Atlantic Coast Pipeline, LLC (“Atlantic”) recently won another battle in its quest to construct an interstate natural gas pipeline across West Virginia, Virginia, and North Carolina. Twenty-seven of its planned 604 miles traversed Nelson County, Virginia. Nelson County’s zoning ordinance required a facility used to “transport” hazardous materials across a Special Flood Hazard Area obtain a discretionary variance from the Nelson County Board of Zoning Appeals. Not wanting the pipeline and contending it would adversely impact its floodplain, the Nelson County Board of Zoning Appeals denied Atlantic’s variance request.
Atlantic sued in the federal Western District of Virginia, seeking a declaratory judgment that federal authorization of the pipeline under the Natural Gas Act preempted Nelson County’s zoning regulations as applied to the pipeline. The Court agreed with Atlantic. The Court held that obstacle preemption excused Atlantic from complying with Nelson County’s amended zoning regulation: a “state law that ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’ of a federal law is preempted.”
The Court’s ruling was based on its recognition that FERC issued Atlantic a Certificate of Public Convenience and Necessity (“CPCN”) after completing a comprehensive environmental review of the project including the preparation of an over 800 page Environmental Impact Statement (“EIS”). The EIS included a floodplain analysis concluding that the underground pipeline would “not result in the loss of floodplain storage” and the impact of accompanying above-ground structures would be minimal. Accordingly, the Court held that a locality in the path of a FERC-approved project cannot halt it entirely by second-guessing FERC’s environmental findings. The Court also held that deference to “FEMA-approved” local regulations in the U.S. Army Corps of Engineer’s permitting framework under Nationwide Permit 12 did not apply here, because Nelson County’s zoning amendment exceeded the scope of the FEMA-approved model floodplain regulations.
Atl. Coast Pipeline, LLC v. Nelson Co. Bd. of Supervisors, No. 3:18-CV-00115, 2020 WL 1151073, at *1 (W.D. Va. Mar. 9, 2020).
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