Washington Gas Light Company v. Prince George's County Council

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WASHINGTON GAS LIGHT COMPANY, 
Plaintiff-Appellant,
v.
THE PRINCE GEORGE’S COUNTY  No. 12-1443
COUNCIL SITTING AS THE DISTRICT
COUNCIL; PRINCE GEORGE’S COUNTY,
MARYLAND,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District Judge.
(8:08-cv-00967-DKC)
Argued: December 5, 2012
Decided: March 25, 2013
Before TRAXLER, Chief Judge, and FLOYD and
THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the
opinion, in which Chief Judge Traxler and Judge Floyd
joined.
COUNSEL
ARGUED: Linda M. Schuett, LINOWES & BLOCHER,
LLP, Annapolis, Maryland, for Appellant. David Eric Pom-
2 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
per, SPIEGEL & MCDIARMID, LLP, Washington, D.C., for
Appellees. ON BRIEF: Midgett S. Parker, Jr., Benjamin S.
Wechsler, LINOWES & BLOCHER, LLP, Annapolis, Mary-
land, for Appellant. Rajeshanand Kumar, Acting Principal
Counsel to the District Council, PRINCE GEORGE’S
COUNTY OFFICE OF LAW, Upper Marlboro, Maryland;
Scott H. Strauss, Peter J. Hopkins, SPIEGEL & MCDIAR-
MID, LLP, Washington, D.C., for Appellees.
OPINION
THACKER, Circuit Judge:
Appellant Washington Gas Light Company ("Washington
Gas") operates a natural gas substation on Chillum Road in
Prince George’s County, Maryland ("Chillum Site"). Begin-
ning in 2004, Washington Gas sought to expand that substa-
tion with the addition of a liquefied natural gas ("LNG")
storage tank. Washington Gas initially requested approval for
this proposed expansion from Prince George’s County
("County"), which denied the request based on recently
enacted county zoning plans ("County Zoning Plans").
Thereafter, Washington Gas filed a federal action seeking:
(1) a declaration that the County erroneously denied Washing-
ton Gas permission to proceed under 28 Md. Code Ann. § 7-
112 (the "mandatory referral statute"); (2) a declaration that
the Natural Gas Pipeline Safety Act ("PSA"), Natural Gas Act
("NGA"), and state law preempt the County Zoning Plans;
and (3) an injunction prohibiting the County from enforcing
the allegedly preempted County Zoning Plans.
The district court initially dismissed the mandatory referral
claim for failure to state a claim upon which relief could be
granted and, in the alternative, on Burford abstention grounds.
In a subsequent order, the district court granted summary
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 3
judgment in favor of the County on the state and federal pre-
emption claims, thus denying Washington Gas’s request for
declaratory and injunctive relief.
Washington Gas appeals the district court’s order, dated
February 9, 2009, dismissing the mandatory referral claim and
the district court’s subsequent order, dated March 9, 2012,
granting summary judgment on the federal preemption claims.1
We conclude (1) the district court did not abuse its discretion
in dismissing the mandatory referral claim pursuant to
Burford; (2) the PSA does not preempt the County Zoning
Plans because the PSA only preempts safety regulations and
the County Zoning Plans are not safety regulations; and (3)
the NGA does not preempt the County Zoning Plans because
Washington Gas is a local distributor of natural gas and,
therefore, is not subject to the NGA.
Therefore, the district court’s judgment, as set forth in its
February 9, 2009 and March 9, 2012 orders, is affirmed.
I.
A.
Washington Gas distributes natural gas to retail customers
in the Washington, D.C. area, including portions of Maryland
and Virginia. Currently, Washington Gas operates a natural
gas substation at the Chillum Site. The Chillum Site was ini-
tially approved for natural gas storage and compression in
1933. The scope of Washington Gas’s operations at the Chil-
lum Site has expanded, with County permission, on several
occasions since that time. Specifically, in 1955, the County
granted Washington Gas permission to construct a branch
headquarters at the Chillum Site. Then, in 1975 and again in
1
Washington Gas does not appeal the district court’s grant of summary
judgment on the state law preemption claims.
4 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
1982, the County permitted Washington Gas to construct
additional office and storage space there.
B.
Washington Gas began seeking approval to add LNG stor-
age tanks to the Chillum Site in 2004. In pursuit of this pro-
posed expansion, Washington Gas initially sought to invoke
the mandatory referral statute, Md. Code Ann., Land Use
§§ 20-301 — 20-307 (Lexis 2012).2 This statute, sets forth a
method through which certain public organizations may
obtain approval for a project without having to go through
local zoning review. See Pan Am. Health Org. v. Montgomery
County, 657 A.2d 1163, 1168 (Md. 1995) ("PAHO"). How-
ever, the County determined that the mandatory referral stat-
ute was inapplicable in this case. Thus, Washington Gas
ultimately sought to obtain zoning approval rather than to pro-
ceed through mandatory referral. Accordingly, the County
held several hearings on this zoning request.
