DOMINION TRANSMISSION, INC. Plaintiff,
TOWN OF MYERSVILLE TOWN COUNCIL, Defendant.
Richard D. Bennett United States District Judge
Plaintiff Dominion Transmission, Inc. (“Dominion”) has brought this action seeking a declaratory judgment and injunctive relief against the Town of Myersville (the “Town”), the Town of Myersville Town Council (the “Town Council”), and Mayor Wayne S. Creadick, Jr. (“Mayor Creadick”). Specifically, Dominion seeks a declaration that the Town’s local laws and zoning code are preempted by the Natural Gas Act, 15 U.S.C. § 717 et seq., (the “NGA”) and an injunction to prevent the application of those laws to its plan to construct a natural gas compressor station (the “Compressor Station”) in the Town. Dominion has filed a Motion for Summary Judgment to that effect (ECF No. 17), and the issues were fully briefed by both parties. The Court has reviewed the parties’ submissions and held a hearing on September 26, 2013, pursuant to Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Plaintiff Dominion Transmission, Inc.’s Motion for Summary Judgment (ECF No. 17) is GRANTED IN PART and DENIED IN PART, specifically, those local laws that affect the siting and operation of the Compressor Station are null and void, and summary judgment is GRANTED, but injunctive relief is DENIED.
This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
The Plaintiff, Dominion Transmission, Inc., owns land located in the Town of Myersville, Maryland and seeks to construct and operate a natural gas compressor station on that property. Defs.’ Opp’n Memo., ECF No. 24-1, at 2. The Compressor Station would service an interstate pipeline and is part of a larger, multi-state project. The property on which Dominion seeks to construct its Compressor Station is zoned “General Commercial” under the Town’s zoning laws; however, the property has been super-imposed with an “Highway Employment Overlay District, ” which requires, inter alia, the submission of an overlay district master plan. The purpose of this master plan is to present “assurances that the development within the overlay zoning district will include the public facilities, amenities and other design features needed to support the greater density and design flexibility over and above that which would be required of the underlying zoning district.” Id. A party seeking to amend the master plan must submit the amendment to the Town for review and approval. Id. at 3.
In order to construct its Compressor Station, Dominion sought a number of permits and approvals. Specifically, Dominion sought (1) a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (“FERC”); (2) an amendment to the overlay district master plan for the Compressor Station site from the Town Council; and (3) an air quality permit from Maryland Department of the Environment (“MDE”).
Federal Energy Regulatory Commission Certification Process
On February 17, 2012, Dominion applied to the Federal Energy Regulatory Commission (“FERC”) for a Certificate of Public Convenience and Necessity. FERC ultimately approved the application on December 20, 2012, but the approval was subject to a variety of environmental compliance conditions and required Dominion to file documentation that it had “received all applicable authorizations required under federal law.” Pl.’s Compl. Ex C App’x B ¶ 8, ECF No.1-4 (hereinafter, “FERC Certification”). The Maryland Department of the Environment also retained authority to grant or deny air quality permits. Id. at ¶ 71. In addition, FERC’s order expressly states:
Any state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate. The Commission encourages cooperation between interstate pipelines and local authorities. However, this does not mean that state and local agencies, through application of state or local laws, may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.
Id. at Order, ¶ F. Finally, FERC made several express findings, including that (1) the Myersville site was the most appropriate site of the nine sites considered, id. at ¶ 64; (2) the Compressor Station would not have significant visual or audible effects on the surrounding areas, id. at ¶¶ 100, 118; and (3) that the Compressor Station was required by public convenience and necessity, id. at ¶ 66.
Thereafter, on January 22, 2013, the Town and the Myersville Citizens for Rural Community, Inc. filed for rehearing and reconsideration of the Certification. FERC denied the request on May 16, 2013.
Town Zoning Amendment Application Process
On April 5, 2012—during the pendency of the FERC proceedings—Dominion requested that the Town approve an amendment to master plan for the Compressor Station site. The Town applied its normal zoning procedures—public hearings were held, evidence taken, and ultimately, Dominion’s application was denied on August 27, 2012. Defs.’ Opp’n Memo., at 3. The grounds for the denial were based on the Town’s zoning code and local laws and specifically included: (1) the amendment’s inconsistency with the Town Comprehensive Plan; (2) the amendment’s inconsistency with the High Employment Overlay District requirements; (3) the hazard to public health and safety posed by the proposed use; (4) the nuisance caused by the noise generated from the proposed use; and (5) the failure to comply with the permitted uses in a High Employment Overlay District. See id.; Pl.’s Compl. Ex B, ECF No. 1-3. No appeal was taken from the Town’s decision.
Maryland Department of the Environment Air Quality Permit Application Process
Dominion initially filed for an air quality permit on February 1, 2012. This initial application was denied in June 2012 on the basis that Dominion had not submitted sufficient documentation to demonstrate compliance with local zoning laws as required by § 2-404 of the Environmental Article of the Maryland Code. Defs.’ Opp’n Memo., at 4. After FERC approved the Certificate of Public Convenience and Necessity, Dominion reapplied for an air quality permit with MDE. At this time, Dominion argued that its application should be processed because it was not required to comply with any local zoning laws because those laws were preempted by federal law, specifically the Natural Gas Act, 15 U.S.C § 717 et seq. Pl.’s Reply, ECF No. 28, at 2. Nevertheless, MDE again refused to process Dominion’s application.
Review in the United States Court of Appeals for the District of Columbia Circuit
Having been rebuffed in its attempts to obtain an air quality permit, Dominion filed a Petition for Review in the D.C. Circuit on February 1, 2013. There, Dominion argued that § 2-404(b)(1) was not part of Maryland’s State Implementation Plan (“SIP”) and, in the alternative, that Dominion had complied with § 2-404 because the local ...