.
How the Court got there
The legal reasoning, step by step
- The Court read the compact's phrase 'riparian jurisdiction' as a deliberately narrower term than 'exclusive jurisdiction,' reasoning that if the drafters had meant to give New Jersey total control they would have used the more familiar, broader term found elsewhere in the same document.
- Because a landowner's right to build a wharf out into a river has always been subject to some government's regulation for the public's benefit, the Court concluded the compact simply let New Jersey control the ordinary, usual exercise of that right on its own side—not every possible use of a structure extending into Delaware's waters.
- Comparing the 1905 compact's wording to an earlier 1834 New Jersey-New York compact that explicitly used the phrase 'exclusive jurisdiction' over wharves, the Court found the omission of that stronger language in the Delaware compact telling, since other provisions were copied almost verbatim from the 1834 document.
- The Court distinguished its earlier decision in Virginia v. Maryland, explaining that case turned on a specific arbitration award that expressly gave Virginia sovereign authority over river structures free of Maryland's regulation—language absent from the New Jersey-Delaware compact and the 1934 boundary ruling.
- Looking at decades of the two states' actual practices, including New Jersey's own past requests for Delaware's permits and its representations to federal regulators that both states' approval was needed, the Court found further support that the states had long treated their authority as overlapping rather than exclusive to New Jersey.
- Applying that overlapping-authority framework, the Court held that Delaware could lawfully classify the proposed liquefied natural gas terminal as extraordinary rather than an ordinary wharfing-out use, giving Delaware authority to block it under its own environmental law.
Doctrinal impact
Cases affected by this decision
Reaffirms New Jersey v. Delaware II (291 U. S. 361)
The Court relied on its 1934 ruling fixing Delaware's ownership of the riverbed up to New Jersey's low-water mark.
Distinguishes Virginia v. Maryland (540 U. S. 56)
The Court said that case's grant of sovereign, unregulated construction rights rested on unique compact and arbitration language absent here.