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Authors

Joel M. Pratt

Keywords

Seattle University Law School, Seattle Journal for Environmental Law SJEL, Environmental Law, Litigation, Riparian Rights, Delaware River

Abstract

New Jersey and Delaware have often fought over their territorial boundaries in the Delaware River. Three times, they have litigated cases in the Supreme Court under the Court’s original jurisdiction to hear cases or controversies between states. In 1905, a Compact negotiated by the states and confirmed by Congress settled the first case between the two states. The second case between the two states led the Supreme Court to issue a Decree confirming the boundaries of the two states. The third case, which began in 2005, asked the Court to decide the scope of each state’s power to regulate development in the Delaware River. The Court came up with a compromise, argued for by neither state, which gave lasting effect to the 1905 Compact between the states while recognizing how water regulation has de-veloped over the last century. The Court’s resolution, though seem-ingly counterintuitive, can be best understood with reference to fed-eral and state common law principles. More important, however, is how the case was argued. Though it presented a traditional “envi-ronment v. the economy” debate, the party supporting the pro-envi-ronment argument (Delaware) did not argue it as such. This case, therefore, presents a roadmap to victory for environmentalists in front of the Roberts Court: to win an environmental case, it may be best to avoid mentioning the environment at all.

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