However, on March 23, 2006, during the pendency of the
zoning proceedings, the County adopted the County Zoning
Plans. The County Zoning Plans, known as the West Hyatts-
ville District Overlay Zone ("WHDOZ") and the Transit Dis-
trict Development Plan ("TDDP"), were aimed at maximizing
"transit-oriented development" in the area around the West
Hyattsville Metro Center. The County Zoning Plans prohib-
ited all industrial usage in that area, which included the Chil-
lum Site. Based on this enactment, the County denied
Washington Gas zoning approval on August 24, 2006.
Thereafter, Washington Gas appealed to the County Coun-
2
At the time of the district court opinion, this provision was codified at
28 Md. Code Ann. § 7-112. However, effective October 1, 2012, the
Maryland General Assembly repealed, revised, and reenacted the previous
provision as Md. Code Ann., Land Use §§ 20-301 – 20-307 without sub-
stantive change.
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 5
cil, which denied the appeal. Washington Gas then appealed
the denial to the Circuit Court for Prince George’s County,
Maryland, which dismissed the appeal on ripeness and
exhaustion grounds.
C.
As the state and county proceedings were ongoing, Wash-
ington Gas also appeared before the Maryland Public Service
Commission ("MDPSC") in two separate matters relevant to
the proposed expansion. First, in November 2005, Washing-
ton Gas wrote a letter to the MDPSC requesting regulatory
approval for the proposed expansion. In particular, Washing-
ton Gas requested the MDPSC to certify that the proposed
expansion complied with Maryland’s regulations governing
thermal radiation and vapor exclusion zones.3 By letter dated
March 20, 2007, the MDPSC’s engineering staff determined
that Washington Gas’s proposal was consistent with the perti-
nent safety regulations. Notably, the letter was expressly lim-
ited to safety considerations, indicating, "this opinion refers to
analyses discussed herein and it does not state [the] Technical
Staff’s position on any other matter pertaining to the proposed
Chillum facility . . . ." J.A. 744.4
Second, in November 2008, Washington Gas initiated
MDPSC review of its annual Gas Portfolio Plan, a required
annual presentation in which a public utility details how it
intends to meet customer demand over the next five years.
This review is conducted pursuant to the MDPSC’s rate regu-
3
The Code of Federal Regulations requires all LNG facilities to estab-
lish a thermal radiation exclusion zone and a vapor dispersion exclusion
zone. See 49 C.F.R. §§ 193.2057, 193.2059 (2012). These zones are
designed to create safe separation between an LNG facility and surround-
ing land uses. This regulation was promulgated pursuant to the PSA and
adopted by the State of Maryland. See Md. Code Ann., Pub. Util. § 11-
202(a) (Lexis 2010).
4
Citations to the Joint Appendix ("J.A.") refer to the joint appendix
filed by the parties in this case.
6 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
lation authority as set forth in Md. Code Ann., Pub. Util. § 4-
402 (2012). As the district court noted, these annual reviews
are limited to rate regulation and, therefore, "[t]hey are not
general reviews of all aspects of public utilities in Maryland
and do not include thorough reviews of a public utility’s con-
formity with local land use plans." J.A. 1041. The proposed
expansion was discussed during that review. However,
because the proposed expansion, even if authorized by the
County, would not have been completed within the next five
years, the MDPSC did not express any opinion on the propri-
ety of the proposal.
D.
Following completion of the zoning proceedings and the
ensuing state appeal, Washington Gas brought this federal
action on April 16, 2008 in United States District Court for
the District of Maryland. The initial complaint was amended
on July 18, 2008 (the "first amended complaint"). The first
amended complaint sought (1) a declaration that Maryland’s
mandatory referral procedure applies to the LNG project (the
"mandatory referral count"); (2) a declaration that the PSA,
the NGA, and Maryland state law preempt the County Zoning
Plans; and (3) an injunction preventing the County from
enforcing the County Zoning Plans.
The County filed a motion to dismiss the first amended
complaint for failure to state a claim upon which relief could
be granted and, in the alternative, to abstain from asserting
jurisdiction over the case. Washington Gas filed a motion for
summary judgment. Prior to holding a hearing on these
motions, the district court issued a memorandum opinion on
January 30, 2009, outlining the various issues before the court
and expressing tentative opinions as to how it would resolve
those issues.
First, as to the County’s motion to dismiss, the district
court indicated it would likely deny that motion, except with
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 7
respect to the mandatory referral count. On that count, the dis-
trict court indicated it would likely grant the County’s motion
to dismiss for failure to state a claim on which relief could be
granted because "there is no state law cause of action delin-
eated, and certainly no federal question involved." J.A. 281.
As to the County’s motion to abstain, the district court indi-
cated it would likely deny that motion, again with the excep-
tion of the mandatory referral count. On that count, the district
court indicated that it would abstain from deciding the issue
because "[f]ederal adjudication [of the mandatory referral
count] would disrupt state efforts to establish a coherent pol-
icy regarding zoning procedures and the state mechanisms for
land use planning." J.A. 288.
Finally, as to Washington Gas’s summary judgment
motion, the district court indicated it would likely deny that
motion in full, as there still remained issues of fact relevant
to state and federal preemption.
