Mountain Valley Pipeline, LLC v. Wender

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

MOUNTAIN VALLEY PIPELINE, LLC,

Plaintiff,

v. Civil Action No. 2:17-cv-04377

MATTHEW D. WENDER, in his

official capacity as President

of the County Commission of

Fayette County, West Virginia;

DENISE A. SCALPH, in her

official capacity as a

Commissioner of the County

Commission of Fayette County,

West Virginia; and JOHN G.

BRENEMEN, in his official

capacity as a Commissioner of

the County Commission of

Fayette County, West Virginia,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is plaintiff Mountain Valley Pipeline, LLC’s

(“Mountain Valley”) motion for summary judgment, filed February

5, 2018.

I. Background

The material facts of this case are undisputed and

relatively simple. Mountain Valley is a natural gas company

within the meaning of the Natural Gas Act (“NGA” or the “Act”),

15 U.S.C. §§ 717 et seq.1 Consequently, it is subject to the

jurisdiction of the Federal Energy Regulatory Commission

(“FERC”). Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 295

(1988). Defendants Matthew D. Wender, Denise A. Scalph, and

John G. Brenemen comprise the County Commission in Fayette

County, West Virginia (the “Commissioners”). (See Verified

Compl. ¶ 12.)

On October 13, 2017, Mountain Valley received from

FERC a certificate of public convenience and necessity (the

“certificate”), authorizing the construction of a 303.5-mile

long natural gas pipeline of 42-inches in diameter stretching

from Wetzel County, West Virginia, to Pittsylvania County,

Virginia. See Mountain Valley Pipeline, LLC, Equitrans, L.P.

(“Certificate”), 161 FERC P 61,043, at ¶¶ 7, 310(A) (Oct. 13,

2017). The certificate is conditioned on, inter alia, Mountain

Valley completing the pipeline and placing it in service within

three years from the certificate’s issuance. Id. ¶ 310(C)(1).

Additionally, the certificate instructs the following:

Any state or local permits issued with respect to the

jurisdictional facilities authorized herein must be

consistent with the conditions of this certificate.

We encourage cooperation between interstate pipelines

1 A “[n]atural-gas company” is “a person engaged in the

transportation of natural gas in interstate commerce, or the

sale in interstate commerce of such gas for resale,” while a

“person” can be either “an individual or a corporation.” 15

U.S.C.S. §§ 717a(1) and (6) (LexisNexis 2018).

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. ¶ 309 (citing, inter alia, Schneidewind, 485 U.S. at 310,

and Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 245

(D.C. Cir. 2013)). On June 15, 2018, FERC denied requests for

rehearing on the issuance of the certificate. See Mountain

Valley Pipeline, LLC, Equitrans, L.P., 163 FERC P 61,197, at ¶ 5

(June 15, 2018).

Pertinent here, Mountain Valley’s certificate

authorizes construction of the Stallworth Compressor Station

(the “Stallworth Station”) on property in Fayette County owned

by Mountain Valley (the “Stallworth Property”). (Verified

Compl. ¶ 24.) The Stallworth Property is comprised of three

tracts of land totaling about 131 acres. (Declaration of Robert

J. Cooper (“Cooper Decl.”) ¶¶ 5, 7.) The construction and

operation of the Stallworth Station will impact a limited number

of those acres, with around thirty acres needed for construction

that reduces to around seven acres for operation. (Id. ¶ 7.)

On January 29, 2018, FERC granted Mountain Valley permission to

proceed with construction of the Stallworth Station. (Comm’rs

Resp. Ex. 2.)

The Stallworth Property is currently designated a “R-R

Rural-Residential” zone under the Fayette County Unified

Development Code (the “UDC” or the “Fayette Zoning Code”). See

UDC § 2001.4; (Verified Compl. ¶ 55).2 To situate the Stallworth

Station there in compliance with the Fayette Zoning Code, the

Stallworth Property must be re-zoned a “H-1 Heavy Industrial”

zone. See UDC § 4002; (Verified Compl. ¶ 56). Then, before

beginning construction, Mountain Valley must obtain an

“improvement location permit,” UDC § 1006, Part II, and a state

building permit, id. § 5001. (Verified Compl. ¶¶ 52-54.) On

August 2, 2017, Mountain Valley applied to re-zone the

Stallworth Property. (Verified Compl. ¶ 57.) The Commissioners

ultimately denied that request on November 17, 2017. (Id. ¶

68.) Robert J. Cooper, “the Senior Vice President of

Engineering and Construction at Mountain Valley,” declares that

Mountain Valley will suffer irreparable economic and non-

economic harms resulting from delayed construction, such as lost

revenue, modifications to Mountain Valley’s construction

schedule, and a diminished reputation. (See Cooper Decl. ¶¶ 1,

12-21.)

2 The UDC is available at http://fayettecounty.wv.gov/zoning/

Pages/default.aspx.

Mountain Valley initiated this action the same day the

Commissioners denied its re-zoning application, invoking the

court’s federal question jurisdiction under 28 U.S.C. § 1331.

(Verified Compl. ¶ 9.) Mountain Valley requests declaratory

judgment that the NGA preempts the Fayette Zoning Code insofar

as it applies to the property deemed by FERC to be necessary in

the siting, construction, and operation of the Stallworth

Station. (Id. ¶¶ 8, 78-86.)3 Additionally, Mountain Valley

seeks to permanently enjoin the defendants from “attempting to

enforce or rely on the Fayette [Zoning Code] to interfere with

or prevent [Mountain Valley’s] construction of the Stallworth

Station.” (Id. ¶ 8, 87-92.)

