Natural Gas Regulation: Certificates of Public Convenience and Necessity Constitutional Law: Preemption

摘要

While Dominion was seeking in parallel litigation to force the Secretary of the Maryland Department of the Environment (MDOE) to hold hearings on its permit application for a natural gas compressor station, Dominion Transmission, Inc. v. Summers, 723 F.3d 238,181 O.&G.R. 978 (D.C. Cir. 2013), it also filed an action in federal District Court seeking to enjoin the application of the Town of Myersville's zoning ordinance to its proposed compressor station. The proposed location for the compressor station is in an area zoned for "General Commercial" uses under the Town's zoning ordinance. It is located in an overlay district that requires permit applicants to seek a change in the district master plan for proposed uses. The FERC certificate of public convenience and necessity specifically deals with the application of sub-state unit zoning and land use regulations. It requires any sub-state permit to be "consistent with the conditions of this certificate" and further states that state and sub-state actions may not prohibit or unreasonably delay the construction of the certificated facilities. Prior to the FERC's decision to grant the certificate, the Town denied Dominion's request to approve an amendment to the master plan. While this case was pending, the Summers case was decided and the MDOE was under a deadline of June 9, 2014 to render a decision on the pending air quality permit. During the MDOE remand process, Dominion sent in information showing compliance with the Town's performance standards at the proposed site. Dominion is seeking a declaratory judgment that the Town's zoning ordinance is preempted by the Natural Gas Act and that Dominion need not get further approval from the Town before it begins construction of the compressor station.