The district court then conducted a hearing on these
motions on February 10, 2009. Later that day, the court
entered an order granting the County’s motion to dismiss and
the County’s motion to abstain as to the mandatory referral
count; denying the County’s motions to dismiss and to abstain
as to the other counts in the first amended complaint; and
denying the entirety of Washington Gas’s motion for sum-
mary judgment. In so doing, the district court expressly
adopted its reasoning articulated in its prior memorandum
opinion. The district court then granted Washington Gas leave
to file another complaint (the "second amended complaint").
The second amended complaint, filed on February 24,
2009, contained all of the original claims, excluding the man-
datory referral count, and added a few factual allegations.
Notably, the second amended complaint alleged, for the first
time, that Washington Gas is an interstate pipeline under the
8 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
PSA and that it was subject to regulation by the Federal
Energy Regulatory Commission ("FERC") under the NGA.
Washington Gas then filed a second motion for summary
judgment, which the district court denied. Specifically, the
district court rejected Washington Gas’s characterization of
its operations as purely interstate, concluding that Washington
Gas was, instead, an intrastate facility under the PSA and a
local distributor of natural gas under the NGA. Accordingly,
the district court held that Washington Gas is "subject to the
exclusive jurisdiction in the state in which its gas is con-
sumed, in this case Maryland." J.A. 529.
On March 28, 2011, Washington Gas filed its third—and
final—amended complaint (the "third amended complaint").
In the third amended complaint, Washington Gas averred that,
even assuming it is not an interstate pipeline, the County Zon-
ing Plans are still preempted by the NGA, the PSA, and state
law.5
Thereafter, the County filed a counter-claim seeking a dec-
laration that neither federal nor state law preempted the
County Zoning Plans. The parties then filed cross motions for
summary judgment. By a memorandum opinion dated March
9, 2012, the district court granted the entirety of the County’s
motion and denied the entirety of Washington Gas’s motion.
The district court rejected Washington Gas’s argument that
the PSA comprehensively regulates LNG facility siting, con-
cluding instead that the PSA’s preemptive effect only extends
to safety standards. Because the district court also found that
the County Zoning Plans were not, in fact, safety standards,
5
In as much as the third amended complaint re-asserted the claim that
Washington Gas is an interstate pipeline, that factual allegation is pre-
served for purposes of this appeal. As the district court noted, "[i]nsofar
as this count was premised on the theory that Washington Gas is an inter-
state facility, Washington Gas was only permitted to reassert its allega-
tions to preserve them for appeal." J.A. 1015.
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 9
the court concluded the County Zoning Plans are not pre-
empted by the PSA. Additionally, the district court concluded,
because Washington Gas is a local distributor of natural gas
exempt from regulation under the NGA, the NGA does not
preempt the County Zoning Plans. Washington Gas timely
appealed.
Washington Gas appeals the district court’s February 9,
2009 order arguing that the district court erred in abstaining
from deciding the mandatory referral count under Burford.
Washington Gas also appeals the district court’s March 9,
2012 order arguing (1) the PSA impliedly preempts the
County Zoning Plans because they are, in fact, safety regula-
tions; and (2) the NGA impliedly preempts the County Zon-
ing Plans by granting exclusive authority to the MDPSC.
II.
We review the district court’s decision to abstain under
Burford for abuse of discretion. See MLC Auto., LLC v. Town
of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008).
We review de novo the district court’s award of summary
judgment to the County on Washington Gas’s federal preemp-
tion claims. See Nat’l City Bank of Indiana v. Turnbaugh, 463
F.3d 325, 329 (4th Cir. 2006). Summary judgment is appro-
priate where "the evidence shows that no genuine issue of
material fact exists and the moving party is entitled to judg-
ment as a matter of law." Id.; see also Fed. R. Civ. P. 56(a).
Because the facts here are undisputed, this case presents only
questions of law.
10 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
III.
A.
Mandatory Referral
The district court abstained from resolving Washington
Gas’s mandatory referral count under the abstention doctrine
articulated in Burford v. Sun Oil, 319 U.S. 315 (2007).6 Under
this doctrine, "courts may abstain when the availability of an
alternative, federal forum threaten[s] to frustrate the purpose
of a state’s complex administrative system." Martin v. Stew-
art, 499 F.3d 360, 364 (4th Cir. 2007). Specifically, Burford
abstention is permissible when:
[F]ederal adjudication would "unduly intrude" upon
"complex state administrative processes" because
either: (1) "there are difficult questions of state law
whose importance transcends the result in the case
then at bar"; or (2) federal review would disrupt
"state efforts to establish a coherent policy with
respect to a matter of substantial public concern."
Id. (quoting New Orleans Pub. Serv. Inc. v. Council of New
Orleans, 491 F.3d 350, 361-63 (4th Cir. 1989) ("NOPSI")).
Ordinarily, federal courts have an "‘unflagging obligation
to exercise their jurisdiction.’" MLC Auto., 532 F.3d at 280(quoting Deakins v. Monaghan, 484 U.S. 193, 203 (1988)).