II. Governing Standard

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). In reviewing a motion for summary

3 Mountain Valley also seeks declaratory judgment that the

Fayette Zoning Code is preempted by the Pipeline Safety Act, 49

U.S.C. §§ 60101 et seq. (Id. ¶ 8.) In its reply, however,

Mountain Valley stated that “because NGA preemption is enough to

support the relief that [Mountain Valley] seeks in this action,

the Court need not issue a ruling on the preemptive effects of

the [Pipeline Safety Act] in this proceeding.” (Mountain Valley

Reply 14 n.22.)

judgment, the court is guided by the principle that it must

“construe the evidence, and all reasonable inferences that may

be drawn from such evidence, in the light most favorable to the

nonmoving party.” Dash v. Mayweather, 731 F.3d 303, 310 (4th

Cir. 2013) (citing PBM Prods., LLC v. Mead Johnson & Co., 639

F.3d 111, 119 (4th Cir. 2011)).

“As to materiality, . . . [o]nly disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.

Factual disputes that are irrelevant or unnecessary will not be

counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Regarding genuineness, “summary judgment will not lie

if the dispute about a material fact is ‘genuine,’ that is, if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.; see also S.B. v. Bd. of

Educ., 819 F.3d 69, 74 (4th Cir. 2016) (quoting Perini Corp. v.

Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)). The

moving party must first “‘show[]’ - that is, point[] out to the

district court - that there is an absence of evidence to support

the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986).

If the movant carries its burden, the non-movant must

demonstrate that “there is sufficient evidence favoring [it] for

a jury to return a verdict” in its favor. Anderson, 477 U.S. at

249 (citation omitted); see also Dash, 731 F.3d at 311. As

explained by our circuit court of appeals,

[a]lthough the court must draw all justifiable

inferences in favor of the nonmoving party, the

nonmoving party must rely on more than conclusory

allegations, mere speculation, the building of one

inference upon another, or the mere existence of a

scintilla of evidence. See Anderson, 477 U.S. at 252;

Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th

Cir. 1997). Rather, “a party opposing a properly

supported motion for summary judgment . . . must ‘set

forth specific facts showing that there is a genuine

issue for trial.’” Bouchat v. Balt. Ravens Football

Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting

Fed. R. Civ. P. 56(e) (2002) (amended 2010)).

Dash, 731 F.3d at 311 (alteration in original).

III. Discussion

The Commissioners argue at the outset that Mountain

Valley’s motion for summary judgment “should be denied as

premature because FERC is considering rehearing requests, and

because there are multiple legal challenges to the FERC

Certificate, any of which may invalidate the Certificate.”

(Comm’rs Resp. 6; Comm’rs Sur-reply 2-3.) On the contrary, this

court recently recognized in Mountain Valley’s related

condemnation action that “a FERC order remains in effect unless

FERC or a court of appeals issues a stay, see 15 U.S.C. §

717r(c), and no such stay has been issued here.” Mountain

Valley Pipeline, LLC v. An Easement to Construct, Operate &

Maintain a 42-Inch Gas Transmission Line, No. 2:17-cv-04214,

2018 U.S. Dist. LEXIS 28755, at *20 (S.D. W. Va. Feb. 21, 2018).4

Furthermore, as earlier noted, FERC denied the rehearing

requests on June 15, 2018, after the close of briefing on the

pending motion in this case. Thus, the Commissioners’ initial

arguments are without merit, and the court turns to Mountain

Valley’s requests for declaratory judgment and injunctive

relief.

4 On July 27, 2018, the Fourth Circuit vacated the decisions of

the Bureau of Land Management and the Forest Service authorizing

construction of Mountain Valley’s project through federal lands

and remanded to those agencies to address the issues identified

in the appellate court’s decision. See Sierra Club, Inc. v.

U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018). On August 3,

2018, in response to the Fourth Circuit’s decision, FERC

notified Mountain Valley that it must cease all construction

activities except necessary measures to stabilize rights of way

and workspaces; later, on August 15, 2018, FERC permitted

Mountain Valley to resume construction on the first seventy-

seven miles of the project. See August 3 Notification of Stop

Work Order, https://www.documentcloud.org/documents/ 4637748-

FERC-MVP-Stop-Work-Order-August-2018.html; August 15 Stop Work

Order Modification, https://www.documentcloud.org/documents

/4775717-MVP-FERC-Stop-Work-Order-Modification.html.

Importantly, FERC’s stop work order does not operate to stay

Mountain Valley’s certificate, and FERC noted that “[t]here is

no reason to believe that the [federal agencies] will not be

able to comply with the [Fourth Circuit’s] instructions.”

August 3 Notification of Stop Work Order.

A. Declaratory Judgment - Actual Controversy

The Commissioners contend that there is no “actual

controversy” from which the court may enter a declaratory

judgment. (See Comm’rs Resp. 10-11.) The Declaratory Judgment

Act requires, among other things, that an “actual controversy”

exist prior to the entry of declaratory relief. See 28 U.S.C.S.

