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SCOTUS Decides in Favor of First State: in New Jersey v. Delaware

By Francis G. X. Pileggi, Esq.

In New Jersey v. Delaware, case No. 134, (Orig.), the United States Supreme Court decided today, (read opinion here), that Delaware has the right, in essence, to veto a plan approved by New Jersey,  for a company to build a liquefied natural gas (LNG) terminal that starts on the New Jersey side of the Delaware River (that forms the boundary between the two states), but which terminal proceeded over the boundary line, into Delaware State. Admittedly, this case does not involve--directly--Delaware corporate or commercial law, but this blog provides this blurb on the decision due to its importance as one of the rare cases that invokes the "original jurisdiction" of the U.S. Supreme Court (where the parties (two states) filed their lawsuit directly with SCOTUS). Also, at least tangentially, because the dispute at its core involves a proposed multi-million dollar project of a major company (whose plans are now dashed), it has "business relevance".

As an aside, regardless of the result, Justice Scalia provides an example of the best that the English language has to offer in the following excerpt of his dissent, as highlighted by Carolyn Elefant on law.com:

 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.

P.S. My friend and fellow Delaware lawyer, Matthew Boyer, was one of the winning attorneys for the State of Delaware on the case. Congrats, Matt.

Full post as published by Delaware Corporate and Commercial Litigation Blog on March 31, 2008 (boomark / email).