Accokeek, Mattawoman, Piscataway Creeks Communities Council, Inc. v. Maryland Public Service Commission
133 A.3d 1228
Md. Ct. Spec. App.2016Background
- Dominion sought PSC approval to build a 130 MW "islanded" electric generating station at its Cove Point LNG site to power a new LNG liquefaction/export facility; construction requires a state certificate under PUA §§ 7-207/7-208.
- Dominion applied in April 2013; the PSC held hearings, received PPRP (Power Plant Research Program) multi-agency review finding the site suitable if extensive conditions were imposed, and received voluminous public comment and local government support.
- AMP (Accokeek, Mattawoman, Piscataway Creeks Communities Council) intervened and opposed the certificate, arguing (inter alia) that the PSC improperly weighed economic benefits, lacked evidentiary support, imposed unlawful monetary conditions, and over-relied on the County Commissioners’ endorsement.
- The PSC granted the certificate subject to over 200 conditions, including modified monetary conditions requiring Dominion to contribute $40 million to the Strategic Energy Investment Fund (SEIF) over five years and $8 million over 20 years to low-income energy assistance (modified from Dominion’s initial proposals); Dominion accepted.
- AMP judicially reviewed; the circuit court affirmed, and AMP appealed to the Court of Special Appeals, which affirmed the PSC order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSC violated due process by failing to state numerical valuation of economic benefits | AMP: PSC had to identify the dollar value (or range) it assigned to the plant’s net economic benefit to permit meaningful challenge | PSC/Dominion: statute requires PSC to "consider" factors and provide sufficient findings; no formula or single numeric valuation required | Held: No due process violation; PSC provided adequate findings and considered required factors; no need to quantify a single dollar "A" value |
| Whether PSC's economic balancing is supported by substantial evidence | AMP: Record evidence mainly addressed the larger LNG project, not the isolated generating station, so substantial evidence is lacking | PSC/Dominion: Generating station is integrally tied to LNG project; testimony and PPRP analyses allowed reasonable inferences attributing a fraction of effects to the station | Held: Substantial evidence supported PSC’s conclusions; reasonable inferences (e.g., 5–20% attributions) suffice |
| Whether PSC exceeded authority by imposing $48M in payment conditions (taxes/fees) | AMP: Conditions are involuntary exactions tantamount to taxes and beyond PSC power | PSC/Dominion: Conditions are regulatory, within PSC's authority to condition certificates; payments were negotiated/accepted and targeted to mitigate project harms | Held: Payments are conditions tied to regulatory approval, not a tax in purpose/character; PSC acted within its conditional-approval authority (court did not decide whether they are regulatory fees) |
| Whether PSC acted arbitrarily by crediting County Commissioners’ unanimous support | AMP: County’s recommendation was based on support for entire LNG export project, not solely the generating station; PSC should have discounted it | PSC/Dominion: Statute separately requires "due consideration" of local governing body; PSC may accept recommendation without probing motives; the station and project are intertwined | Held: PSC permissibly gave weight to the County's recommendation; not arbitrary or capricious |
Key Cases Cited
- Potomac Elec. Power Co. v. Montgomery Cnty., 80 Md. App. 107 (1989) (describing statutory siting process and PSC considerations)
- Howard Cnty. v. Potomac Elec. Power Co., 319 Md. 511 (1990) (affirming administrative process principles)
- Mid-Atlantic Power Supply Ass’n v. Maryland Pub. Serv. Comm’n, 143 Md. App. 419 (2002) (agency need only consider statutory factors and the record must show such consideration)
- Baltimore Gas & Elec. Co. v. Pub. Serv. Comm’n of Maryland, 75 Md. App. 87 (1988) (requirements for adequate written findings by PSC)
- People’s Counsel v. Pub. Serv. Comm’n, 52 Md. App. 715 (1982) (weight of evidence and agency factfinding discretion)
- Eastern Diversified Props., Inc. v. Montgomery Cnty., 319 Md. 45 (1990) (test to decide whether a governmental exaction is a tax or regulatory fee)
- Workmen’s Comp. Comm’n v. Prop. & Cas. Ins. Guar. Corp., 319 Md. 1 (1990) (defining taxes as involuntary charges for public uses)
- Maryland Theatrical Corp. v. Brennan, 180 Md. 377 (1942) (distinguishing taxes from regulatory license fees)