§ 2201(a). Since “the operation of the Declaratory Judgment Act

is procedural only,” the “actual controversy” to which the

Declaratory Judgment Act refers is Article III’s cases-and-

controversies standing requirement. See Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240 (1937); see also MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 126-27 (2007) (“[T]he phrase

‘case of actual controversy’ in the [Declaratory Judgment] Act

refers to the type of ‘Cases’ and ‘Controversies’ that are

justiciable under Article III.”). In the context of declaratory

judgment, an actual controversy has been defined as one “of

sufficient immediacy and reality to warrant the issuance of”

declaratory relief. Md. Cas. Co. v. Pac. Coal & Oil Co., 312

U.S. 270, 273 (1941) (citing Aetna Life Ins., 300 U.S. at 239-

42); see also Am. Whitewater v. Tidwell, 770 F.3d 1108, 1119

(4th Cir. 2014).

The immediacy and reality of the controversy here is

clear. Mountain Valley’s certificate, issued by FERC,

authorizes the construction of the Stallworth Station on the

Stallworth Property. Mountain Valley has also applied to re-

zone the Stallworth Property to the appropriate designation that

allows for the targeted construction and use. The Commissioners

denied that application. Mountain Valley now challenges the

constitutionality of the Fayette Zoning Code on preemption

grounds insofar as it applies to the Stallworth Station.

These facts alone are enough to establish a sufficiently

immediate and real controversy to warrant consideration of

declaratory relief. See Steel Hill Dev., Inc. v. Sanbornton,

335 F. Supp. 947, 951 (D.N.H. 1971) (finding an actual

controversy where a plaintiff “submitted a subdivision plan for

approval” but “the zoning amendments prohibit him from

subdividing and selling substantial portions of his property”);

10B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2757 (4th ed.) (“There is little difficulty in

finding an actual controversy if all of the acts that are

alleged to create liability already have occurred.”); cf. EQT

Prod. Co. v. Wender, 191 F. Supp. 3d 583, 593-94 (S.D. W. Va.

2016) (finding that a plaintiff had standing to challenge a

county ordinance that only “uncertain[ly]” impacted the

plaintiff’s operations).

Mountain Valley also indicates that it has refrained

from building the Stallworth Station because of a threat of

enforcement pursuant to the Fayette Zoning Code. (See Verified

Compl. ¶ 73.) The Commissioners point out that Mountain

Valley’s refrainment is belied by the evidence showing that it

has already begun construction activities. (See Comm’rs Sur-

reply Ex. 2.) Mountain Valley replies that its activities to-

date do not constitute “construction activities . . . that are

prohibited by the” Fayette Zoning Code. (Mountain Valley Sur-

resp. 6 (emphasis omitted).)

Regardless, the Commissioners in their answer

acknowledge “that if Plaintiff violates the law [then] legal

recourse will ensue.” (Answer ¶ 73.) And the Fayette Zoning

Code allows for such recourse through “[a]ppropriate actions and

proceedings,” such as civil penalties, abatement, correction of

the violation, and referral to the county prosecutor for

criminal prosecution. See UDC §§ 1003.VII.5 As the Supreme

Court has explained,

5 The Fayette Zoning Code attempts to incorporate various

enforcement provisions from chapter 8, article 24 of the West

Virginia Code, which evidently imposed criminal sanctions. See

id. That article of the West Virginia Code has been repealed.

Nevertheless, chapter 8A, article 10 of the West Virginia Code

now governs enforcement of county and municipal land use

planning ordinances, which contemplates both civil and criminal

penalties. See W. Va. Code Ann. §§ 8A-10-1 (common nuisance), -

2 (misdemeanor), -3 (injunctive relief).

where threatened action by government is concerned, we

do not require a plaintiff to expose himself to

liability before bringing suit to challenge the basis

for the threat - for example, the constitutionality of

a law threatened to be enforced. The plaintiff’s own

action (or inaction) in failing to violate the law

eliminates the imminent threat of prosecution, but

nonetheless does not eliminate Article III

jurisdiction.

MedImmune, 549 U.S. at 128-29 (emphasis omitted); see also id.

at 129 (discussing Supreme Court precedent and concluding that

“putting [a plaintiff] to the choice between abandoning his

rights or risking prosecution [] is a dilemma that it was the

very purpose of the Declaratory Judgment Act to ameliorate”

(quotation marks omitted)).

The Commissioners suggest that Mountain Valley has

“manufactured” the immediacy and reality of its claim through

“self-inflicted” harms, such as a self-imposed in-service

deadline, speculation as to lost revenues, and delay in applying

to re-zone. (See Comm’rs Sur-reply 3-4.) The Commissioners

look for support in Mountain Valley’s precedent shipping

agreements, which the Commissioners insist show that Mountain

Valley contemplated trouble receiving all necessary permits,

including zoning permits. (See id. 4-6.) Whether Mountain

Valley’s harms are self-inflicted is immaterial here. In short,

Mountain Valley has a certificate from FERC authorizing the

construction of the Stallworth Station, and the Commissioners

denied Mountain Valley’s application to re-zone the Stallworth

Property to the proper designation. Moreover, the Fayette

Zoning Code allows for the imposition of civil penalties and the

prosecution of a criminal action for zoning violations. As

noted, those facts create an actual controversy, and the court

may therefore consider Mountain Valley’s request for a

declaratory judgment.

B. Declaratory Judgment - Preemption

The Supremacy Clause states that federal law is “the

supreme Law of the Land . . . any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S. Const.

art. VI, cl. 2. Consequently, Congress maintains the authority

to preempt state law through federal legislation. Oneok, Inc.

v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015). Whether

Congress has exercised that authority is “guided first and

foremost by the maxim that ‘the purpose of Congress is the

ultimate touchstone in every pre-emption case.’” Epps v. JP

Morgan Chase Bank, N.A., 675 F.3d 315, 322 (4th Cir. 2012)

(quoting Wyeth v. Levine, 555 U.S. 555, 564 (2009)). Further,

the preemption analysis is built on “the assumption that the

historic police powers of the States [are] not to be superseded

by . . . Federal Act unless that [is] the clear and manifest

purpose of Congress.” Cipollone v. Liggett Grp., 505 U.S. 504,

516 (1992) (alterations in original) (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)).

