Ah! Delaware. Such a tangle.
As Delaware heads to federal court tomorrow seeking an injunction to stop the Army Corps of Engineers from deepening the Delaware River five additional feet, pressure is mounting on Gov. Jack Markell's administration to find a way out of the lawsuit in the interest of jobs and the state's economy.
Markell and Delaware Attorney General Joseph "Beau" Biden are leading the charge to stop the Army Corps, on a state's-rights challenge - insisting the Corps get an environmental permit from Delaware, which in July rejected the Corps' permit application pending since 2001.
Delaware has historically opposed deepening the main navigation channel on environmental grounds. But now, business groups - including two chambers of commerce - and labor, along with the Port of Wilmington and some members of Markell's administration, favor the project as good for a state with 8.7 percent unemployment and 36,000 people out of work.
Valero Energy Corp. was the latest Delaware business to announce it would close its refinery in Delaware City, shedding 550 jobs. In the last year, Chrysler Group L.L.C. and General Motors Co. have closed plants in Delaware, costing about 1,150 jobs.
"It's all about jobs," said Alan Levin, former president and chief executive officer of Happy Harry's Inc. drugstore chain and Markell's head of economic development. Levin also is chairman of the Diamond State Port Corp., which manages the 308-acre Wilmington port that employs 4,300 workers.
"I am in favor of deepening the Delaware. I have said that publicly," said Levin, adding, "Also, though, I am a member of this administration, and I do believe the state has a right to safeguard its interests, to make sure this is an environmentally sound decision."
Between 2001, when the Corps applied for a permit, and July, when Delaware finally rejected it, a lot of the paperwork in the case became "old. What needs to be done is an update on the studies that have been done," Levin said.
"I don't believe it would take years. I think we could get through this in six months," he said. Levin favors starting the environmental updates even before the outcome of litigation.
"I can honestly say that this would be, assuming it's safe, and we get the proof, a boon not only for Delaware, but the whole river. There are a lot of proponents for this, as long as we can do it in a safe fashion.
"The businesses may feel, and the longshoremen may feel, there is enough data," Levin said. "The environmentalists may feel there never will be enough data. But in the end, this governor wants to make sure that all the I's are dotted and T's crossed."
Environmental interests have been historically strong in Delaware. In the early 1970s, the Delaware Legislature approved a Coastal Zone Act that has kept manufacturing off the Delaware River for more than 30 years.
When New Jersey tried to put a liquefied natural gas plant with docks in the river, Delaware took it to the U.S. Supreme Court, based on an ancient deed in William Penn's day that Delaware's border extends in some places to the New Jersey shoreline.
A recent voice in the deepening debate is former Delaware Gov. Pierre S. "Pete" du Pont, who wrote a column in the Wilmington News Journal last week titled "River dredging: Let's do it."
The two-term Republican governor and former U.S. congressman noted that 400 ships, 4,000 jobs, 4 million annual tons of products, and $403 million in revenue are generated annually by the port. He also noted that the federal government since World War II has dredged the river annually to maintain its current 40-foot depth.
"In constitutional terms," said du Pont, a Harvard-educated lawyer, "I don't believe a city or a state has the right to ban dredging. Look at some of the old legal documents, and it's very clear the federal government has the constitutional right to deal with navigation in the deeper waters."
"That's true of the ocean, the harbors, it's true everywhere," du Pont said in an interview. Even the buoys in the river belong to the government, "and so the government gets to decide on the depth as well."
Delaware's two largest shippers, Dole Fresh Fruit Co. and Chiquita Brands International Inc., have told the port that as their businesses grow, they will need expanded berths and terminals on the Delaware and that deepening the river to 45 feet will be essential.
"Wilmington is the largest banana receiving port in the world," said Stuart Jablon, vice president of operations for Dole, which brings 3.2 billion bananas and 40 million pineapples a year into the Wilmington port on ships that hold 1,000 containers.
"The international shipping industry is moving to bigger vessels. If this port wants to compete in the maritime world, it has no alternative but to increase the draft capabilities to 45 feet," Jablon said.
Chiquita vice president Deverl Maserang said, "Wilmington is strategically where we want to be," but "Chiquita needs a vibrant, growing port" competitive with other East Coast ports that have 45-feet and deeper waters. "The ramifications of not getting this done has a real economic impact if we continue to see delay because then this port will not, and cannot, grow.
"The ports around the nation are all deepening," Maserang said.
U.S. District Judge Sue L. Robinson will be asked by Delaware - which has been joined in the case by New Jersey and five environmental groups - to stop the deepening before it begins, even before a full hearing on the issues.
Delaware must demonstrate persuasively that, if the Corps proceeds without a permit, Delaware will suffer irreparable environmental harm.
Delaware's argument also includes a state's-rights issue, that it will be harmed as a state if the federal government is allowed to toss aside state sovereignty. It is a state-vs.-federal-government issue. Delaware wants its right to regulate the dredging to be vindicated.
Judge Robinson has allowed the filing of legal papers by interested parties, including the Philadelphia Regional Port Authority, the project sponsor along with Pennsylvania, and U.S. Sen. Arlen Specter (D., Pa.), who has filed a friend-of-the-court brief in support of deepening.
But only lawyers for Delaware and the Army Corps will be permitted to present oral arguments.