Close call at sea: Delaware's coastal zone act weathers a constitutional challenge

Delaware's Coastal Zone Act, in effect since 1971, has survived a recent constitutional challenge under the dormant Commerce Clause, brought by the Norfolk Southern Corporation. Norfolk Southern had sought to establish a coal transfer operation in the Delaware Bay, an activity that was found to be prohibited under the Coastal Zone Act. The Delaware law, which is incorporated into an approved coastal management program, prohibits new heavy industry and bulk product transfer facilities within the coastal zone. Whereas the U.S. Department of Commerce had approved the state's program, it chose to join Norfolk Southern as a “friend of the court.”; In the final decision, the law was upheld. However, the basis on which the decision was made raises some disturbing questions about the future of this and similar state coastal regulatory statutes. This paper presents a synopsis of the history of the case, followed by an in‐depth examination of the issues surrounding dormant Commerce Clause review, using the Norfolk Southern example as a springboard. It is shown that this area of constitutional analysis poses some potential problems of vulnerability and uncertainty for state coastal regulations in the context of national coastal zone management under the Coastal Zone Management Act of 1972 as amended. The paper concludes with an assessment of the implications of this and other court decisions for state efforts to regulate coastal land and water uses, given the points of potential vulnerability.