Congress may explicitly or implicitly preempt state

law. Oneok, 135 S. Ct. at 1595; see Wash. Gas Light Co. v.

Prince George’s Cty. Council, 711 F.3d 412, 419-20 (4th Cir.

2013) (describing the three methods of federal preemption:

express preemption, field preemption, and conflict preemption).

Only implicit preemption, whether it be field or conflict, is at

issue here. Specifically, Mountain Valley argues that the NGA

invalidates the Fayette Zoning Code insofar as it applies to the

Stallworth Station through field preemption and conflict

preemption. (See, e.g., Verified Compl. ¶¶ 80, 82.)

1. Field Preemption

Field preemption arises where “Congress may have

intended ‘to foreclose any state regulation in the area,’

irrespective of whether state law is consistent or inconsistent

with ‘federal standards.’” Oneok, 135 S. Ct. at 1595 (emphasis

omitted) (quoting Arizona v. United States, 567 U.S. 387, 401

(2012)). “Actual conflict between a challenged state enactment

and relevant federal law is unnecessary to a finding of field

preemption; instead, it is the mere fact of intrusion that

offends the Supremacy Clause.” PPL EnergyPlus, LLC v. Nazarian,

753 F.3d 467, 474 (4th Cir. 2014) (citing N. Nat. Gas Co. v.

State Corp. Comm’n, 372 U.S. 84, 97-98 (1963)).

The preemptive effect of the NGA is well-settled: “The

NGA confers upon FERC exclusive jurisdiction over the

transportation and sale of natural gas in interstate commerce

for resale.” Schneidewind, 485 U.S. at 300-01 (citing N. Nat.

Gas Co. v. State Corp. Comm’n, 372 U.S. at 89); see also Wash.

Gas Light, 711 F.3d at 423. Nevertheless, “the [NGA] ‘was drawn

with meticulous regard for the continued exercise of state

power, not to handicap or dilute it in any way.’” Oneok, 135 S.

Ct. at 1599 (quoting Panhandle E. Pipe Line Co. v. Pub. Serv.

Comm’n of Ind., 332 U.S. 507, 517-18 (1947)). In the NGA

context, the Supreme Court “emphasize[s] the importance of

considering the target at which the state law aims in

determining whether that law is pre-empted.” Id. (emphasis

omitted). The relevant “[s]tatutory text and structure provide

the most reliable guideposts in this inquiry.” PPL EnergyPlus,

753 F.3d at 474 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470,

486 (1996)).

The Fourth Circuit holds that “the NGA gives FERC

jurisdiction over the siting of natural gas facilities, as a

natural gas company must obtain a certificate of public

convenience and necessity from FERC before constructing an

interstate natural gas facility.” Wash. Gas Light, 711 F.3d at

423 (citing 15 U.S.C. § 717f(c)(1)(A) (2006)); see also N. Nat.

Gas Co. v. Iowa Utils. Bd., 377 F.3d 817, 821 (8th Cir. 2004);

Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571,

579 (2d Cir. 1990). Analysis of FERC’s implementing regulations

is illustrative of our appellate court’s conclusion and helpful

in comparing the NGA against the Fayette Zoning Code.

Pertinently, the NGA’s certificate regulations implementing the

National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §

4321 et seq.,6 address the physical placement of facilities over

which FERC has jurisdiction (“jurisdictional facilities”). See

18 C.F.R. § 380.12 (2018).

6 NEPA imposes procedural requirements aimed at “major federal

actions that may significantly affect the natural environment.”

Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th

Cir. 2005). Its purpose is twofold:

[First, to] ensure that an agency planning a major

federal action obtains and considers the necessary

information concerning any significant environmental

impacts that the action may cause. Hodges v. Abraham,

300 F.3d 432, 438 (4th Cir. 2002). [Second, to]

guarantee that the public has access to the relevant

information about the proposed action so that it can

participate in the decisionmaking process. Id.

Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 417 (4th Cir.

2012). NEPA requires the preparation of an environmental impact

statement containing relevant information for such federal

actions. Id.

FERC’s NEPA implementing regulations require an

applicant to prepare reports containing the following items and

information, in broad terms:

A. Maps showing the physical location of jurisdictional

facilities and associated land requirements, including “the

location of the nearest noise-sensitive areas . . . within

1 mile of [any] compressor station,” and descriptions of

any “reasonably foreseeable plans for future expansion of

facilities,” id. § 380.12(c);

B. Descriptions of impacted water use and quality, fish and

wildlife, vegetation, cultural resources, geological

resources, and soils; how these items will be impacted by

the jurisdictional facility; and proposed measures to

mitigate and minimize those impacts, id. §§ 380.12(d)-(f),

(h)-(i);

C. For projects “involving significant aboveground

facilities,” an analysis of the socioeconomic impact on

“towns and counties in the vicinity of the project,” id. §

380.12(g);

D. Descriptions of existing land uses on and within 0.25

miles of the jurisdictional facility, consequential changes

to those uses, and proposed mitigation measures, id. §

380.12(j);

E. For compressor stations, the impact “on the existing air

quality and noise environment” as well as a “descri[ption

of] proposed measures to mitigate th[ose] effects,” id. §

380.12(k); and

F. Descriptions and comparisons of alternatives, id. §

380.12(l).