Thus, abstention "remains the exception, not the rule." Id.(quoting NOPSI, 491 F.3d at 359). However, abstention’s
"importance in our system of dual sovereignty cannot be
6
The County argues that the district court also dismissed the mandatory
referral count for failure to state a claim upon which relief can be granted
and that the district court’s judgment can be upheld on this basis alone.
However, because we agree with the district court’s decision to abstain
from resolving the mandatory referral count, we need not determine
whether this count does, in fact, state a colorable claim for relief.
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 11
underestimated." Id. (internal quotation marks omitted). Thus,
federal courts must "exercise their discretionary power with
proper regard for the rightful independence of state govern-
ments in carrying out their domestic policy." Burford, 319
U.S. at 318 (internal quotation marks omitted).
In concluding that Burford abstention was warranted here,
the district court indicated:
Federal adjudication [of the mandatory referral
count] would disrupt state efforts to establish a
coherent policy regarding zoning procedures and the
state mechanisms for land use planning. Plaintiff has
not alleged that the mandatory referral provision
interferes with any federal rights. Rather, Plaintiff
asks this court to declare that, under Maryland law,
public utilities are subject only to mandatory referral.
Such a declaration would have far reaching effects
that transcend the importance of this section.
J.A. 288-89.
As noted, Maryland’s mandatory referral statute exempts
certain public utility projects from local zoning review. In
particular, this statute enumerates the public entities to which
it applies, including "a publicly owned or privately owned
public utility." See Md. Code Ann., Land Use § 20-301 (Lexis
2012). Washington Gas argues that, as a privately owned pub-
lic utility, mandatory referral plainly applies to its proposed
expansion. Washington Gas further argues that the district
court abused its discretion in abstaining under Burford
because the issue involves, "a straightforward question of stat-
utory construction" and, therefore, "an adjudication of the
issue does not disrupt a coherent state policy with respect to
a matter of substantial public concern." Br. of Appellants 35.
The County counters that Washington Gas’s reading of the
statute is overly simplistic and that it ignores other language
12 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
in the mandatory referral statute which restricts the siting
authority of privately-owned public utilities. Specifically, the
County argues that the reference to privately-owned public
utilities in the first section of the statute refers only to the fact
that "certain public officials have siting authority to authorize
certain privately-owned utility structures," and that ultimate
authority to approve a proposal under the mandatory referral
statute "is conferred on public entities not a privately owned
utility." Br. of Appellees 54-55.
Moreover, the County points out that, in PAHO, we certi-
fied a similar question to the Maryland Court of Appeals.
Specifically, in PAHO, an international organization sought to
construct its headquarters in Montgomery County, Maryland,
notwithstanding local zoning restrictions that would have pro-
hibited that use. Before this court, the organization argued
that it was exempt from local zoning under the mandatory
referral statute. Rather than construe the mandatory referral
statute, this Court certified the question to the Maryland Court
of Appeals. Thus, in the present case, the County argues that
our decision to certify a question to the Maryland Court of
Appeals in PAHO demonstrates that the construction of Mary-
land’s mandatory referral statute is a difficult and important
issue of state law and, accordingly, that issue should be
decided by the state.
Notably, "cases involving questions of state and local land
use and zoning law are a classic example of situations where
Burford should apply." MLC Auto., 532 F.3d at 282 (internal
quotation marks omitted). While zoning and land use cases do
not automatically warrant Burford abstention, in cases where
"plaintiffs’ federal claims stem solely from construction of
state or local land use or zoning law, not involving the consti-
tutional validity of the same and absent exceptional circum-
stances . . . , the district courts should abstain under the
Burford doctrine to avoid interference with the State’s or
locality’s land use policy." Id.WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 13
In this case, resolution of Washington Gas’s mandatory
referral count turns on whether Maryland’s mandatory referral
statute should have been applied. That question turns entirely
on the meaning of the phrase "privately owned public utility"
as it is used in Maryland’s mandatory referral statute. Thus,
Washington Gas’s mandatory referral claim turns entirely on
the construction of state or local land use law. In these cir-
cumstances, precedent dictates that Burford abstention is
appropriate.
B.
Federal Preemption
Under the Supremacy Clause of the United States Constitu-
tion, federal law is "the supreme Law of the Land." U.S.
Const. art. VI, cl. 2. Accordingly, "state law that conflicts
with federal law is ‘without effect.’" See AES Sparrows Point
LNG, LLC v. Smith, 527 F.3d 120, 125 (4th Cir. 2008) (quot-
ing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516
(1992)). In determining whether a state law is preempted, "we
are 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)).
Preemption generally occurs in one of three circumstances.
First, a federal law preempts state law when Congress
expressly declares its intention that state law be preempted.
See Epps, 675 F.3d at 322; see also Cipollone, 505 U.S. at
517. Second, a federal law impliedly preempts state law when
Congress has occupied the field by "regulating so pervasively
that there is no room left for the states to supplement federal
law." Epps, 675 F.3d at 322 (internal quotation marks omit-
ted); see also Schneidewind v. ANR Pipeline Co., 485 U.S.
