Supreme Court hears riverfront arguments

WASHINGTON - New Jersey and Delaware yesterday took their long-running border battle to the U.S. Supreme Court, where attorneys for both sides were peppered with sharp questions from the justices.

At stake is a $600 million liquefied natural gas terminal that energy giant BP wants to build on the New Jersey side of the Delaware River.

In early 2005, New Jersey regulators approved a BP proposal for a 2,000-foot pier in Gloucester County that would extend into Delaware's coastal waters.

Delaware rejected a permit for the pier, citing the provisions of a century-old compact between the neighboring states. Under the plans, an unloading platform and transfer facilities would be located on the Delaware side of the boundary line in the river.

After New Jersey brought suit, the Supreme Court appointed a "special master," who concluded in April that Delaware controls the river all the way to the Jersey Shore and can use the compact to deny permission for the terminal.

In an hour-long session, attorneys for the states asserted their riparian rights under the Compact of 1905, as the negotiated agreement in known.

New Jersey's advocate, H. Bartow Farr, argued that a "may continue" clause in the compact allowed the state to exercise its rights to build a pier and regulate its use, even if it crosses a boundary.

Chief Justice John Roberts wondered about which state would prosecute a murder that occurred on a Jersey wharf that extended into Delaware territory.

Farr replied that New Jersey would retain jurisdiction, and cited as precedent a case involving gambling on a wharf that crossed the boundary line.

Attorney David Frederick, representing Delaware, said his case could be summed up in two words: "Boundaries matter." He then spent 30 minutes expanding on that summation, interpreting the compact as protecting the jurisdictional prerogatives of the state.

Justice Samuel Alito, a former federal judge in New Jersey, appeared to defend the rights of his home state in questioning Frederick.

"Who decides what is a nuisance?" Alito asked, referring to a contention by Delaware that the LNG facility could be barred as a nuisance.

"Does each incidence need to be decided by us?" he added with exasperation, drawing laughter from the gallery.

After Justice David Souter asked Frederick whether he believed Delaware could bar the building of more piers on the Jersey side of the river, the attorney appeared to say yes, he thought so.

"I think you should give that one away," boomed Justice Antonin Scalia, referring to the position that Delaware had such power.

An interesting twist was presented by the absence of Justice Stephen Breyer, who owns BP stock and has recused himself from the case.

If the remaining eight justices divide equally in their decision, it is unclear what would happen, as a dispute between the states is normally decided by the high court.

Although a decision, expected by June, is likely to settle this issue, it may not resolve the animosity it has caused between the two states.

After Delaware denied the permits needed for the LNG facility, New Jersey threatened to withdraw its pension funds from Delaware banks.

Delaware lawmakers, in turn, proposed legislation to authorize the National Guard to defend its borders. Then a New Jersey legislator announced he was exploring the seaworthiness of the decommissioned battleship New Jersey, now docked in Camden, to find out whether it could be used to handle incursions from Delaware.