Moreover, FERC instructs applicants to “avoid[] or

minimize[] effects on scenic, historic, wildlife, and

recreational values.” Id. § 380.15(a). When siting an

aboveground jurisdictional facility, FERC also mandates that an

applicant consider the obtrusiveness of the site and the noise

potential of the facility; design the facility in a manner that

occupies minimum land and is in harmony with its surroundings;

and enhance the landscape of the facility where it is visible to

residential or public areas. Id. § 380.15(g). The NEPA reports

mandated by FERC must be submitted as an exhibit to a

certificate application. Id. § 157.14(a)(7).

A reading of the foregoing regulations shows that

Congress intends for FERC, as part of its “exclusive

jurisdiction over the transportation and sale of natural gas in

interstate commerce for resale,” Schneidewind, 485 U.S. at 300-

01, to occupy the field of siting jurisdictional facilities.

Wash. Gas Light, 711 F.3d at 423. Thus, any state or local law

that purports to target the field of siting a jurisdictional

facility is preempted.

Although it seems uncontroversial that a zoning

ordinance would fall in the field occupied by the NGA and FERC,

the Supreme Court instructs that the ordinance must nonetheless

“target” the preempted field. Oneok, 135 S. Ct. at 1599. The

express purposes of the Fayette Zoning Code are as follows:

A. Protect and encourage the health, safety, and

general welfare of the present and future population

of Fayette County.

B. Guide the future growth and development of Fayette

County in accordance with the adopted Comprehensive

Plan.[7]

C. Encourage growth and development in areas where

sewer, water, schools, and other public facilities

are, or will, soon be available in order to provide

services in the most cost-effective manner.

D. Insure that growth and development are both

economically and environmentally sound.

E. Encourage an agricultural base in the County.

F. Encourage an improved appearance of Fayette County

with relationship to the use and development of land

and structures.

G. Encourage the conservation of natural resources.

H. Provide a guide for public action and the orderly

and efficient provision of public facilities and

services.

I. Provide a guide for private enterprise in

developing and building a community with healthy

businesses and tightly knit neighborhoods.

J. Encourage historic preservation.

UDC §§ 1001.II.A to J. Specifically, the Fayette Zoning Code

regulates the location of “gas . . . transmission lines . . .

7 The “Comprehensive Plan” is “[a] composite of mapped and

written text, the purpose of which is to guide the systematic

physical development of the County and is adopted by the County

Commission.” UDC § 1002.II. Fayette County adopted its

Comprehensive Plan as “a vehicle through which local government

officials and citizens can express their goals for the future of

their community.” Comprehensive Plan Ch. 1, Part III (Adopted

2001), available at http://fayettecounty.wv.gov/

zoning/Pages/default.aspx. In other words, the Comprehensive

Plan is a roadmap for the future, providing for the ideal

development of property within Fayette County, and the Fayette

Zoning Code is designed to facilitate that development.

and appurtenances” by requiring that they be located in a zone

designated “H-1 Heavy Industrial.” Id. § 4002.

Plainly, the Fayette Zoning Code targets the siting of

jurisdictional facilities. FERC’s NEPA implementing regulations

cover most, if not all, of the Fayette Zoning Code’s enumerated

purposes. Compare 18 C.F.R. §§ 380.12, 380.15 with UDC §

1001.II.A to J. And more importantly, the Fayette Zoning Code

explicitly targets the location of jurisdictional facilities

through the “H-1 Heavy Industrial” zoning designation. UDC §

4002.

The Commissioners nevertheless insist that the Fayette

Zoning Code does not target jurisdictional facilities since it

“applies to all property located within Fayette County,”

(Comm’rs Resp. 14), but that position is belied by the Fayette

Zoning Code’s explicit language regarding gas transmission lines

and appurtenances, UDC § 4002. Even if the Fayette Zoning Code

had not explicitly mentioned gas transmission lines and

appurtenances, it would nevertheless be preempted because it

unquestionably aims at regulating the location of jurisdictional

facilities - the field occupied by the NGA and FERC. See Oneok,

135 S. Ct. at 1599-1600.

That the Fayette Zoning Code is preempted by the NGA

and FERC is further bolstered “by the imminent possibility of

collision between [the Fayette Zoning Code] and the NGA” and

FERC’s regulations. Schneidewind, 485 U.S. at 310 (citing N.

Nat. Gas Co. v. State Corp. Comm’n, 372 U.S. at 91-93, and

Maryland v. Louisiana, 451 U.S. 725, 751 (1981)). While not

dispositive, such a possibility lends support to the preemptive

effect of the NGA over the state or local law at issue because

the state or local law could impair FERC’s ability to

comprehensively and uniformly regulate the transportation of

natural gas across state lines. See id. In fact, the federal

and local laws here have already collided.

The Commissioners advance several arguments against

Mountain Valley’s requested declaratory relief. They contend

that Congress’s 2005 amendment to the portion of the NGA

addressing “LNG terminals”8 negates the Act’s well-settled

preemptive nature. (See Comm’rs Resp. 13.) The 2005 amendment

granted FERC “exclusive authority to approve or deny an

application for the siting, construction, expansion, or

8 A LNG (liquid natural gas) terminal “includes all natural gas

facilities located onshore or in State waters that are used to

receive, unload, load, store, transport, gasify, liquefy, or

process natural gas that is imported to the United States from a

foreign country, exported to a foreign country from the United

States, or transported in interstate commerce by waterborne

vessel.” 15 U.S.C.S. § 717a(11). LNG terminals are further

defined not to include “any pipeline or storage facility subject

to the jurisdiction of [FERC] under section 7” of the NGA. Id.

