Posted on November 18, 2024
Delaware wants to enter what to this point has been a proxy war waged in court by upriver ports against the state’s plans to build a modern container terminal on the Delaware River at Edgemoor.
This week, the Diamond State Port Corp., the quasi-public entity that oversees the Port of Wilmington, filed a motion to intervene in a lawsuit filed by upriver ports against the U.S. Army Corps of Engineers. The lawsuit has successfully blocked permits necessary for the state’s planned construction of a new, $635 million container terminal at Edgemoor.
Last month, a judge presiding over the lawsuit ruled that the Army Corps had not followed its own rules in approving permits necessary for Delaware’s port plans. The ruling revoked the permits and amounted to a massive setback in Delaware’s port plans.
The project is being funded by a mix of state and federal dollars as well as a partnership with Enstructure, a private company that operates the current port and would operate the new facility at Edgemoor. Officials have described the port expansion as the most important new infrastructure project in Delaware since Route 1 and hope it will create thousands of jobs.
But for years, the Port of Philadelphia (PhilaPort) and its operators have raised a series of legal, regulatory and political challenges to block the project, arguing that the new Delaware River terminal would siphon business away from Philadelphia terminals and hinder ship traffic upriver.
Last month’s ruling was the first challenge that stuck, sending Delaware officials back into lengthy and complicated permitting negotiations with the Army Corps. Operators of the Port of Philadelphia and the Gloucester Marine Terminal in New Jersey were the plaintiffs that sued the Army Corps over the permitting issue.
The state’s motion to intervene was filed by DSPC well as Enstructure. They argue that the upriver ports have “weaponized” the permitting process for their own economic benefit. In a written statement, Delaware Secretary of State Jeff Bullock said the purpose of the motion is “in part” to address what he described as misinformation promoted by Philaport.
“We are simultaneously working closely with the US Army Corps of Engineers to address any concerns raised in the court’s ruling,” Bullock wrote. “We are not going to be bullied by anyone who threatens Delaware’s economy and future jobs in our state.”
The more tactical purpose of the filing also appears to be an attempt to ensure there is an appeal of the ruling that revoked the permits.
The motion argues that DSPC and Enstructure, while not parties to the lawsuit, are the primary beneficiaries of the now revoked permits and so they should have legal standing to appeal the ruling. The filing notes that DSPC and Enstructure “does not know” whether the Army Corps intends to appeal the revocation ruling, so they should be given standing to do so.