293, 300 (1988). Third, federal law preempts state law when
the federal and state laws actually conflict. See Epps, 675
14 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
F.3d at 322. Ordinarily, "Congress’ enactment of a provision
defining the pre-emptive reach of a statute implies that mat-
ters beyond that reach are not pre-empted." Cipollone, 505
U.S. at 517.
With these general preemption principles in mind, we turn
first to the question of whether the PSA preempts the County
Zoning Plans.
1.
PSA Preemption
a.
Statutory Framework
The PSA’s stated purpose is to "provide adequate protec-
tion against risks to life and property posed by pipeline trans-
portation and pipeline facilities" by empowering the Secretary
of Transportation to "prescribe minimum safety standards for
pipeline transportation and for pipeline facilities." 49 U.S.C.
§ 60102(a)(1)-(2) (2006). Accordingly, the PSA generally
authorizes the Secretary of Transportation to prescribe and
enforce minimum safety standards for locating new LNG
facilities and for the design, installation, construction, inspec-
tion, and testing of those facilities. See 49 U.S.C. § 60103(a)-
(b) (2006).
However, under the PSA, the Secretary of Transportation
may not "prescribe or enforce safety standards for an intra-
state pipeline facility or intrastate pipeline transportation to
the extent that the safety standards and practices are regulated
by a State authority . . . that submits to the Secretary annually
a certification for the facilities and transportation . . . ." 49
U.S.C. § 60105(a) (2006). In Maryland, the MDPSC is the
authorized state authority that submits the required annual
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 15
certifications to the Secretary of Transportation. See MD
Code Ann., Public Util. § 11-202(a) (Lexis 2010).
The PSA contains an express preemption provision, which
states, in relevant part:
Preemption.—A State authority that has submitted a
current certification under section 60105(a) of this
title may adopt additional or more stringent safety
standards for intrastate pipeline facilities and intra-
state pipeline transportation only if those standards
are compatible with the minimum standards pre-
scribed under this chapter. A State authority may not
adopt or continue in force safety standards for inter-
state pipeline facilities or interstate pipeline transpor-
tation . . . .
49 U.S.C. § 60104(c) (2006). Accordingly, we have held that
the PSA expressly preempts state and local law in the field of
safety. See, e.g., Tenneco Inc. v. Pub. Serv. Comm’n of W.
Va., 489 F.2d 334, 336 (4th Cir. 1973) ("The [PSA’s] text, its
legislative history, administration implementation, and judi-
cial interpretation, attest to federal preemption of the field of
safety with respect to the establishment and enforcement of
standards regulating the interstate transmission of gas by pipe-
line.")
b.
Analysis
Washington Gas argues that the PSA preempts the County
Zoning Plans expressly, impliedly, and by conflict. We dis-
agree on all counts. As noted, the PSA expressly preempts the
field of pipeline safety. See 49 U.S.C. § 60104(c). Here, how-
ever, because the County Zoning Plans are not safety regula-
tions, they do not come within the express preemption
provision of the PSA. As the district court properly held, the
16 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
County Zoning Plans are land use regulations designed to fos-
ter transit-oriented development around the West Hyattsville
Metro Station. This interpretation finds support in the final
version of the TDDP, which indicates that its main purpose is
to "maximize the public benefits from the West Hyattsville
Metro Station." S.J.A. 25.7 To further this purpose, the TDDP
articulates the following specific goals:
• Promote [transit-oriented development] near the
Metro Station and create a sense of place consis-
tent with the neighborhood character areas.
• Ensure that all new development or redevelop-
ment in the transit district is pedestrian-oriented.
• Restore, protect, and enhance the environment by
protecting environmentally sensitive areas, mini-
mizing the impacts of development, and expand-
ing recreational opportunities and trail and
bikeway connections.
• Maximize residential development opportunities
within walking distance of the Metro station.
Id. In light of these goals, it is clear that the County Zoning
Plans are primarily local land use regulations as opposed to
safety regulations.
In Texas Midstream Gas Servs. v. City of Grand Prairie,
608 F.3d 200 (5th Cir. 2010), the Fifth Circuit reached a simi-
lar conclusion on analogous facts. There, a gas company
sought to construct an interstate natural gas pipeline facility
in Grand Prairie, Texas. Under Grand Prairie’s zoning regula-
tions, the facility would have needed to comply with a 300
foot "setback" requirement under which all facilities needed
7
Citations to the Supplemental Joint Appendix ("S.J.A.") refer to the
supplemental joint appendix filed by the parties in this appeal.
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 17
to be set back at least 300 feet from a nearby road. The gas
company sought a declaration that the setback requirement
was preempted by the PSA arguing, as Washington Gas does
here, that the PSA broadly preempts the siting of natural gas
facilities. The Fifth Circuit disagreed, holding that the PSA’s
preemptive effect is limited to the field of pipeline safety and
that the setback requirement was not a safety standard but,
rather, was primarily aimed at developing "neighborhood"
aesthetics in the area. See Texas Midstream, 608 F.3d at 211("[T]he setback requirement primarily ensures that bulky,
unsightly, noisy compressor stations do not mar neighborhood
aesthetics.")