§ 717a(11)(B).

operation of an LNG terminal.” Energy Policy Act of 2005, Pub.

L. No. 109-58, § 311, 119 Stat. 594, 685-86 (2005). The

definition of an “LNG terminal” expressly excludes facilities

that must obtain a certificate of public convenience and

necessity pursuant to section 7 of the NGA, such as the

Stallworth Station. See id. Because Congress did not similarly

grant FERC “exclusive authority” over pipelines and compressor

stations, the Commissioners suggest that Congress intended to

withhold from FERC preemptive authority over pipelines and

compressor stations. (See Comm’rs Resp. 13.)9

There are two most prominent reasons why the

Commissioners’ argument is unavailing. First, the 2005

amendments to the NGA addressed the specific and limited field

of LNG terminals, which, as earlier defined, are “onshore or in

State waters” facilities used in the importing and exporting of

liquid natural gas. § 311, 119 Stat. at 685-86. Those

amendments did not, however, alter the sections from which FERC

9 Separately, the Commissioners note that a decision upon which

Mountain Valley heavily relies improperly construed the 2005

amendments as applying to such facilities. (Comm’rs Resp. 13-14

(citing Dominion Transmission, Inc. v. Town of Myersville Town

Council, 982 F. Supp. 2d 570, 577 (D. Md. 2013)).) In Town of

Myersville, the plaintiff sought to build a compressor station

within the defendant-town’s boundaries as part of a multistate

pipeline project. 982 F. Supp. 2d at 572. The court concluded

that the NGA preempted the town’s zoning code, relying on the

2005 amendment to the NGA even though the compressor station at

issue does not appear to be a LNG terminal. See id. 576-79.

receives its preemptive power over the field of transporting and

selling natural gas in interstate commerce. Compare id.

(amending sections 1, 2, and 3 of the NGA) with Iowa Utils. Bd.,

377 F.3d at 821 (stating that section 7 of the NGA “specifically

provides that the FERC will oversee the construction and

maintenance of natural gas pipelines through the issuance of

certificates of public convenience and necessity”). It follows

that FERC’s field-preemptive authority under section 7 was also

unaltered. And second, Congress’s grant of “exclusive

authority” is an express preemption clause. See AES Sparrows

Point LNG, LLC v. Smith, 527 F.3d 120, 125-26 (4th Cir. 2008).

So it does not matter that FERC lacks such “exclusive authority”

over interstate pipelines and compressor stations - FERC never

had it, but retains the benefit of field preemption.

The Commissioners also point out that Mountain Valley

has not alleged that the Fayette Zoning Code has “prohibit[ed]

or unreasonably delay[ed] construction of the Stallworth

Station.” (Comm’rs Resp. 14.) This argument invokes the

certificate’s instruction that certificate holders should

attempt to cooperate with state and local permitting

authorities. See Certificate ¶ 309. Coined the “rule of

reason,” FERC directs certificate holders to engage in “bona

fide attempts to comply with state and local requirements.”

Algonquin Gas Transmission, LLC, 154 FERC P 61,048, at ¶¶ 34-35

(Jan. 28, 2016). Importantly, however, FERC believes that the

NGA preempts local zoning ordinances, e.g. id., and the rule of

reason is secondary to FERC’s mandate that “[a]ny state or local

permits issued with respect to the jurisdictional facilities

authorized [in a certificate] must be consistent with the

conditions of th[e] certificate.” See Certificate ¶ 309. Thus,

the rule of reason is only tangentially related to the field

preemption inquiry.

Lastly, the Commissioners assert that Mountain Valley

has not stated why it needs to rezone all its property rather

than only the acreage necessary to build the compressor station,

(Comm’rs Resp. 15), and that the certificate does not explicitly

reflect that FERC considered local zoning regulations in

approving Mountain Valley’s project, (Comm’r Sur-reply 10).

These arguments are irrelevant to the question of whether the

NGA and FERC preempt the Fayette Zoning Code insofar as it

applies to the Stallworth Station. Furthermore, Mountain Valley

does not seek a declaration mandating the Commissioners to re-

zone the entire Stallworth Property. Mountain Valley instead

seeks a declaration applicable only to the Stallworth Station.

Accordingly, the Fayette Zoning Code is preempted

insofar as it applies to Mountain Valley’s FERC-approved

activities in connection with the Stallworth Station because it

attempts to regulate in a field occupied by the NGA and FERC.

See Algonquin LNG v. Loqa, 79 F. Supp. 2d 49, 52 (D.R.I. 2000)

(concluding that “there is no room for local zoning or building

code regulations on the” subjects of siting and building

jurisdictional facilities because such local regulations target

a field occupied by the NGA and FERC).

