Mountain Valley Pipeline, LLC v. Wender

• Decision Date: 29 August 2018
• Docket Number: Civil Action No. 2:17-cv-04377
• Citation: 337 F.Supp.3d 656
• Court: U.S. District Court — Southern District of West Virginia
• Parties: MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, v. 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.

337 F.Supp.3d 656

MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff,

v.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.

Civil Action No. 2:17-cv-04377

United States District Court, S.D. West Virginia, at Charleston.

Signed August 29, 2018

Christopher B. Power, Jennifer Jo Hicks, Timothy M. Miller, Babst Calland Clements & Zomnir, Charleston, WV, for Plaintiff.

Drannon L. Adkins, Wendy E. Greve, Pullin Fowler Flanagan Brown & Poe, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr., United States District Judge

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 etseq. 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, 108 S.Ct. 1145, 99 L.Ed.2d 316 (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 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, 108 S.Ct. 1145, 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.)

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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505 (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, 106 S.Ct. 2505 ; 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 WL 1004745, at *5, 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.

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, 57 S.Ct. 461, 81 L.Ed. 617 (1937) ; see also MedImmune, Inc. v. Genentech, Inc., 549 U.S....