Washington Gas attempts to distinguish Texas Midstream
by arguing that, in that case, the local regulation did not com-
pletely prohibit the company from siting the proposed facility
in its preferred location, whereas, in this case, the County
Zoning Plans would completely prohibit Washington Gas
from using its preferred location. This is a distinction without
a difference. Logically, the power to impose a zoning require-
ment includes the power to preclude any proposed usage of
the zoned area that cannot comply with such requirement.
Thus, the fact that the County Zoning Plans arguably have a
more significant effect on Washington Gas than the setback
requirement did on the regulated utility in Texas Midstream
is of no moment here.
Washington Gas also argues that the County Zoning Plans
are "safety regulations in disguise" and, therefore, are pre-
empted by the PSA. Rep. Br. of Appellants 13. The district
court properly rejected this argument. At their core, the
County Zoning Plans are local land use provisions designed
to foster residential and recreational development. Even
assuming safety concerns played some part in the enactment
of the County Zoning Plans, those concerns would have been
merely incidental to the overall purpose of the County Zoning
Plans. This is insufficient to justify a finding that the County
Zoning Plans were, in fact, safety regulations. See, e.g., Texas
18 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
Midstream, 608 F.3d at 211 ("However, this incidental salu-
tary effect on fire safety does not undermine Congress’s intent
in promulgating the PSA, as it is neither direct nor substan-
tial.")
Washington Gas next argues that, through the PSA, Con-
gress "comprehensively" addresses the siting of LNG facili-
ties and, therefore, the PSA and the regulations adopted
thereunder impliedly preempt the County Zoning plans. Br. of
Appellants 24. We reject this argument. Because the County
Zoning Plans are beyond the scope of the PSA’s express pre-
emption provision, it is unlikely that they are impliedly pre-
empted. See, e.g., Coll. Loan Corp. v. SLM Corp., 396 F.3d
588, 596 n.5 (4th Cir. 2005) ("Because Congress deemed it
necessary to specifically preempt certain state laws, it is clear
that Congress could not have intended the [Higher Education
Act] to so ‘occupy the field’ that it would automatically pre-
empt all state laws." (quoting Cipollone, 505 U.S. at 517)).
Even if we were to find that the PSA has preemptive effect
beyond the express preemption provision discussed in 49
U.S.C. § 60104(c), we would not conclude that Congress
intended the PSA to occupy the field of natural gas facility
siting. Specifically, the PSA expressly circumscribes the Sec-
retary of Transportation’s role in this area, indicating, "[t]his
chapter does not authorize the Secretary of Transportation to
prescribe the location or routing of a pipeline facility." 49
U.S.C. § 60104(e) (2006).
Finally, we reject Washington Gas’s argument that the PSA
preempts the County Zoning Plans by conflict. Conflict pre-
emption exists where a state statute "stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress." Chi. & N.W. Transp. Co. v. Kalo
Brick & Tile Co., 450 U.S. 311, 317 (1981). Here, the County
Zoning Plans do not stand as an obstacle to the accomplish-
ment of the full purposes of Congress, because, as noted
above, Congress’ purpose in enacting the PSA was to create
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 19
federal minimum safety standards on all natural gas pipeline
facilities. See 49 U.S.C. § 60102(a). Because the County Zon-
ing Plans are not safety standards, they do not stand as an
obstacle to the accomplishment of this purpose.
Moreover, Washington Gas has repeatedly indicated that
there are alternative locations, albeit more costly, that it could
use for the proposed expansion. While Washington Gas
objects to the use of these alternatives based on the cost, this
objection is of no constitutional significance. See Texas Mid-
stream, 608 F.3d at 211 ("[Texas Midstream] raises the pros-
pect that an operator of a compressor station may have to
acquire more land to comply with both requirements. This
may cost [Texas Midstream] money, but it does not thwart the
full purposes and objectives of Congress." (internal citations
and quotation marks omitted)). Thus, Washington Gas could
comply with both statutes simultaneously if it so chooses.
Therefore, there is no conflict between the PSA and the
County Zoning Plans.
2.
NGA Preemption
a.
Statutory Framework
The NGA was designed to ensure that natural gas consum-
ers have access to an adequate supply of natural gas at "just
and reasonable rates." See Pub. Serv. Comm’n of State of N.Y.
v. Fed. Power Comm’n, 543 F.2d 757, 792 (D.C. Cir. 1974).
Accordingly, the NGA grants FERC plenary power over (1)
the transportation of natural gas in interstate commerce; (2)
the sale of natural gas in interstate commerce; and (3) the
companies who transport and sell natural gas in interstate
commerce. See 15 U.S.C. § 717(b) (2006). Similarly, the
NGA gives FERC jurisdiction over the siting of natural gas
20 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
facilities, as a natural gas company must obtain a certificate
of public convenience and necessity from FERC before con-
structing an interstate natural gas facility. See 15 U.S.C.
§ 717f(c)(1)(A) (2006).
