The Supreme Court on Monday agreed to let the state of New Jersey sue the state of Delaware – directly in the Court — in an interstate dispute over plans to build a large new natural gas loading facility for supertankers along the Delaware River that forms a border between the two states. The case will be heard as 134 Original, New Jersey v. Delaware.

A unit of the oil giant, BP, wants to build a bulk liquid natural gas transfer facility — the so-called Crown Landing project — on the New Jersey side of the river, but part of the pier construction would require dredging of underwater lands that Delaware claims as part of its “coastal zone.” State officials in Delaware have denied BP a permit to build the project, finding it would violate state law designed to protect the coastal zone against heavy industrial development.

New Jersey traces its claim to authority to grant a permit for the new facility back to a 1905 compact between the two states settling a boundary dispute between them. New Jersey argues that the compact gives it control over riverbank areas of the Delaware on its side, and thus contends that Delaware may not stop it from authorizing development of those areas. New Jersey asked the Supreme Court to reopen a 1935 decree on the boundary question, to deal with the new controversy over the BP facility. As an alternative, it asked the Court to let it file a new lawsuit — an original complaint, in constitutional terms — to put the controversy before the Court.

In a brief order, the Court refused to reopen the 1935 decree, but then gave New Jersey permission to file the new lawsuit, docketing it as 134 Original. The Court had previously dealt with the boundary dispute in No. 11 Original, leading to a 1935 decision.

Delaware tried unsuccessfully to persuade the Court not to hear the new dispute over the gas-transfer facility. Among other arguments, Delaware contended that the real party with interests in the case is BP, not the state of New Jersey. The state also said that federal reviews of the proposal have not been completed, so it is not certain that the current status of the plan will not change.

The Court gave Delaware 30 days to file a formal answer to the new complaint. Once the case goes forward, the Court is expected to name a special master to gather facts and propose legal conclusions to resolve the dispute.

Posted in New Jersey v. Delaware, Uncategorized