Agenda - Planning Commission - 06/06/2013

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May 10, 2013 I Volume 7 ( Issue 9 Zoning Bulletin field of regulation that there is "no room left for the states to supple- ment federal law"; and (3) when federal and state law actually conflict. Here, the court found that none of those circumstances existed in re- lation to the PSA and the County Zoning Plans. The court held that the PSA did not expressly preempt the County Zoning Plans. Rather, the PSA expressly preempted state and local law in the field of pipeline safety (49 U.S.C.A. § 60104(c) (2006)) and the County Zoning Plans were not safety regulations but were land use regulations "designed to foster residential and recreational development." Moreover, said the court, even assuming safety concerns played some part in the enact- ment of the County Zoning Plans, those concerns would have been merely incidental to the overall purpose of the County Zoning Plans, and therefore insufficient to justify a finding that the County Zoning Plans were, in fact, safety regulations preempted by the PSA. "Because the County Zoning Plans [were] beyond the scope of the PSA's express preemption provision," the court also found it "unlikely" that the PSA impliedly preempted the County Zoning Plans. The court said that even if it "were to find that the PSA has preemptive effect be- yond the express preemption provision . . . [it] would not conclude that Congress intended the PSA to occupy the field of natural gas facil- ity siting" since the PSA expressly did "not authorize the Secretary of Transportation to prescribe the location or routing of a pipeline facility." (49 U.S.C.A. § 60104(e) (2006).) Also, the court also held that the PSA did not preempt the County Zoning Plans by conflict. Here, the court found that because the County Zoning Plans were not safety standards, they did not stand as an obsta- cle to the PSA's purpose of creating federal minimum safety standards on all natural gas pipeline facilities. Washington Gas had also argued that the NGA transferred jurisdic- tion over the enlargement or expansion of Washington Gas' facilities to the MDPSC .and that that delegation of authority preempted the County Zoning Plans. The Court of Appeals disagreed. The court held that -the NGA did not preempt the County Zoning Plans because the NGA only preempted state and local laws governing interstate natural gas operations, and here, Washington Gas, although crossing state lines, was treated as a local distribution company under a Federal Energy Regulatory Commission grant for service area determination. See also: Texas Midstream Gas Services, LLC v. City of Grand Prai- rie, 608 F.3d 200 (5th Cir. 2010). See also: Algonquin Lng v. Loqa, 79 F. Snapp. 2d 49, 147 O. G.R. 128 (D.R.I. 2000) (holding that a city zoning ordinance requiring the opera- tor of an interstate natural gas pipeline facility to obtain local zoning approval for a proposed modification was preempted by the NGA and PSA). 4 © 2013 Thomson Reuters