Why Should Delaware Care?
The board of the Diamond State Port Corporation have broad authority to negotiate the future of the Port of Wilmington, including its planned expansion in Edgemoor. Proponents of that project, including a slate of new port board nominees, say it would bring thousands of new jobs. But opponents point to environmental and economic concerns, including the project’s steep price tag to which taxpayers have already committed hundreds of millions of dollars.
The Delaware Supreme Court heard arguments Wednesday in a dispute between Gov. Matt Meyer and Senate Democrats over who gets to decide the makeup of a state board that oversees the Port of Wilmington — and notably directs the facility’s $635 million expansion.
The arguments – which largely hinged on a curious debate around the meanings of “nominate” and “appoint” – were the latest in a power struggle that has played out over the past month between Meyer, a self-proclaimed outsider, and leading state senators within his own Democratic Party.
The Delaware Supreme Court is expected to issue an advisory ruling on the dispute in March.
While the struggle is over appointments to the port’s oversight board, it also brings forth several issues that could dog Meyer’s first year as governor. Those include his apparent icy relationships with certain lawmakers and labor leaders, as well as his competing vision with them about how to carry out the state’s controversial and long-delayed plan to build a new port container terminal at the site of a former DuPont chemical plant at Edgemoor.
The current showdown began last month after then-Gov. Bethany Hall-Long submitted for Senate confirmation a slate of five new boardmembers to the Diamond State Port Corporation, the state-owned entity tasked with overseeing the Port of Wilmington.
The surprise nominations arrived at the Senate on the final day of Hall-Long’s two-week interim term as governor. Included as nominees were three labor leaders and former-Secretary of State Jeffrey Bullock, who for many years has served as chairman of the Port Corporation board.
The nominations also came a week after state officials expedited a transfer of nearly $200 million to the Port Corporation for the Edgemoor project, and a week after Senate Majority Leader Bryan Townsend sponsored a bill that would, in part, strip Meyer of the authority to nominate a chairperson for the Port Corporation’s board.
In all, the moves were roundly perceived as a political repudiation of Meyer, who just four months earlier had defeated Hall-Long to become the Democrats’ candidate for governor following a bitter primary election campaign.
The day after Hall-Long sent her nominations to the Senate, Meyer took office and among his first acts was to send a letter to the Delaware Senate, contending that he had withdrawn the new names nominated to the Port Corporation board.
In response, Senate Democrats, led by Senate President Pro Tem David Sokola, asserted that the nominees were viable. The following week the Senate Executive Committee held a hearing to consider four of the five nominations.
The day of the hearing saw competing verbal assaults sent out by the governor’s office and by the Senate Democrats – a rarity in Delaware where outward collegiality has been the norm.
The day ended with the two sides each asking the Delaware Supreme Court to issue an advisory opinion on the matter.
Among the questions to be answered by the state’s top judges were whether Meyer could withdraw the nominations, or whether he could refuse to commission them if they are ultimately confirmed by the full Senate.
Difference between nominate and appoint?
During the Supreme Court arguments on Wednesday, the discussion repeatedly turned to whether the Delaware Constitution grants the governor the right to “appoint” individuals to state boards, or “nominate” them.
An appointment would imply that the action is effectively set in stone, only needing the consent of the State Senate, while a nomination – a lighter term – would seemingly mean that the governor has the power to withdraw a name, even after it goes to the Senate.
Eric Juray, an attorney for the Senate Democrats, argued that a governor’s duty to choose members for state governing boards only involves his initial selection of that person – and therefore is an appointment. Afterward, the selection falls under the domain of the Senate, he indicated.
In contrast, Martin Lessner, attorney for the governor, argued that Meyer’s power to “nominate” individuals to state boards implies that he also has the authority to withdraw those names up until they are officially commissioned following a Senate confirmation.
During the hearing, the high court justices did not clearly indicate which arguments they favored, but they did interrogate Juray with more questions.
In particular, Justice Gary Traynor asked why a governors’ appointment could carry with it an implied finality if it still needs a confirmation vote from the Senate.
“Why is that reasoning faulty?” Traynor asked.
In response, Juray argued, in part, that the framers of Delaware’s Constitution knew the legal difference between the words appoint and nominate, and they would have made it clear in the state’s foundational document if they meant for governors to make nominations, he said.
Several influential Delawareans – including Sokola and prominent labor leaders – sat in the courtroom as the arguments played out in Dover.
Among them was William Ashe Jr., Delaware’s most influential port union leader and one of Hall-Long four board nominees. Earlier this month, Ashe criticized Meyer in an editorial in which he said the governor has made only “vague promises to ‘support the port.”
In a subsequent interview with the news media, Ashe further claimed that Meyer was “trying to do everything to derail” construction of an Edgemoor Port, which he said would create thousands of new jobs.
Despite the promise of jobs, the project has been hampered in past years by financial chaos at the Port of Wilmington and by opposition from neighbors and competing ports in Philadelphia and New Jersey.
Most recently, its progress stalled after a federal court last fall ruled that a permit to dredge a channel to the new port was invalid. Port officials say they have reapplied for the permit.
Last week, Meyer wrote his own op-ed about the Port of Wilmington’s expansion at Edgemoor.
In it, he said the project would be “one of the most significant public investments Delaware has ever made,” and he asserted that his administration is “going to be methodical and intentional with whom we select for the board of our state’s largest asset.”
One day before Meyer’s column ran in The News Journal, the container port plans suffered another blow when New Castle County Councilman John Cartier, who represents the Edgemoor area, became the first Delaware politician in several years to publicly oppose the project.
In an open letter, Cartier argued that the benefits of job creation are overwhelmed by concerns over “fiscal sustainability, public transparency, environmental impacts, transportation infrastructure, safety, and permitting processes.”
“In my view, these concerns have been largely overlooked,” Cartier said.
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