2. Conflict Preemption

Conflict preemption arises in two scenarios: [1]

“where it is ‘impossible for a private party to comply with both

state and federal requirements,’ or [2] where state law ‘stands

as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.’” Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995) (citation omitted) (quoting

English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), and Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). The Fourth Circuit

instructs that

[a]ssessing a conflict preemption claim requires “a

two-step process of first ascertaining the

construction of the two statutes and then determining

the constitutional question [of] whether they are in

conflict.” Chi. & Nw. Transp. Co. v. Kalo Brick &

Tile Co., 450 U.S. 311, 317 (1981) (internal quotation

marks omitted). In making this determination, a court

“should not seek out conflicts . . . where none

clearly exist[].” College Loan Corp. v. SLM Corp.,

396 F.3d 588, 595-96 (4th Cir. 2005) (internal

quotation marks and alteration omitted).

H&R Block E. Enters. v. Raskin, 591 F.3d 718, 723 (4th Cir.

2010) (last alteration added).

The Commissioners’ effort to regulate the siting of

jurisdictional facilities has obstructed Congress’s purposes in

enacting the NGA and empowering FERC with the Act’s

implementation. FERC considered the myriad factors outlined

above and decided that the public convenience and necessity

required the Stallworth Station be located at the Stallworth

Property. See Certificate ¶¶ 7, 310(A). The Commissioners,

considering the Fayette Zoning Code and factors significantly

overlapping with those considered by FERC, disagreed. (Verified

Compl. ¶ 68.) Compare 18 C.F.R. §§ 380.12, 380.15 with UDC §§

1001.II.A to J.

In this instance, “the principles of field and

conflict preemption . . . are mutually reinforcing.” PPL

EnergyPlus, 753 F.3d at 478. The court is cognizant that the

NGA will not preempt every state or local law with an incidental

impact on interstate gas transportation, and that in such a

system of “interlocking jurisdiction” tensions will doubtlessly

arise yet nevertheless coexist within the congressionally-

“assigned sphere[s].” Id. (quotation marks omitted) (quoting

Nw. Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. at 506,

515, 515 n.12); see also Schneidewind, 485 U.S. at 308. But the

Fayette Zoning Code’s attempt to regulate within the field

occupied by the NGA and FERC ran doubly awry of the Supremacy

Clause when the Commissioners denied Mountain Valley’s re-zoning

application, at least to the extent the application sought to

re-zone the property necessary for the Stallworth Station. The

denial interfered with the comprehensive and careful

consideration of FERC in siting the Stallworth Station and

deeming that site in furtherance of the public convenience and

necessity. Thus, “the impact of [local] regulation . . . on

matters within federal control is so extensive and disruptive of

[siting the Stallworth Station] that preemption is appropriate.”

PPL EnergyPlus, 753 F.3d at 478 (quotation marks omitted)

(quoting Nw. Cent. Pipeline, 489 U.S. at 517-18); see also

Algonquin LNG, 79 F. Supp. 2d at 52 (concluding that the NGA and

FERC conflict preempted local zoning regulations of whether a

natural gas company could expand a jurisdictional facility).

The Commissioners contend that “[Mountain Valley] can

clearly comply with both the NGA and the UDC by receiving

rezoning approval for the Stallworth location or by having a

denial overturned.” (Comm’rs Resp. 17-18.) Thus, they suggest

that compliance with both the certificate and the Fayette Zoning

Code is not impossible. (See id. 16-18.) For example, the

Commissioners note that Mountain Valley could have appealed the

decision to deny its re-zoning application since there is no

outright ban on re-zoning a parcel from R-R Rural Residential to

H-1 Heavy Industrial. (See id.)

Impossibility of compliance with both federal and

local regulation is not, however, the only measure of conflict

preemption. As explained above, the Commissioners’ denial of

Mountain Valley’s re-zoning application pursuant to the Fayette

Zoning Code impedes Congress’s objectives in enacting the NGA

and charging FERC with its implementation.

The Commissioners also invoke FERC’s rule of reason

described above, suggesting that pursuit of approval of the re-

zoning application is within reason since FERC granted Mountain

Valley three years to place the project into service;

alternatively, the Commissioners insist that there is a genuine

factual dispute as to whether the Fayette Zoning Code

unreasonably delays construction of the Stallworth Station.

(See Comm’rs Resp. 18.) Additionally, the Commissioners insist

that the Stallworth Property “is merely [Mountain Valley’s]

preferred location,” noting that Mountain Valley considered

alternate locations for its compressor station. (Id. (emphasis

omitted).)

Again, the rule of reason is more suggestion than

mandate, and it is nevertheless only tangentially related to

preemption. Furthermore, the three-year deadline is merely the

outer limit on placing the project into service, while economic

and pragmatic planning considerations compel completion as soon

as practicable and any unnecessary impediments will be at

Mountain Valley’s unrecoverable expense. And whether Mountain

Valley chose the Stallworth Property as a matter of preference

is beside the point: FERC concluded that the public convenience

and necessity requires construction there rather than any

possible alternatives.

Accordingly, the Fayette Zoning Code is preempted

insofar as it applies to Mountain Valley’s FERC-approved

activities in connection with the Stallworth Station because it

conflicts with congressional purposes and objectives outlined in

the NGA and by FERC.

C. Permanent Injunction

The scope of Mountain Valley’s requested injunctive

relief informs the permanent injunction analysis. An

injunction’s scope should be restricted to only that which is

“necessary to provide complete relief to the plaintiff.” PBM

Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir.

2011) (quoting Kentuckians for Commonwealth v. Rivenburgh, 317

F.3d 425, 436 (4th Cir. 2003)). In other words, an injunction

cannot be overbroad. Kentuckians for Commonwealth, 317 F.3d at

436; accord McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.

