PHILADELPHIA - Entities with an interest in putting a port on the Delaware River in Delaware waited too long to join the court fight that recently put a block to their plan.
Philadelphia federal judge Mark Kearney on Nov. 21 refused to let Diamond State and Enstructure intervene in a case brought by Pennsylvania ports protecting their investment in deepening the river.
Though Delaware resisted the dredging and paid for none of it, Diamond State and Enstructure still proposed the Port at Edgemoor in Delaware. Kearney in October found the U.S. Army Corps of Engineers' approval of that port was improper.
Diamond State and Enstructure were not parties to the challenge and never motioned to intervene until Kearney's ruling, doing so now in order to appeal it.
"The non-parties offer no explanation for their delay other than they wanted to 'preserve resources' wile also admitting they have hundreds of millions of dollars at issue," Kearney wrote.
"The non-parties move to intervene so they can appeal last month's judgment resolving a case they chose to sit out."
Pennsylvania and the federal government are paying for a deepening project for the Main Navigation Channel of the Delaware River, which would allow large ships to have new access to Pennsylvania.
Delaware spent nothing and litigated against the MNC but once it was approved sought to benefit from it with a container port in Edgemoor, PhilaPort and two other plaintiffs claimed. PhilaPort had to contribute about $140 million but was worried the Delaware port would hurt its return on that investment.
The issue is complicated by where Edgemoor sits on the river. A tight turn near the shoreline necessitates deepening the river to 45 feet to give ships water and room to turn around and deliver their cargo.
In March 2020, Diamond State applied for a permit for an access channel - a 1,700-foot diameter turning basin - between the existing Delaware River Navigation Channel and the Edgemoor port that it said would increase traffic to Wilmington ports by 55% and net the state $383 million a year.
It provided environmental plans when it applied with the Corps of Engineers. PhilaPort submitted comments shortly after that said Diamond State hadn't applied for dredged material disposal permits, among other things.
Kearney vacated one of the permits because the Corps relied on traffic data submitted by Diamond State while dismissing concerns raised in comments and found safety concerns were "not applicable."
Another permit was vacated because the Corps did not determine if Diamond State sought a Statement of No Objection from PhilaPort. Kearney wrote the Corps can reconsider the permits with his findings in mind, like the Corps should have assessed the turning basin as a design element of the Edgemoor project.
The Corps also did not fully evaluate the navigation public interest factor, Kearney wrote. The Corps wrote the turning basin will not impact navigation in the Delaware River but comments said otherwise, he wrote.
Should the Corps - the actual defendant - appeal, it would be heard by the U.S. Court of Appeals for the Third Circuit. Kearney wrote non-parties are allowed to intervene in cases if they do so in a timely manner.
But Diamond State admitted to following the case closely while staying on the sidelines.
"We amended our schedules to meet the needs of the parties and allow for additional time," Kearney wrote. "We ruled on dispositive motions for summary judgment, closing one of the cases and mooting the other.
"Diamond State and Enstructure admit knowing of all of these developments. They never said a word. Their lawyer sat silently in the courtroom during oral argument watching the lawyers and judge work through the issues.
"They instead argue they decided to conserve their resources and sit out the litigation. Diamond State and Enstructure fully admit to sitting on their hands as a strategic decision. This tactic is blatantly unfair to the diligent parties before us."