However, the NGA only regulates the interstate natural gas
industry. Specifically, 15 U.S.C. § 717(b) further indicates,
"[FERC’s authority] shall not apply to any other transporta-
tion or sale of natural gas or to the local distribution of natural
gas or to the facilities used for such distribution or to the pro-
duction or gathering of natural gas." Thus, as the Supreme
Court has held, the NGA "expressly carves out a regulatory
role for states . . . providing that the States retain jurisdiction
over intrastate transportation, local distribution, and distribu-
tion facilities, and over ‘the production or gathering of natural
gas.’" Northwest Cent. Pipeline Corp. v. State Corp. Comm’n
of Kansas, 489 U.S. 493, 507 (1989) (quoting 15 U.S.C.
§ 717(b)).
Notably, not all natural gas companies whose operations
cross state lines are considered "interstate" for purposes of the
NGA. Specifically, 15 U.S.C. §§ 717f(f)(1)-(2) (2006) pro-
vides:
(f) Determination of service area; jurisdiction of
transportation to ultimate consumers
(1) The Commission, after a hearing had upon its
own motion or upon application, may determine the
service area to which each authorization under this
section is to be limited. Within such service area as
determined by the Commission a natural gas com-
pany may enlarge or extend its facilities for the pur-
pose of supplying increased market demands in such
service area without further authorization; and
(2) If the Commission has determined a service area
pursuant to this subsection, transportation to the ulti-
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 21
mate consumers in such service area by the holder of
such service area determination, even if across State
lines, shall be subject to the exclusive jurisdiction of
the State commission in the State in which the gas is
consumed. This section shall not apply to the trans-
portation of natural gas to another natural gas com-
pany.
15 U.S.C. § 717f(f)(1)-(2). Accordingly, natural gas compa-
nies operating pursuant to a service area designation under
this section are permitted to "enlarge or expand facilities to
supply market requirements without further Commission
approval." Washington Gas Light Co., 74 FERC ¶ 61,048, at
p. 61,106 (Jan. 22, 1996).
b.
Analysis
On appeal, Washington Gas argues that the NGA transfers
jurisdiction over the enlargement or expansion of Washington
Gas’s facilities to the MDPSC and that this delegation of
authority preempts the County Zoning Plans.8 We disagree.
For decades, Washington Gas has operated pursuant to a
service area designation under § 717f(f) of the NGA. See
Washington Gas Light Co., 28 F.P.C. 753 (1962) (granting
Washington Gas’s initial request for a service area determina-
tion); Washington Gas Light Co., 74 FERC ¶ 61048 (Jan. 22,
1996) (expanding the scope of Washington Gas’ service area
determination). Thus, as the district court observed, "FERC‘s
issuance of a blanket certificate resulted in the designation of
a service area that, although crossing state lines, treats Wash-
8
Washington Gas does not identify the preemption doctrine on which it
relies in making this argument. However, this omission is of no moment
here, as both Congress and FERC have expressly indicated that the NGA
does not apply to local distribution pipelines like Washington Gas.
22 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
ington Gas as a local distribution company." J.A. 519.
Accordingly, Washington Gas is permitted to expand its facil-
ities without further authorization from FERC. See Washing-
ton Gas Light Co., 74 FERC ¶ 61048 (Jan. 22, 1996).
Congress confirmed this reading in the legislative history to
a recent amendment to § 717f(f).9 Specifically, the Senate
Report indicates
The Natural Gas Act requires the Federal Energy
Regulatory Commission ("FERC") to regulate natu-
ral gas companies that provide service in interstate
commerce. Companies that sell gas and provide
appurtenant service to retail customers are local dis-
tribution companies, and generally are regulated by
individual state public utility commissions.
In a handful of instances, there are local distribution
companies that have customers in service areas that
straddle state lines. Because they provide service in
more than one state, they ordinarily would be regu-
lated by FERC. However, section 7(f) of the Natural
Gas Act allows FERC to make a determination that
such a company is performing a local distribution
function. If it makes such a determination, the natu-
ral gas company may "enlarge or extend its facili-
ties" in that service area for the purpose of
supplying increased market demands in the service
area without further authorization from FERC.
Washington Gas Light Company, which serves the
D.C. metropolitan area, is an example of a 7(f) com-
pany.
S. Rep. No. 100-486, at 2 (1988) (emphasis supplied),
reprinted in 1988 U.S.C.C.A.N. 2692, 2692-93.
9
In particular, this amendment, passed in 1988, added the language that
is now codified § 717f(f)(2).
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 23
Based on this designation, the parties agree that FERC
lacks jurisdiction over the proposed expansion at the Chillum
Site. However, Washington Gas argues that § 717f(f) transfers
jurisdiction over the enlargement or extension of its facilities
to the MDPSC and that this transfer of jurisdiction preempts
the County Zoning Plans. However, the plain language of
§ 717f(f) does not support this assertion.
Specifically, § 717f(f)(1) governs the expansion of natural
gas facilities and provides that, if FERC has designated a ser-
vice area, a natural gas company operating pursuant to that
designation may expand its facilities without further FERC
authorization. Notably, however, this section does not address
which, if any, other regulatory bodies actually exercise such
authority. Rather, § 717f(f)(1) operates negatively as exemp-
tion from FERC regulation, not as a positive grant of author-
ity to the MDPSC.10 Thus, Washington Gas’s argument that
§ 717f(f) transfers jurisdiction over expansion of its facilities
to the MDPSC finds no support in § 717f(f)(1).
