Agenda - Planning Commission - 06/06/2013

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Zoning Bulletin May 10, 2013 1 Volume 7 1 Issue 9 The Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia, FOURTH CIRCUIT (MARYLAND) (03/25/13) This case ad- dressed the issues of: whether the Natural Gas Pipeline Safety Act preempted county zoning plans; and whether the Natural Gas Act preempted county zoning plans. The Background/Facts: Washington Gas Light Company ("Wash- ington Gas") operated a natural gas substation in Prince George's County, Maryland (the "County"). Washington Gas sought to expand that substation with the addition of a liquefied natural gas ("LNG") storage tank. The County denied Washington Gas' requested approval of the LNG storage tank based on recently enacted county zoning plans (the "County Zoning Plans"). The County Zoning Plans were "aimed at maximizing `transit -oriented development' and prohibited all industrial usage in the area" that included Washington Gas' substation site (the "Site"). Following the denial of its proposed expansion, Washington Gas eventually brought a federal action seeking, among other things: (1) a declaration that the federal Natural Gas Pipeline Safety Act (the "PSA") preempted the County Zoning Plans; and (2) a declaration that the federal Natural Gas Act ("NGA") preempted the County Zoning Plans. Washington Gas argued that the PSA comprehensively regulated LNG facility siting and therefore the PSA preempted the County Zon- ing Plans. Washington Gas also argued that the NGA transferred juris- diction over the enlargement or expansion of Washington Gas' facili- ties to the Maryland Public Service Commission ("MDPSC") and that that delegation of authority preempted the County Zoning Plans. The County filed a counter -claim seeking a declaration that federal law did not preempt the County Zoning Plans. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judg- ment in favor of the County. DECISION: Affirmed. The United States Court of Appeals, Fourth Circuit, agreed with the County and the district court: neither the PSA nor the NGA preempted the County Zoning Plans. In so concluding, the court explained that under the Supremacy Clause of the United States Constitution, federal law is the "supreme Law of the Land." (U.S. Const. art. VI, cl. 2). Accordingly, federal law preempts any conflicting state law. Preemption, further explained the court, generally occurs in one of three circumstances: (1) when federal - law expressly declares the intention that state law be preempted; (2) ) when federal law impliedly preempts state law by so occupying the © 2013 Thomson Reuters 3