2012). Here, the injunctive relief sought is commensurate with

the court’s declaratory judgment: Mountain Valley seeks to

enjoin the Commissioners from enforcing the Fayette Zoning Code

against it insofar as the Fayette Zoning Code applies to its

FERC-approved activities in connection with Stallworth Station.

(See Verified Compl. WHEREFORE Clause Pt. 2.)

Importantly, Mountain Valley does not request an

injunction directing the Commissioners to re-zone the entire

Stallworth Property to H-1 Heavy Industrial, (see Mountain

Valley Reply 19), which would be more than necessary to build

the Stallworth Station, (see Cooper Decl. ¶ 7). It also bears

re-emphasis that Mountain Valley’s activities, including those

associated with the Stallworth Station, are circumscribed by

FERC’s regulation and oversight. So, enjoining the

Commissioners from enforcing the Fayette Zoning Code against the

Stallworth Station would not give Mountain Valley carte blanche

to do whatever it wants: Mountain Valley can do only what FERC

authorizes, just like the Fayette Zoning Code is preempted by

only what FERC authorizes.

With the requested injunction’s scope in mind, the

court finds that a commensurate injunction naturally flows from

a declaration that an enforced local law is preempted by federal

law. In practical effect, Mountain Valley’s requested

injunction will simply enjoin the Commissioners from enforcing a

law to the extent that they are already not allowed to enforce

pursuant to the declaratory judgment entered herein. Some

courts have awarded injunctive relief as an incident to

declaratory judgment in similar circumstances. See Valley View

Health Care, Inc. v. Chapman, 992 F. Supp. 2d 1016, 1033, 1050

(E.D. Cal. 2014); Ass’n of Banks in Ins., Inc. v. Duryee, 55 F.

Supp. 2d 799, 813 (S.D. Ohio 1999); Sandhills Ass’n of Realtors

v. Village of Pinehurst, No. 1:98CV00303, 1999 U.S. Dist. LEXIS

19094, at *49 (M.D.N.C. Nov. 8, 1999); cf. Hickory Fire Fighters

Ass’n v. Hickory, 656 F.2d 917, 922 (4th Cir. 1981) (stating

that “appropriate injunctive relief . . . is in order” if the

district court on remand finds that “city council meetings are

presently dedicated as public forums at certain times” that the

city council forbade certain individuals to speak).

Nevertheless, to obtain a permanent injunction, a

plaintiff must prove four elements “[a]ccording to well-

established principles of equity”:

(1) that it has suffered an irreparable injury; (2)

that remedies available at law, such as monetary

damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between

the plaintiff and defendant, a remedy in equity is

warranted; and (4) that the public interest would not

be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see

also EQT Prod. Co. v. Wender, 191 F. Supp. 3d 583, 589 (S.D. W.

Va. 2016) (quoting eBay). Although “[s]atisfying these four

factors is a high bar,” SAS Inst., Inc. v. World Programming

Ltd., 874 F.3d 370, 385 (4th Cir. 2017) (citing and quoting

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010),

and Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)), the

circumstances described above portend Mountain Valley’s ready

success.

First, this court has recently recognized that

Mountain Valley’s harms - economic losses unrecoverable at the

end of litigation, construction scheduling modifications, and

tarnished business reputation, (see Cooper Decl. ¶¶ 12-21) - are

irreparable. Mountain Valley Pipeline, LLC v. An Easement, 2018

U.S. Dist. LEXIS 28755, at *32-33. Second, like Mountain Valley

contends, (Mountain Valley Resp. 23), legal remedies are

unavailable to it because the Commissioners are immune from suit

under The Governmental Tort Claims and Insurance Reform Act.

See W. Va. Code Ann. §§ 29-12A-3 (commission is a county

subdivision under this article), -5(a)(1) (political subdivision

immune from liability for legislative or quasi-legislative

functions), -5(a)(9) (political subdivision immune from

liability for exercise of licensing powers) (LexisNexis 2018).

Third, the balance of hardships counsels in favor of equitable

relief since Mountain Valley possesses a certificate of public

convenience and necessity from FERC and accrues harm from delay,

while the Commissioners would simply be prohibited from

enforcing a local law to the extent that they are already not

allowed to enforce it. And fourth, the Fourth Circuit maintains

“that a certificate is imbued with the public interest pursuant

to the authority granted under the NGA.” Mountain Valley

Pipeline, LLC v. An Easement, 2018 U.S. Dist. LEXIS 28755, at

*35 (citing E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 830

(4th Cir. 2004)).

Accordingly, Mountain Valley is entitled to a

permanent injunction preventing the Commissioners from enforcing

the Fayette Zoning Code insofar as it applies to Mountain

Valley’s FERC-approved activities in connection with the

Stallworth Station.

IV. Conclusion

For the foregoing reasons, it is ORDERED that Mountain

Valley’s motion for summary judgment be, and hereby is, granted.

It is further ORDERED as follows:

1. The parties are directed to furnish within twenty days of

the entry of this memorandum opinion and order proposed

language for a judgment order granting Mountain Valley

declaratory and injunctive relief. The parties may jointly

file such language to the extent they can agree.

2. As an attachment to its proposed judgment order language,

Mountain Valley is directed to furnish a plat or survey,

together with a metes and bounds description, providing

definition to the area affected by the declaratory and

injunctive relief.

3. Mountain Valley is directed to notify the court once

construction of the Stallworth Station is complete and

Mountain Valley has begun occupying the approximately seven

acres needed for the operation of the Stallworth Station.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and to any

unrepresented parties.

ENTER: August 29, 2018