Similarly, Washington Gas’s interpretation is unaided by
§ 717f(f)(2). Section 717f(f)(2) expressly applies to the trans-
portation of natural gas and provides that regulation of trans-
portation services by a § 717f(f) designee is "subject to the
exclusive jurisdiction of the State commission in the State in
which the gas is consumed." 15 U.S.C. § 717f(f)(2). Thus,
while § 717f(f)(2) grants the MDPSC exclusive jurisdiction to
regulate a part of Washington Gas’s operations, it does so
only insofar as transportation is concerned. However, this is
a case about facility expansion, not transportation. Thus,
§ 717f(f)(2)’s grant of exclusive jurisdiction to the MDPSC to
10
Though Washington Gas takes a different position on appeal, Wash-
ington Gas previously acknowledged that this was the correct interpreta-
tion of § 717f(f)(1) in a hearing before the district court. See J.A. 1096
("[Appellant’s Counsel]: [§ 717f(f)(1)] does not say anything more than
‘[y]ou do not need to have FERC approval.’ It does not expressly state that
you must go to the, here the Maryland PSC, for any kind of regulatory
oversight at all.").
24 WASHINGTON GAS v. PRINCE GEORGE’S COUNTY
regulate Washington Gas’s transportation activities is not rel-
evant to the question of whether the NGA preempts the
County Zoning Plans.
In arguing that the NGA vests the MDPSC with exclusive
jurisdiction over the expansion of Washington Gas’ facilities,
Washington Gas appears to conflate the two provisions of
§ 717f(f). However, this is not appropriate. As the district
court held, these two provisions, separated by an "and," regu-
late entirely different areas of the natural gas industry: trans-
portation and siting. Thus, the fact that § 717f(f)(2) vests
exclusive jurisdiction over transportation in state public ser-
vice commissions does not imply that Congress intended to
do the same thing for siting in § 717f(f)(1).11
Moreover, the only authority Washington Gas cites in sup-
port of its interpretation is Appalachian Power Co. v. Public
Serv. Co. of W. Va., 812 F.2d 898 (4th Cir. 1987). In Appala-
chian Power, we held that the Federal Power Act preempted
the West Virginia Public Service Commission’s attempt to
regulate an agreement among several utility companies
engaged in the transmission of energy in interstate commerce.
However, because Appalachian Power did not involve FERC
regulation under the NGA and because the regulated entities
in Appalachian Power were engaged in interstate commerce,
Washington Gas’s reliance on Appalachian Power in the pres-
ent matter is misplaced.
Finally, Washington Gas asserts that this court should fol-
low the United States District Court for the District of Rhode
11
In fact, the absence of such language in § 717f(f)(1) is a strong indica-
tion that Congress did not intend for state public service commissions to
have such authority. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,
452 (2002) ("[W]hen ‘Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same Act, it is gener-
ally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’") (quoting Russello v. United States, 464
U.S. 16, 23 (1983)).
WASHINGTON GAS v. PRINCE GEORGE’S COUNTY 25
Island’s approach in Algonquin LNG v. Loqa, 79 F. Supp. 2d
49 (D.R.I. 2000), and conclude that the NGA does, in fact,
preempt the County Zoning Plans. Washington Gas’s reliance
on Algonquin is misplaced. In that case, the operator of an
interstate natural gas pipeline facility sought a declaration that
a Providence, Rhode Island ordinance requiring the operator
to obtain local zoning approval for a proposed modification
was preempted by the NGA and the PSA. The district court
agreed, holding, "[t]hese statutes, together with the regula-
tions promulgated pursuant to them, establish a comprehen-
sive scheme of federal regulation that the Supreme Court has
said confers upon FERC exclusive jurisdiction over the trans-
portation and sale of natural gas in interstate commerce."
Algonquin, 79 F. Supp. 2d at 51. Accordingly, the Algonquin
court held that the city zoning ordinance was preempted.
Algonquin is distinguishable, however, because the facility
at issue there was an interstate facility and, therefore, both the
NGA and the PSA applied. Because Washington Gas is a
local distribution pipeline under the NGA, the "comprehen-
sive scheme" of federal regulation on which the Algonquin
court relied is inapplicable. Given that Algonquin’s preemp-
tion holding rested entirely on the existence of this "compre-
hensive scheme" of regulation, that case has no persuasive
value here.
IV.
In summary, we conclude that (1) the district court properly
abstained from deciding the mandatory referral count based
on Burford abstention; (2) the PSA does not preempt the
County Zoning Plans because the PSA only preempts safety
regulations and the County Zoning Plans are not safety regu-
lations; and (3) the NGA does not preempt the County Zoning
Plans because the NGA only preempts state and local laws
governing interstate natural gas operations and, per the NGA,
Washington Gas is a local distribution company. Therefore,
the judgment of the district court is
AFFIRMED.