Dominion Transmission, Inc. v. Robert Summers
406 U.S. App. D.C. 215
| D.C. Cir. | 2013Background
- Dominion Transmission, Inc. received a FERC certificate of public convenience and necessity to build a natural gas compressor station in Myersville, Maryland, but needs a Maryland air quality permit to construct.
- Maryland Dept. of the Environment (the Department) denied processing Dominion’s air permit application twice, citing Md. Code § 2-404(b)(1) for lack of documentation proving local zoning approval or compliance.
- Dominion submitted FERC’s certificate and a letter arguing that federally preempted local zoning requirements are not “applicable” under § 2-404(b)(1), but the Department refused to process the application again, insisting on local-authority documentation.
- Dominion petitioned the court under 15 U.S.C. § 717r(d) (NGA expedited review) alleging the Department’s failure to grant, condition, or deny the permit was inconsistent with federal law and sought an order directing the Department to act.
- The Fourth Circuit considered jurisdictional objections (statutory requirements and Eleventh Amendment immunity) and whether the Department’s refusal was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under 15 U.S.C. § 717r(d) for "failure to act" | Dominion: Department’s refusal to issue/condition/deny is a "failure to act" and permits § 717r(d) review | Dept.: It did act (reviewed, found application inadequate, notified parties), so § 717r(d) does not apply | Court: § 717r(d) applies because Dept. refused to issue, condition, or deny the permit; jurisdiction exists |
| Eleventh Amendment immunity | Dominion: Maryland waived immunity by participating in CAA permitting or, alternatively, relief against state official is available under Ex Parte Young | Dept.: State immunity bars suit | Court: Ex Parte Young permits suit against Secretary for prospective relief; jurisdiction not barred |
| Preemption: whether NGA preempts § 2-404(b)(1) (state SIP provision) | Dominion: NGA preempts state/local requirements that conflict with FERC approval, so § 2-404(b)(1) cannot be applied to require compliance with preempted local laws | Dept.: § 2-404(b)(1) is part of Maryland’s SIP and not preempted by NGA | Court: § 2-404(b)(1) is incorporated into Maryland’s SIP (via COMAR) and thus not preempted by NGA |
| What documentation § 2-404(b)(1) requires and Dept.’s duty on remand | Dominion: § 2-404(b)(1)(ii) allows applicant to document compliance without a local-authority letter; FERC certificate can show preemption so the Dept. must identify non-preempted "applicable" local rules if any | Dept.: Only a letter or written statement from the local zoning authority satisfies § 2-404(b)(1); FERC certificate does not expressly preempt local rules | Court: Dept.’s rigid requirement of a local-authority letter is contrary to the statute; Dept. must determine which local rules (if any) remain "applicable" (not preempted) and either identify unmet applicable requirements or process the permit promptly |
Key Cases Cited
- Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (recognizing NGA’s comprehensive federal scheme over interstate natural gas)
- Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (Eleventh Amendment sovereign immunity principles)
- Verizon Md. v. Md. Pub. Serv. Comm’n, 535 U.S. 635 (Ex Parte Young analysis for prospective relief against state officials)
- Michigan v. EPA, 213 F.3d 663 (discussing CAA SIP and EPA’s role)
- Islander E. Pipeline Co., LLC v. Conn. Dep’t of Envt’l Protection, 482 F.3d 79 (waiver of state immunity in federal permitting context discussed)
- AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (standards for review under § 717r(d))
- PPG Indus., Inc. v. United States, 52 F.3d 363 (remand required when agency commits legal error)